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
------- |