3 EPA
United Sti
Environmental Protection
Agency
Office of
Solid Warn and
Emergency Response
DIRECTIVE NUMBER
9375.1-06
TITLE: Cooperative Agreements with Political
Subdivisions for Remedial Response
APPROVAL DATE: 07/12/37
EFFECTIVE DATE: 07/12/37
ORIGINATING OFFICE: OERR
Q FINAL
D DRAFT
STATUS: I
[ ]
[
A- Pending OMB approval
3- Pending AA-OSWER approval
C- For review &/or comment
REFERENCE (other documents):
Supplements Directive 9375.1-04
] D- In development or circulating
headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Number
9375.1-06
2, Originator Information
Name of Contact Person
Deborah Swichkow
Mail Code
WH-548E
Offio
:6*ERR/HSCD
relei
3. Title
Award of Cooperative Agreements to Political Subdivisions
4. Summary of Directive (include brief statement of purpose)
Establishes procedures for providing funding to political subdivisions to
perform remedial activities through Cooperative Agreements.
'' ^uperfund.CERCLA,State participation,response agreements, procedures, political
subdivisions
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
State Participation in the Superfund Program
Yes What directive (number, title)
Yes What directive (number, tftle) 9375.1-04
/.^Draft Level
A - Signed by AA/DAA
8 -- Signed by Office Director
C - For Review & Comment
D -- In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
OSWER Directives System Format Standards.
'ffice Directives Coordinator
ves Coordinator.
Date .
g/W/7
Dat£7 , / //>*/
10.
s Officer
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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NI :£;- 77ATE5 ENVIRONMENTAL PROTECTION AGENCY
WASHING TON. C.C. 20460
FEB I 2 1987
WASTE
MEMORANDUM
SUBJECT: Cooperative Agreements With Pol i t i ca LgSubdi vi s i ons
for Remedial Response (Directive NB .^37 5 . 1-6 )
FROM: Henry L. Longest II, Director
Office of Emergency and Remedia1 AifeTJft) n s e
TO: Waste Management Division Directors
Regions I through X
Attached is the guidance for cooperative agreements with
political subdivisions (OSWER Directive 9375.1-6). It provides
information to the Regions, States,.and political subdivisions
on the criteria, procedures and requirements for a political
subdivision lead for remedial activities at NPL sites. This
guidance was developed via the Multi-Site Cooperative Agreement
(MSCA) Workgroup that included State representatives from the
Association of State and Territorial Soli a Waste Management
Officials as well as the Regions, the Office of Waste Programs
Enforcement, the Office of General Counsel and the Grants Admini
stration Division. Draft guidance developed by the workgroup
was distributed to the Regions for their comment on October 7,
1986.
Background
CERCLA section 104(d)(l.) authorizes EPA to enter into a
cooperative agreement with a State or political subdivision that
has the capability to carry out fund-financed response actions
taken at a site, but CERCLA requires States not political subdi-
visions, to provide the required section 104(c)(3) assurances.
While SARA retains the flexibility to enter into a cooperative
agreement with either a State or political subdivision, it
increases State involvement during remedial response and still
requires a State to make the required assurances. The guidance
describes two options for political subdivision-lead actions
that ensure State involvement during remed.ial response and
provide the mechanism for obtaining the State's required
assurances.
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Guidance Summary
EPA may enter into a cooperative agreeiient with a State
that intends to pass funds through to a political subdivision
that will actually perform the work. This relationship is similar
to current State/contractor relationships and is consistent with
40 CFR 33.250 requirements pertaining to intergovernmental agreements
between State and local governments. This is the easiest way to
provide assistance to a political subdivision for its participation
during response and for obtaining a State's required assurances.
The second option discussed in the guidance permits EPA
to enter into a cooperative agreement with a political subdi-
vision and describes the three-party contract between EPA,
the State, and the political subdivision necessary to ensure
State involvement during remedial response and to obtain t'ne
State's required assurances. The State can be awarded a
cooperative agreement for management assistance.
Summary of Comments on Draft Guidance
Although the majority of commenters responded positively
to the use of a three party contract, two commenters were
concerned that such a mechanism would causo delays in performing
site activities since SARA requires more .--;oid clean up of sites.
We reexamined the rationale for regui'ing the use of the
three party contract and find it provides :;ie best means of
ensuring coordination and legal recourse for all parties to
the contract. Although development of the three party agreement
will requira time, it is preferable to obtain agreement of
all three parties upfront rather than encounter disagreements
during the course of the project. If a three party agree in ent
is untimely or cumbersome, a political suDdivision lead may
not be the best choice for that particular site.
For a cooperative agreement to a State with a "pass through"
to a political subdivision, a commentar wanted EPA to have
approval authority over tha Intergovernmental Agreement between
the State and the political subdivision. This is inconsistent
with the Intent of intergovernmental agreements developed in
accordance with 40 CFR 33.250 and with our guidance that
encourages States to assume responsibility for managing fund-
financed actions consistent with applicable regulations and
program requirements.
For a cooperative agreement directly with a political
subdivision, a commenter wanted EPA to require the State
to submit a written determination of the validity of a political
subdivision as such. This procedure is not necessary since
this determination is up to the State, not EPA. The State
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would not transmit to EPA a request from an entity that did
not meet its definition of a political subdivision. However,
it is EPA's responsibility to determine whether the political
subdivision is eligible for assistance and capable of carrying
out the response actions.-
A commenter thought that the request for a cooperative
agreement with a political subdivision must come from the State
and suggested that a letter from the State approving the
subdivision lead would be sufficient. This is the intent of
the guidance and it 'nas been rewritten for clarity.
We agreed that due to resource requirements, it may be
difficult for the States to evaluate the political subdivision's
capabilities. Therefore, the guidance has been changed to
provide the option of either the State providing the evaluation
of the political subdivision's capabilities or the political
subdivision providing documentation of its capabilities to
EPA via the State.
Several commenters suggested specific changes in the
guidance to reflect the situation in their particular Region.
We have developed the guidance on a 1 e v e that is applicable
to all Regions and expect the Regions to cailor their imple-
mentation to the particular situation. "ie actual title of
EPA's representative :nay vary from Regio" to Region depending
on the stage of development of the draft cooperative agreement
and who is designated to interact with the State. This may
be the 3PM or a different individual. (Tire State Participation
Manual describes the roles of the RPM and the cooperative
agreement project officer.)
A commenter requested that we identify the roles of
the EPA RPM and the political subdivision representative as
well as the State Project Officer. In actuality, the RPM
role does not differ from the one he/she plays during the
development and execution of a State-lead cooperative
agreemew-t or a Federal-lead SSC. The role of the represen-
tative of the political subdivision is the same as that of
the State project officer during a State-lead remedial project.
A highly detailed list of duties and points of coordination
would not cover all the potential responsibilities for all
projects. Therefore, we have indicated the general duties
of EPA's RPM and the political subdivision's representative
in the guidance and have referenced that the details of
these roles can be found in the State-lead RPM manual. It
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should be noted that although the political 3 j b d i vision has
the same type of involvement in coordination activities as
the State, it does not have all tie same responsibilities
as are required of the State. These differing State responsi-
bilities include provision of CERCLA'104(c)(3) assurances,
concurrence in the ROD and deletion of the site from the NDL.
Several commenters asked for clarification of the
enforcement mechanism for a political subdivision lead
project. These hava been described in the guidance and as
foilows :
Under CERCLA section 104(d)(2), when EPA enters into a
contract or cooperative agreensnt and the recipient State or
oolitical subdivision fails to comply with any requiraments ,
EPA may seek in the appropriate Federal district court to
enforce the contract or agreement or to recover any funds
advanced or any costs incurred due to breach of the contract
or agreement by the State or political subdivision. Further-
more, the performance of the political subdivision on the
project can be enforced under the cooperative agreement.
The duties and responsibilities of EPA, the political subdivision
and the State are enforceable under the tems of- the three
party contract.
Additions or further clarifications : the guidance were
also made in response to comments that ac-dressed State
concurrence on the ROD and N P L deletion, submission of the
community relations plans, and the quality assurance project
olans as well as various minor editorial changes or additions.
Conclus i on
Regions are encouraged to communicate with Headquarters
during the implementation of this guidance to ensure a
consistent national approach. Questions should be directed
to Jan B. Uine, Chief, State Programs Section, or Bobbie Lively-
Diebold at 382-2443.
Attachment
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. '. - 5
Af'7ARD OF COOPERATIVE AGREEMENTS TO POLITICAL ST^DivisTOMS
A. PURPOSE
The ouroose of this auidance is to establish the
oolicv and procedures for providina fundina to political
subdivisions to perform remedial activities throuqh Coop-
erative Agreements. The roles of EPA, the State, and the
oolitical subdivision are also discussed. This guidance
is limited to award of Cooperative Aareements for remedial
planning and remedial i"nolementation activities, and does
not aooly to ore-remedial activities. Exhibit 1 shows
those remedial activities that are eligible for political
subdivision lead. The issue of a oolitical subdivision-
lead for removal activities will be considered after the
develooment of quidance for State-lead removal actions.
Political subdivision-leads for overseeing an enforcement
response may be considered after experience is gained with
State-lead enforcement activities conducted throuah
Coooerative Agreements.
There are two mechanisms for orovidina funds to a
oolitical subdivision:
A Coooerative Agreement with the State with a
"oass throuah" to a politic?.'- subdivision, along
with a two-partv Interaover- -eatal Agreement
orior to costs being incurred
A Coooerative Aareement with a oolitical sub-
division with an enforceable three-oarty contract
that defines roles- and resoons ibi lit ies of all
. oarties, is amendable, and is the vehicle to oro-
vide a State's CERCLA section 104fc)(3)
assurances.
B. BACKGROUND
CERCLA section 104(d)(l) authorizes EPA to enter into-'
Coooerative Agreements with oolitical subdivisions of
States for resoonse actions taken under section 104.
Written guidance is intended to ensure a workable,
consistent accroach on a national basis for those
Reaions/States that find such an arranaement desirable.
Aporoval of a political subdivision-lead for remedial
activities is discretionary and reauires the full suooort
and aporoval of the aoorooriate State agencv Director and
the EPA Regional Administrator. CEPCLA as amended by the
Superfund Amendments and Reauthorization Act of 1986
(SARA) permits oolitical subdivisions that have the
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9375
EXHIBIT 1
SUPERFUND REMEDIAL ACTIVITIES
ELIGIBLE FOR POLITICAL SUBDIVISION-LEAD
T
FORWARD
PLANNING
REMEDIAL
PLANNING
I
RIFS
REMEDY
SELECTION
REMEDfAt;
DESIGN:;;.
REMEDIAL
IMPLEMENTATION
REMEDIAL
ACTION
OPERATION
AND
MAINTENANCE
CERCLA fund-financed remedial action may be undertaken only at sites
on the final NPL; other activities may be initiated at any time after a site
is proposed for the NPL.
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93.7
necessary capabilities and jurisdictional authority to
have an active roie in directly managing response
activities; however, SARA has assigned States a larger
role with.expanded responsibilities. This emphasizes the
need to clearly delineate, in a legally binding manner,
the responsibilities of EPA, .the State, and a political
subdivision during fund-financed remedial response,
thereby offering adequate recourse to all parties.
C. DEFINITION OF A POLITICAL SUBDIVISION
What legally constitutes a "political subdivision"
differs from State to State; therefore, it is left to each
State to determine what unit of government meets its
legislative definition of a political subdivision that may
qualify for assistance for Superfund response actions.
D. COOPERATIVE AGREEMENT WITH THE STATE WITH A PASS
THROUGH TO A POLITICAL SUBDIVISION
A State-lead Cooperative Agreement with a pass through
to a political subdivision is one method of funding a
political subdivision to perform a remedial activity. The
State must enter into a two-party Intergovernmental Agree-
ment with the political subdivision that describes the
roles, responsibilities, and timing :: actions by both
parties during the response activities. This agreement
must be in place before the State or political subdivision
incurs costs for field activities. Tr.a State retains the
ultimate responsibility for overseeing the activities of
the political subdivision and for ensuring that funds are
properly expended in accordance with statutory and regula-
tory requirements. The State must comply with 40 CFR
Parts 30 and 33; the political subdivision also must com-
ply with 40 CFR Part 33. EPA is not required to review
and approve the Intergovernmental Agreement. The Inter-
governmental Agreement must be:
Provided as an attachment to the State
Cooperative Agreement application;
Developed under a task in the workplan; or
Required by a special condition in the
Cooperative Agreement.
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937
E. AWARD OF A COOPERATIVE AGREEMENT TO A POLITICAL
SUBDIVISION
E.1 Application and Approval Process
The request for designation of a political subdivision-
lead Cooperative Agreement must be made by the State
agency authorized by the Governor as the point of contact
with EPA on Superfund. The draft Cooperative Agreement
application prepared by the political subdivision and
other required documents must be submitted to EPA by the
State. Applications submitted directly to EPA by a poli-
tical subdivision will not be acted upon by the Regional
Administrator. The following process must be used for the
application and approval of a political subdivision-lead
Cooperative Agreement:
1) The designated State agency makes a formal
request by letter to the EPA Regional Adminis-
trator that a political subdivision or other
State agency be designated as lead for remedial
activities at a specific site or sites. The
request must include as attachments:
A draft application for a Cooperative Agree-
ment supplied by the political subdivision;
The State's analysis or the political sub-
division's capabilities based on the appro-
priate criteria or documentation provided by
the political subdivision to support that it
possesses the required capabilities (see
Section E.3) ;
The State's acknowledgement that it under-
stands it is responsible for all CERCLA/SARA
section 104(c)(3) assurances; and
Acknowledgement by both the State and the
political subdivision that they will enter
into a three-party contract with EPA.
2) The Regional Administrator, based on information
in the State's request and the draft Cooperative
Agreement application, will evaluate the merit of
the State's request versus the merit of conduct-
ing a Federal- or State-lead response. The
Regional grants office and RPM will review the
draft Cooperative Agreement application to ensure
conformance with applicable Agency regulations
and program requirements. After this review is
completed, the RPM, with input from the Regional
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Counsel and the grants office, will develop the
draft Superfund State/Political Subdivision
Contract (SS/PSC) that defines the roles,
responsibilities, and concerns of EPA, the
political subdivision, and the State.
3) With the Region's written approval for a politi-
cal subdivision-lead, the political subdivision
will develop and submit to EPA through the State
the final Cooperative Agreement application. The
draft SS/PSC will be finalized by the RPM based
on input and agreement from the political subdi-
vision and the State. The political subdivision-
lead designation becomes effective after all
parties sign the three-party agreement and the
Award Official and the political subdivision sign
the Cooperative Agreement.
E.2 Superfund Comprehensive Accomplishments Plan (SCAP)
The project being proposed for political subdivision-
lead must be on the annual SCAP and the lead designation
process should not delay the SCAP target dates. Whenever
possible, the State should determine the appropriateness
of a political subdivision-lead during the SCAP develop-
ment process and submit its formal written request to EPA
no later than six months prior to the planned project
start date.
If the project has been placed or. the SCAP with State-
or Federal-lead designation, the SCAP must be amended to
reflect the change in lead to a political subdivision.
E. 3 Analysis of a. Political Subdivision's Capabilities
The analysis or documentation of a political subdivi-
sion's capabilities provided to the Regional Administrator
by the State or political subdivision in its application
must address:
Jurisdictional responsibility of the political
subdivision;
Whether or not the political subdivision may be
considered to be a potentially responsible party
(PRP);
whether or not the political subdivision has a
demonstrated history in addressing problems at
the site;
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9 3 7 5 . 1 - 5
Whether or not the political subdivision has
experience in performing work similar to that to
be funded in the Cooperative Agreement;
Whether the political subdivision will manage
O&M, regardless of who cleans up the site/-
Whether direct participation by the political
subdivision is likely to be more economical or
efficient than either a State- or Federal-lead;
Whether the political subdivision has existing
authority to conduct the remedial activities;
Whether the political subdivision has the exist-
ing authority to enter into a Cooperative Agree-
ment with the Federal Government and the finan-
cial and management capabilities to administer
Federal funds;
Whether the political subdivision has an estab-
lished liaison role with State and local agencies
involved in problems at the site;
Capability of the political subdivision to comply
with 40 CFR Parts 30 and 33 (including an ac-
counting system that accurately reflects costs
and retains records for cose recovery purposes;
see Appendix U of the manua. State Participation
in the Superfund Program).
A political subdivision that is a known PRP will not be
eligible for a Cooperative Agreement.
E.4 Preparation of a Political Subdivision's Cooperative
Agreement Application
The guidance on preparation of State Cooperative
Agreement applications in the manual State Participation
in the Superfund Program is applicable (with a few excep-
tions noted here) for use by the political subdivision in
developing its application. The special conditions in
Appendix F of the manual are applicable and should be
modified to reflect the political subdivision-lead.
Exhibit 2 gives a checklist for attachments to the Coop-
erative Agreement package. However, the State is respon-
sible for providing CERCLA section 104(c)(3) assurances at
the time of remedial action.
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EXHIBIT 2
CHECKLIST FOR COOPERATIVE AGREEMENT APPLICATION PACKAGE
1. APPLICATION FOR FEDERAL ASSISTANCE
Part I-General Summary Information
Part El-Project Approval Information
Part Hi-Budget Information
Part IV-Project Narrative Statement
Pan V-Assurances
Part I, completed and signed
Part II, completed
Part HI, completed
Detailed budget breakdown, by site
and activity
Site background summary
Statement of work
Part V, completed (distinct from
CERCLA section 104(c)(3) assurances)
2. ATTACHMENTS
Procurement System Certification
Intergovernmental Review Comments
Community Relations Plan (CRP) *
Quality Assurance Project Plan (QAPP)
Site Safety Plan *
ompleted EPA Form 5700-48
Comments included, as appropriate
In some cases, these plans will be developed by the political subdivision following Cooperative
Agreement award. When these plans are not attached to the Cooperative Agreement application, a
special condition should accompany the award, requiring these plans to be in place prior to the
initiation of field activities.
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9375
E.5 State Superfund/Political Subdivision Contract
All political subdivision-lead Cooperative Agreements
require a three-party SS/PSC to be in place prior to
award. The SS/PSC:
Defines roles and responsibilities of EPA, the
State, and the political subdivision
Serves as the vehicle for substantial and mean-
ingful involvement by the State in initiation,
development, and selection of the remedial action
to be undertaken
Can be amended at each phase of response
Can be amended to provide State CERCLA
section 104(c)(3) assurances
Is enforceable.
A topic outline for the SS/PSC is included as Exhibit 3.
The Cooperative Agreement is incorporated as part of the
three-party contract (SS/PSC).
The RPM is responsible for devei.opi.ng the SS/PSC just
as he/she is responsible for developing an SSC used during
a Federal-lead remedial response, "he RPM also is respon-
sible for managing the Cooperative Agreement and the
SS/PSC.
E.6 Relationship of the Superfund State/Political
Subdivision Contract to the Cooperative Agreement
The Cooperative Agreement is incorporated as part of
the SS/PSC by reference. The SS/PSC contains CERCLA/SARA
section 104(c)(3) assurances provided by the State, and
articles or provisions that relate to all three parties in
the contract (roles, responsibilities, timing, etc. See,
Exhibit 3 and Appendix H in the State Participation
manual). The Cooperative Agreement with the political
subdivision contains the provisions (special conditions)
specific to the project being funded (see Appendix F).
Exhibits 4 and 5 display the object class categories and
the appropriate level of detail for the itemized
Cooperative Agreement application budget.
E.7 Definition of Roles
The SS/PSC must identify the EPA RPM, the represen-
tative of the political subdivision and the SPO who will
interact with each other during the fund-financed action.
The SPO will:
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93'
EXHIBIT 3
CHECKLIST FOR ARTICLES IN SUPERFUNO
STATE POLITICAL SUBDIVISION CONTRACT
GENERAL RESPONSE ARTICLES FOR ALL ACTIVITY PHASES
Authority
Purpose of the Agreement
Parties to the Agreement
Designation of State, EPA, and Political Subdivision Project Officers
Responsibilities of EPA, State, and Political Subdivision
Coordination of Parties Participating in Response
Duration of the Agreement
Amendments to the Agreement
State Involvement per NCP
Reporting Requirements
Submission of Documents
Third Parties
State Involvement in Community Relations
Failure to Comply with Terms of the Agreement
RESPONSE AGREEMENT ARTICLES FOR RI/FS
Fund Balancing
Site Access and Permits
Acknowledgement of Provision of CERCLA Assurance by State
Finding of No Significant Threat*
RESPONSE AGREEMENT ARTICLES FOR REMEDIAL DESIGN, REMEDIAL ACTION,
AND O&M
CERCLA Section 104
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EXHIBIT 4
OBJECT CLASS CATEGORIES CONTENT REQUIRED FOR COMPLETING
COOPERATIVE AGREEMENT BUDGET SHEETS
CATEGORY
CONTENT - THE POLITICAL SUBDIVISION
MAY INCLUDE:
Personnel
Costs of wages paid to political subdivision employees
who are engaged in response activities. (Calculated
either as a percentage of time or LOE basis.)
Fringe Benefits
Travel
Equipment
Materials and Supplies
Contractual Services
Construction
Other ERnct Costs
Indirect Costs
Fringe benefits for political subdivision employees,
calculated as a fixed percentage of salary or by some
other agreed-upon method.
Costs incurred by political subdivision employees for
travel necessary for the remedial activities.
Purchase price of necessary equipment which
the political subdivision furnishes, less its residual value
after project completion. If equipment costs are based
on usage rates, the costs are calculated by a
standard depreciation usage method or in
accordance with OMB Circular A-102, Attach. N. *
Purchase price c; any necessary materials
and supplies the political subdivision furnishes.
Costs associated with reimbursing contractor
services, including direct and indirect contractor
costs and a reasonable profit for personal
services and nonconstruction contracts. (See
40 CFR Part 33 and OMB Circular A-87.)"*
Costs associated with reimbursing contractor
services, including direct and indirect con tractor
costs and a reasonable profit for construction
contracts. (See 40 CFR Pan 33 and OMB
Circular A-87.)**
Costs such as equipment rental, real property
purchase (see 40 CFR Part 30), and
miscellaneous costs.
The political subdivision may include indirect costs.
See Appendix T of the manual State Participation in the Superfund Program for instructions for
obtaining and disposing of equipment under Superfund Cooperative Agreements.
In accordance with the Prompt Payment Act (PL 97-177), Federal funds
may not be used for payment of interest penalties to contractors when
bills are paid late.
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92" 5.
EXHIBIT 5
OBJECT CLASS CATEGORIES
APPROPRIATE LEVEL OF DETAIL FOR ITEMIZED
COOPERATIVE AGREEMENT APPLICATION BUDGET
CATEGORY
INFORMATION
Personnel
Fringe Benefits
Travel
Equipment
Materials and Supplies
Contractual Services
Construction
Positions of staff
Number of hours
Salary of staff (annual or hourly rate)
Estimates of personnel costs, by position
Basis (percentage or other) upon which
fringe benefits are calculated
Estimates of fringe benefit costs, by position
Purpose and estimated number of trips
Starting point and destination
Transportation method
Per Diem while on travel
Number of persons traveling
Estimated cost of trips
Special Supen'und conditions for purchasing
equipment *
Number and : .~pe(s) of equipment to
be purchased
Price of each piece
Type(s) of materials and supplies to be
furnished
Total prices
Estimated number of personal services
or nonconstruction contracts
Nature of contract services
Estimated total cost for each contract **
Estimated number of construction
contracts to be let
Nature of contract services
Estimated total cost for each contract **
**
See Appendix T of the manual State Participation in the Superfund Program for instructions for
obtaining and disposing of equipment under Superfund Cooperative Agreements.
Estimates should allow for bid and activity contigencies.
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9375. 1-5
1) Interact with the political subdivision and EPA;
2) Participate in the decision-making process at key
junctures of the project; and
3) Provide input into the remedy selection (ROD)
process at the conclusion of the feasibility
study.
The provision must discuss limitations and prerogatives of
each party for making minor agreement changes.
E.8 Required Points of Coordination
The State is required, at a minimum, to perform the
following activities:
Review draft and final Cooperative Agreement
applications and SS/PSC;
Review all administrative reports, including the"
quarterly progress and financial status reports;
Review the draft and final RI/FS and comment on
the proposed alternatives;
Certify compliance with Sta:e standards;
Concur in the remedy and the SOD (the same as for
Federal-lead procedures);
With EPA, determine the need to pursue enforce-
ment actions against PRPs for conduct of the
response actions;
Review and approve all designs and specifications
during remedial design, prior to remedial action,
and design changes during remedial action;
Concur in any substantive changes in the scope of
work or project <5osts;
With EPA, jointly inspect the remedy at the con-
clusion of the remedial action;
Accept the remedy;
Concur in deletion of site from the National
Priorities List; and
Other points as applicable.
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93'
The responsibilities of the RPM do not differ from those
during a State-lead Cooperative Agreement with an excep-
tion being the signature of three parties on the SS/PSC.
The responsibilities of the representative of the poli-
tical subdivision are the same as the SPO during a
State-lead Cooperative Agreement. A detailed description
of duties and responsibilities of the RPM and SPO are
included in the Superfund State-Lead Remedial Project
Management Handbook, OERR, December 1986.
E.9 Cooperative Agreements with Political Subdivisions
During RD/RA/O&M
For RD/RA/O&M, the State must concur in the remedy
selected by EPA in the ROD. The SS/PSC must state that
the political subdivision will undertake the response
activities and that this agreement is acceptable to all
parties. The SS/PSC must be revised to include the next
phase of response and specifically to provide for a formal
acceptance of the remedy by the State before O&M com-
mences. The SS/PSC must be amended to include the
section 104(c)(3) assurances and must be signed by all
parties before remedial action funds are obligated in the
Cooperative Agreement with the political subdivision.
E.10 CERCLA Section 104(c)(3) Assur ?-.ces
The State is responsible for prov:.ding the following
CERCLA section 104(c)(3) assurances:
Cost share;
Future O&M of the remedial action at the site(s);
and
Availability of an acceptable off-site disposal
facility, if required.
Although the State is responsible for these assurances,
the political subdivision can share in the cost of the
action and manage the O&M at the site.
Although the State must recognize its responsibility
for CERCLA section 104(c)(3) assurances when it recommends
to EPA that a political subdivision undertake the lead,
these assurances are not required until the time of reme-
dial action. Prior to the initiation of the remedial
action stage of a project, the SS/PSC will be amended as
appropriate to convey the CERCLA section 104(c)(3) assur-
ances. The amended contract must be executed and signed
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by all parties before remedial action funds are obligated
in the Cooperative Agreement with the political sub-
division. The SS/PSC must address the assurances as
follows:
Cost Share
The State may provide its required match in
cash payments directly to EPA or to the
political subdivision who in turn provides
the required services as match in the
Cooperative Agreement; or
The political subdivision may match on the
State's behalf. The SS/PSC must indicate
that this is acceptable to all parties.
Off-Site Disposal Facility. If necessary, the
State must secure an off-site disposal facility
that the political subdivision can use in its
request for bids to perform the remedial action
and must provide this information as part of its
assurances in the contract.
O&M. The State must agree to assume responsi-
bility for O&M and may designate the political
subdivision as its manager. The State must agree
to conduct the O&M if the political subdivision
cannot fulfill all or part j: this obligation and
must identify in the contract how it would do so.
E.11 Enforceability
The political subdivision's performance on the project
can be enforced under the executed Cooperative Agreement.
The duties and responsibilities of EPA, the political
subdivision, and the State are enforceable under the terms
of the SS/PSC and the 40 CFR Part 30 provisions in the
Cooperative Agreement. Under CERCLA section 104(d)(2), if
EPA enters into a contract or Cooperative Agreement and
the recipient State or political subdivision fails to
comply with any requirements of the contract or agreement,
EPA may seek in the appropriate Federal district court to
enforce the contract or agreement or to recover any
Federal funds advanced or any costs incurred due to breach
of the contract or agreement by the State or political
subdivision.
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F. OTHER
There can only be one lead for any one phase of re-
sponse in. the site project. However, in a political
subdivision-lead, the State, through an existing MSCA, can
request management assistance to defray the cost of its
coordination. If there is no MSCA in place, the State may
apply for a single-site Cooperative Agreement for man-
agement assistance.
If a Cooperative Agreement (single-site or MSCA) is
awarded to the State for management assistance, the
special conditions are specific to the activity being per-
formed under the Cooperative Agreement. CERCLA
section 104(c)(3) assurances can be provided through the
Cooperative Agreement for management assistance.
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