United States
Environmental Protection
Agency
OHice of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9375.1-12
J° State Access to EPa Contractors During
Remedial Response
APPROVAL DATE: 4/88
EFFECTIVE DATE: 4/88
ORIGINATING OFFICE:
H^FINAL
D DRAFT
LEVEL OF DRAFT
O~A — Signed by AA or OAA
D B — Signed by Office Director
O C — Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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Offjc* of
Solid Wisti
DIRECTIVE NUMBER; 9375.1-12
.TITLE: state Access to EEa Contractors DurirK
. ' , Remedial Resp_. se
; *
APPRO /AL DAT?; • 4/88
EFFECTiVE DATE: 4/88
ORIGINATING OFriCE:
G/FINAL
D DRAFT
LEVEiLOFDRAFT
n*A —SJgn«^ ;AAorDAA
D B — Signed by Office Director
D C — flevieyv «. Corr.ment
REFERENCE {other documents):
. '-3SHfcBSS~.a8ai:£i^.: JBf^'. r
SI/I/E/?
DIRECTIVE
OSWER
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.Q.CPA Washington. DC 20460
*>trM OSWER Directive Initiation Req
2. Originator Information
Name of Contact Person
John Banks
Mail Code Office
WH-548E OERR/HSCC
1 . Directive Number
UeSt 9375.1-12
Telephone Code
) 382-2450
3. Title
State Access to EPA Contractors During Remedial Response
4. Summary of Directive (include brief statement of purpose)
This directive reaffirms a class deviation from 40 CFR 33.510 and
33.515 which allows States to retain EPA contractors, when a site
shifts from EPA- to State-lead, for follow-on remedial activities
without having to comply with any further public notice or evaluation
procedures (40 CFR 3?.Rin and T^.5i«^
5. Keywords Superfund> CERCLA-
SARA
tate 'Parti ci pation , Cooperative Agreement, Remedial
6a. Does This Directive Supersede Previous Directive(s)? \/
^ No Yes
b. Does It Supplement Previous Directive(s
7. Draft Level
A - Signed by AA/DAA "V
^ No Yes
B - Signed by Office Director C - For
What directive (number, title)
What directive (number, title)
Review & Comment D.- In Development
8. Document to be distributed to States by Headquarters?
Y
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
R. C. Hyde
OERR Directives Coordinator
10. Name and Title of Approving Official
•Peter Hubbard
OSWER Directives Officer
Date
y/r?
Date/
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
/E DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
APR 27
OFCIC6 OF
SOLID WAsre AND EMERGENCY RESPONSE
MEMORANDUM Directive * 9375.1 - 12
SUBJECT: State Access to EPA Contractors DuM ng^emedi al Response
FROM: Henry |_. Longest II, Director
Office of Emergency and Remedial
TO: Waste Management Division Directors
Regions I - X
Purpose: To reaffirm procedures for State retention of EPA
Contractors during the remedial response process.
Background
ReauthoM zati on of the Comprehensive Environmental Response-
Compensation, and Liability Act of 1980 (CERCLA), did not
change the legal and financial mechanisms available to the
Environmental Protection Agency (EPA) to respond to the
problem of uncontrolled releases of hazardous materials Into
the environment. EPA may undertake response actions at a
site, or transfer the necessary funds and management responsi-
bility to a State. Prior to reauthorization, this office
resolved and issued guidance on a number of issues relevant
to the remedial response process. However, with the evolution
of the program and passage of the Superfund Amendments and
Reauthorization Act of 1986 (SARA), a number of the same
questions have been raised again because there 1s uncertainty
as to whether SARA may have changed any of these decisions.
One of thtse questions 1s whether or not States may have
access ta EPA contractors when a site shifts from EPA- to
State-l«»4.
Reaff1r»at1on
Therefore, in response to this question, I am
reaffirming that the class deviation documented 1n the
attached memorandum issued on November 18, 1983 by the Grants
Administration Division to EPA Regional Administrators on
"Class Deviation from 40 CFR 33.510 and 33.515 for Certain
Activities Conducted Under the Authority of the Comprehensive
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Directive * 9375.1 - 12
- 2 -
Environmental Response, Compensation, and Liability Act of
1980" is still valid. This class deviation allows States
to have access to EPA contractors where EPA conducted the
remedial investigation (RI), feasibility study (FS), or
design activities and the State, under a Cooperative
Agreement, assumes responsibility for the subsequent phases
of remedial response. In such cases, the State may use, with
EPA's approval, EPA's contractor without further public
notice or evaluation (40 CFR 33.510 and 33.515) provided the
State follows the rest of the Part 33 requirements to award
the suhagreement. This class deviation is also published
in 48 Federal Register 56044 (Dec. 19, 1983), and further
i nformat i on on this sTfhject will he contained in forthcoming
guidance entitled Procurement Under Superfund Remedial
Cooperative Agreements OSWER Directive 9375.1-11,to be
i ssued shortly.
If you have any further questions, please contact
Jan B. Wine, Chief, State Involvement Section or John Banks
of her staff on FTS: 382-2443.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOY 181983
OFPICf Of
ADMINISTRATION
MEMORANDUM
TO: Regional Administrators
Regions I - X
Chief, GraTits Operations Branch (PM-216)
7-T*. c ^ A^-r?-^ ^XV ^
FROM: ' Barvey C. Pxppen, Jr., Director
Grants "Administration Division (PM-216)
SUBJECT: Class Deviation from 40 CFR 33.510 and 33.515 for
Certain Activities Conducted Under the Authority
of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980.
The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) provides financial assistance
for planning and implementation of remedial actions to clean
up uncontrolled hazardous waste sites posing significant
threats to public health and the environment.
Many recipients of Superfund cooperative agreements want
to retain the architectural and engineering (A/E) firm that
provided remedial investigation or feasibility study services
for engineering planning and design activities or engineering
services during the construction phase of remedial actions.
In cases where the initial subagreement did not include the
subsequent A/E services for the construction phase, or where
State policies do not permit procurement for activities where
funding is not guaranteed, EPA's procurement regulations (40
CFR Part 33) require that the recipient readvertise and re-
evaluate subagreement awards. These recipients could only use
the same A/E by following the public notice and evaluation
requirements in 40 CFR 33.510 and 33.515, or by obtaining an
individual deviation from the Director, Grants Administration
Division.
Background
The Superfund remedial action process is made up of four
separate but related activities. These activities are part
of a comprehensive approach required by CERCLA and the National
Oil and Hazardous Substance Contingency Plan (NCP, 40 CFR
Part 300) to mitigate actual or potential threats to public
P-24
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health and the environment. These activities are: (1) remedial
investigations (RI) to determine the type and extent of
contamination, (2) feasibility studies (FS) to evaluate
alternative actions and recommend a cost-effective remedy,
(3) design of the remedy; and (4) construction of the remedy.
Each of these activities requires the services of A/E firms
qualified in hazardous waste management.
Continuity from one activity to another is needed to
allow a timely and cost-effective response at Superfund sites.
This class deviation saves time by eliminating the requirement
for separate procurement actions between the various activities
and provides continuity in A/E services. In addition, the time
required to conduct subsequent activities would be reduced since
the A/E firm would be familiar with the site conditions and will
have had the opportunity to develop any specific expertise re-
quired to deal with the problems.
The Office of Emergency and Remedial Response issued guidance
on February 22, 1983, discussing the need for continuity in pro-
viding A/E services in a particular project. That guidance recom-
mends that States prepare site specific subagreements with firms
to provide A/E services for all four of the activities listed
above. EPA encourages this practice at new Superfund sites and
expects this procedure to minimize future problems. This practice,
however, is allowed by Part 33 only when the subagreement includes
all four activities. Therefore/ this class deviation is necessary
to allow Superfund recipients to use the same A/E firm in all four
of the Superfund activities when the original subagreement does not
include all four activities. This class deviation applies in the
following cases:
1. Where States conducted RI and/or FS activities
without EPA assistance and are now requesting funding
for the follow-on activities;
2. Where States conduct RI and/or FS activities with
EPA assistance under a cooperative agreement, but
did not include follow-on activities in the original
RI and/or FS subagreement; and
3. Where EPA conducted RI, FS or design activities and
the State, under a cooperative agreement, assumes
responsibility for the subsequent phases of remedial
using EPA's A/E contractors.
We estimate that 100 to 200 procurement actions over the
next three years may fall into the above categories. The
exact number will depend on whether recipients follow the
guidance referenced above and the number of sites where
P-25
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tne recipient rather than EPA conducts the remedial activities.
We anticipate that this class deviation will save three to
six months on the remedial response at many sites.
This class deviation does not unduly restrict open and
free competition. States will be required to ensure adequate
competition for the initial procurement of A/E firms. EPA
has previously approved this approach in the wastewater treatment
construction grants program under Title II of the Clean Water
Act, where its use has not adversely affected competition.
ACTION
I am approving a deviation to permit recipients of Superfund
remedial action cooperative agreements to use the A/E procured
to conduct any or all of the remedial investigation (RI), the
feasibility study (FS), or design to perform follow-on RI, FS,
design or engineering activities without going through the public
notice ($33.510) and evaluation procedures ($33.515) in 40 CFR
Part 33. However, the recipient must comply with all other
requirements in Part 33 when awarding the follow-on subayreements
and must have followed all of the requirements in Part 33
(including the public notice and evaluation required in 40
CFR $33.510 and $33.515) for the initial procurement of the
A/E, or EPA must have conducted the initial procurement.
The class deviation applies in the following cases:
1. Where the recipient conducted the RI and/or FS
activities without EPA assistance but is using EPA
funds for follow-on activities, the recipient may
use the A/E for subsequent work provided the recipient
attests that it:
(a) Complied with the following requirements when
it selected th« A/E:
(i) Section 33.230 'Competition," and
(ii) Section 33.250(a)(l) and (a)(2) and (a)(3),
and (b) "Documentation," and
(iii) Sections 33.505 through 33.525 "Competitive
negotiation," and
(b) Complied with the following:
' (i) No employee, officer, or agent of the recipient,
any member of their immediate families, or their
partners have financial or other interest in the
firm selected for award; and
P-26
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3.
4.
(ii) None of the recipient's officers, employees,
or agents solicited or accepted gratuities,
favors, or anything of monetary value from
contractors or other parties to subagreements.
(c) If the recipient uses the procedures in this
paragraph to retain an architect or engineer,
any EPA funded subagreement between the A/E
and the recipient must meet all of the other
provisions in Part 33.
Where the recipient conducted the RI, FS, or design
activities with EPA assistance but the original
subagreement did not include the follow-on activities
and the recipient wishes to use the same A/E for
follow-on Superfund remedial activities, the recipient
does not have to follow the public notice and evaluation
requirements in 33.510 and 33.515, for subsequent
activities provided the recipient follows the rest
of the procedures in 40 CFR Part 33.
Where EPA conducted the RI, FS, or design activities
under a direct procurement contract but the recipient
will assume the responsibility for subsequent phases
of remedial response under a cooperative agreement,
the recipient may use, with EPA's approval, EPA's
A/E contractor without further public notice or
evaluation provided the recipient follows the rest
of the Part 33 requirements to award the subagreement.
Where the recipient awards a subagreement after the
effective date of this class deviation, the initial
request for proposals or bid solicitations must
clearly state the possibility that the firm or
individual selected could be awarded a subagreement
for follow-on services.
CONCUR
CONCUR:
DATE:
Messner
'Assistant Administrator
for Administration and
Resources Management (PM-208)
p
Ati'H.
^. .
Lep M..ThoraasA
Assistant Administrator
for Solid Waste and
Emergency Response (WH-562A)
DATE:
P-27
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