5EPA
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
9375.1-4-F
TITLE'
11 °
STATE PARTICIPATION IN THE SUPERFUND PROGRAM,
- Volume 1: Appendix F - Sample Cooperative
Agreement Provisions
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
ft FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
9375.1-4 STATE PARTICIPATION IN THE
January 5, 1987
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Di
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United States Environmental Protection Agency
^ _ _ Washington. DC 20460
OEPA OSWER Directive Initiation Reauest
2. Originator Information
Name of Contact Person Mail Code Office
Deborah Swichkow WH-548-E OERR/HSCD/SRCB
3. Title
STATE PARTICIPATION IN THE SUPERFUND PROGRAM, Volume 1: Appendix
Agreement Application Provisions
1. Directive Number
9375.1-4-F
Telephone Number
(202) 382 2453
F: Sample 'Cooperative
4. Summary of Directive (Include brief statement of purpose)
Assists RPMs and SPOs in developing cooperative agreement .application provisions and
special conditions necessary to meet EPA, Superfund program and Superfund enforcement
assistance requirements.
5. Keywords
Superfund, CERCLA, Cooperative Agreements, Letter of Credit, RPM,
SPO
6a. Does this Directive Supersede Previous Directive^)? JV_AJ Yes I_J No What directive (number, title)
9375.1-4-F Same title, 7/22/86
b. Does It Supplement Previous Directive(s)? XjX"| Yes fj No What Directive {number, title)
9375.1-4 State Participation in the Superfund Program, Volume 1
7.. Draft Level
LJ A 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. Ciu"°*'lffl f ' *** n*fj"° Directives Coordinator
7F
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
PH 25 1985
OFFICE CF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Addendum to the Manual: State Participation in
the Superfund Program, Appendix F, Sample Cooperative
Agreement Application provisions
FROM: SamMorekas, Chief XV-
State and Regional ''Coordi nati on Branch
Hazardous Site Control Division
TO: ADDRESSEES
Since the last update to Appendix F was issued (July 22,
1986), several editorial changes made by the Regions were
added to the text. Please note that the discussion on
equipment purchase (page F-13) has been modified to reflect
the revised guidance on "Obtaining and Disposing of Equipment
Under a CERCLA Cooperative Agreement," Appendix T (issued
November 22, 1986).
The version of Appendix F that you currently have should
be discarded and be 'replaced with this attachment.
Attachment
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APPENDIX F
SAMPLE COOPERATIVE AGREEMENT APPLICATION PROVISIONS
OSWER DIRECTIVE
9375.1-4-t
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9375.1-4-f
APPENDIX F
SAMPLE COOPERATIVE AGREEMENT APPLICATION PROVISIONS
PURPOSE
This appendix has been provided to assist SPOs and
RPMs in developing Cooperative Agreement application pro-
visions and special conditions necessary to meet EPA,
Superfund program, and Superfund enforcement assistance
requirements.
BACKGROUND
Cooperative Agreements awarded under CERCLA are sub-
ject to a number of terms and conditions. These must be
defined in the Cooperative Agreement either as provisions,
if developed and incorporated into the application by the
State, or as special conditions, if added by EPA.
SPOs are responsible for ensuring that these require-
ments are addressed in the Cooperative Agreement applica-
tion. Requirements not adequately covered in the State's
application will be included as special conditions in
EPA's offer of award.
APPENDIX SUMMARY
This appendix contains examples of provisions that
have been used in Superfund Cooperative Agreements to
date. Some provisions have introductory remarks that pro-
vide background information to clarify EPA requirements;
sample provisions are indicated by indented text. In ad-
dition, several appendixes to this manual, such as Appen-
dix U, contain provisions that may not be found here.
Readers should refer to applicable appendixes to ensure
that they include all relevant provisions in the Coopera-
tive Agreement application or award document.
The provisions included in this appendix should be
tailored to meet project-specific requirements, as appro-
priate. Regional grants administration officials and Re-
gional Counsels should review modified provisions before a
Cooperative Agreement is awarded to ensure that the intent
of Agency and program requirements are met.
Introductory remarks to the sample Cooperative Agree-
ment provisions will mention Federal-lead agreements when
the requirements differ. Sample articles for inclusion in
Federal-lead response agreements can be found in Appendix
H of this document.
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9375.1-4-f
1. GENERAL PROVISIONS
EPA's General Regulation for Assistance Programs (40
CFR Part 30) applies to all Superfund Cooperative Agree-
ments. Examples of standard assistance agreement provi-
sions are provided in this section. This list is not
inclusive.
A. Authority
EPA awards this Cooperative Agreement in accor-
dance with the Federal Grant and Cooperative
Agreement Act of 1977. This Agreement is subject
to all applicable EPA assistance regulations.
B. Procurement Standards
This Agreement is subject to the procurement
standards of Title 40 of the Code of Federal Reg-
ulations Part 33 (copy enclosed).
C. Letter of Credit Procedures
States should include a Letter of Credit provision in
all Cooperative Agreement applications to ensure that they
use Superfund account numbers properly. Then, in expend-
ing funds from a site/activity account, the State must
draw down as appropriate. The account codes shown below
also are applicable when a State provides management as-
sistance during a Federal-lead response activity or when
the State is overseeing activities conducted by responsi-
ble parties. For example, when a State oversees responsi-
ble party activities or provides management assistance
during an RI/FS, the State should charge all activities to
the "L" account. Likewise, the State should charge re-
sponsible party oversight or management assistance during
RD to the "N" account, and so on for each activity during
site response.
An appropriate article is shown below.
In accepting this Cooperative Agreement, the
recipient agrees to the following conditions
for the letter of credit method of financing:
a) Cash drawdowns will occur only when needed
for disbursements.
b) Timely reporting of cash disbursements and
balances will be provided, as required by
the EPA Letter of Credit Users Manual.
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9375.1-4-f
c) The same standards of timing and reporting
will be imposed on secondary recipients, if
any.
d) When a drawdown under the letter of credit
occurs, the recipient will show on the
voucher (Form TFCS-5805) the Cooperative
Agreement number, the appropriate EPA ac-
count number, and the drawdown amount appli-
cable to each site/activity account (see
attached "Instructions for Using the
Superfund Account Number Under Cooperative
Agreements"). The eighth digit of the ac-
count number (see Item 39, page 1 of the
Cooperative Agreement) is the code to the
appropriate activity assignment:
J - Pre-Remedial Activities
L - Remedial Investigation/ Feasibility
Study
N - Remedial Design
R - Remedial Action
S - Operation and Maintenance.
e) When funds for a specific activity have been
exhausted but the work under the activity
has not been completed,; the recipient may
not draw down from another activity or site
account without written permission from the
EPA Award Official.
f) Funds remaining in an account after comple-
tion of an activity may be either returned
to EPA or adjusted to another activity or
site, at EPA's discretion.
g) When an activity is completed, the recipient
will submit a Financial Status Report (Stan-
dard Form 269) within 90 days to the EPA
Award Official.
h) Superfund recipients also must submit the
SF 269 within 90 days after the close of
each budget period. If the budget period is
longer than one year the report must be sub-
mitted annually, based on the anniversary
date of the award.
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9375.1-4-f
Failure on the part of the recipient'to comply
with the above conditions may cause the unobliga-
ted portions of the letter of credit to be re-
voked and the financing method changed to a reim-
bursable basis.
D. Prompt Payment Act Provisions
In accordance with section 2(d) of the Prompt
Payment Act (PL 97-177), Federal funds may not be
used by the recipient for the payment of interest
penalties to contractors when bills are paid
late, nor may interest penalties be used to sat-
isfy cost-sharing requirements. Obligations to
pay such interest penalties will not be obliga-
tions of the United States.
E. Lobbying
No portion of this award may be used for lobbying
or propaganda purposes as prohibited by 18 USC
section 1913 or by section 607(a) of Public Law
96-74.
F. MBE/WBE Utilization Reporting Requirements
EPA encourages States to award subagreements to minor-
ity business enterprises (MBEs) and women's business en-
terprises (WBEs) and requires all assistance recipients to
report on their utilization of such firms. Recipients
must submit an EPA Form 6005-1, U.S. EPA Recipient Report
on Minority and Women's Business Utilization, within 15
days after the end of each Federal fiscal quarter follow-
ing the recipient's or its contractors' first subagreement
award. Each Cooperative Agreement will contain the
following provision.
The recipient agrees to submit to the EPA Award
Official a completed EPA Form 6005-1 within fif-
teen (15) days after the end of each Federal fis-
cal quarter. Reporting must continue for each
Federal fiscal quarter thereafter until award of
the last subagreement for the activities or tasks
identified in the Cooperative Agreement.
Each Region must negotiate with each State a "fair
share" agreement for awarding MBE and WBE subagreements.
When a Superfund remedial Cooperative Agreement is awarded
to a State with which a fair share agreement has not been
negotiated, the application or the award documents must
include the following.
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9375.1-4-f
The recipient agrees that it will not award any
subagreements until the recipient has negotiated
a fair share objective with EPA. The recipient
agrees to submit to the EPA Award Official a com-
pleted EPA Form 6005-1 within fifteen (15) days
after the end of each Federal fiscal quarter.
Reporting must continue for each Federal fiscal
quarter thereafter until award of the last sub-
agreement for the activity or tasks identified in
the Cooperative Agreement.
The fair share objective for Superfund projects
operates in much the same way that it does on other forms
of Federal financial assistance. The only exception is
that the State must either agree to a specific dollar
amount as its fair share objective and incorporate that
amount into the Cooperative Agreement, or it must
negotiate a fair share objective with EPA prior to
procuring supplies or services. When the State has
negotiated a fair share objective with the Region, the
dollar objective must be stated in the MBE/WBE reporting
provision.
The recipient agrees to $[ ] as the fair share
dollar objective for proposed subagreement work
under this Cooperative Agreement. The recipient
agrees to submit to the Award Official a com-
pleted EPA Form 6005-1 within fifteen (15) days
after the end of each Federal fiscal quarter.
Reporting must continue for each Federal fiscal
quarter thereafter until award of the last sub-
agreement for the activity or tasks identified in
the Cooperative Agreement.
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9375.1-4-f'
2. SUPERFUND PROGRAM PROVISIONS
This section contains provisions that address Super-
fund program requirements. More than one example has been
reproduced for some topics. These examples may be used,
as applicable, to develop Cooperative Agreement pro-
visions or special conditions.
A. 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 mon-
ies to determine whether it is appropriate. This
Cooperative Agreement does not commit EPA to fu-
ture funding for response actions at the site.
B. National Contingency Plan (NCP)
A Cooperative Agreement will not be awarded unless
proposed activities are scoped according to the provisions
of the NCP. States must comply with the NCP in effect at
the time a Cooperative Agreement is awarded. It is incum-
bent on the RPM to initiate an amendment to the Coopera-
tive Agreement if revisions to the NCP occur during the
course of the project. The following example may be used
for all response activities; the second sentence may be
deleted for any Cooperative Agreement that does not in-
clude RI/FS activities.
All activities conducted under this Cooperative
Agreement shall be consistent with the National
Contingency Plan (NCP), 40 CFR Part 300. Reme-
dial alternatives developed as part of any reme-
dial investigation and feasibility study funded
under this Agreement will be identified, evalua-
ted, and ultimately categorized as source control
or management of migration measures based upon
the factors established in section 300.68(e) of
the NCP.
C. Project Reviews by RPMs and SPOs
EPA will conduct performance reviews and site inspec-
tions to ensure that the terms and conditions of the Co-
operative Agreement are being met. Normally, these reviews
are conducted by the RPM who may draw on the expertise of
F-6
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9375.1-4-f
specialists within the Region or in Headquarters. Two
examples of Cooperative Agreement provisions on this sub-
ject are given here.
a. The EPA Remedial Project Manager or his/her
designee will conduct periodic reviews and
site inspections to evaluate project activi-
ties to assure compliance with applicable
EPA requirements and regulations. The State
Project Officer will assure that all project
schedules and reporting requirements are met
or that any changes are agreed to by the EPA.
b. The EPA Remedial Project Manager or his/her
designee will conduct periodic reviews and
visits to evaluate project activities to
assure compliance with applicable EPA re-
quirements and regulations. The State Proj-
ect Officer agrees to ensure that schedules
and reporting requirements are met or that
any changes are agreed to by EPA. All
State-proposed modifications to schedules or
activities will be reported to the EPA Coop-
erative Agreement Project Officer for review
and concurrence. The EPA Cooperative Agree-
ment Project Officer agrees to notify the
State Project Officer of schedule changes
resulting from EPA enforcement activities.
D. 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 are applicable and for
obtaining necessary permits or approvals before work is
initiated. The RPM should provide assistance to ensure
that the project proceeds smoothly. The Appendix to the
Preamble of the NCP, "CERCLA Compliance with Other Envi-
ronmental Statutes," defines when environmental permits
are required. These requirements may be affected by
changes in CERCLA during reauthorization.
The State agrees to satisfy all Federal, State,
and local requirements, including permits and
approvals, necessary for implementing activities
addressed in this Cooperative Agreement. The
State will provide access to the site as well as
all rights-of-way and easements necessary to com-
plete the response actions. The State will pro-
vide access to EPA employees and contractors at
all reasonable times. The State may not approve
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9375.1-4-f
any compensation to property owners without EPA
approval.
E. Coordination of Parties Participating in Response
Several entities may participate simultaneously in a
response action; coordination of these diverse partici-
pants is a State responsibility. For this reason, the
State, in its Cooperative Agreement application, should
(1) list those agencies or entities that will participate
in response, (2) briefly describe the role of each, and
(3) agree to oversee their participation in close coordin-
ation with EPA.
The following agencies and/or entities will par-
ticipate in the [activity name] at [name of site]
conducted pursuant to this Cooperative Agreement
[list agencies]. The State agrees to oversee the
participation of each in close coordination with
the EPA Cooperative Agreement Project Officer.
The State further agrees to inform the EPA Co-
operative Agreement Project Officer in the event
that problems arise and/or the role of any one
agency significantly increases or decreases from
that described in the State's Cooperative Agree-
ment application dated [ ].
F. Community Relations
Each Cooperative Agreement application should include
a provision stating that the State will comply with EPA
policy and guidance in conducting all community relations
activities. The following provision is appropriate where
the community relations plan (CRP) is attached to the
application.
The State and EPA agree that community relations
activities at the site will be conducted in ac-
cordance with the community relations plan
contained in the State's application dated
[ ]. In implementing its plan, the State
agrees to comply with all relevant EPA policy and
guidance on community relations programs and
procedures.
In some cases the CRP will be developed by a State
following the Cooperative Agreement award. When the CRP
is not included with the State's application, the follow-
ing provision should be used.
The State and EPA agree that a site-specific com-
munity relations plan will be developed and sub-
mitted by the State to EPA for approval. This
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9375.1-4-f
plan must be approved by EPA prior to the initia-
tion of any field activities at the site. In de-
veloping its plan, the State agrees to comply
with all relevant EPA policy and guidance on
community relations programs and procedures.
When the State will conduct community relations activ-
ities at several sites under a multi-site Cooperative
Agreement (MSCA), it may submit with its application one
generic CRP. After the MSCA is awarded and before field
work can begin the State must prepare a site-specific
CRP. To demonstrate that it understands and accepts this
obligation, the State should include an appropriate provi-
sion in its MSCA application.
The State will conduct community relations activ-
ities at [number] of sites pursuant to this
Agreement. The State has prepared a generic com-
munity relations plan to describe the types of
activities it will undertake at these sites. The
State agrees to develop site-specific community
relations plans and to submit these to EPA for
review. These documents must be approved by EPA
prior to the initiation of any field activities
at the sites. In developing and implementing its
community relations plan, the State agrees to
comply with all relevant EPA policy and guidance
on community relations programs and procedures.
G. Site Safety Plan
In accordance with CERCLA sections 104(f) and
lll(c)(6), before field work begins at a site, the State
is required to have in place a site safety plan providing
for the protection of on-site personnel and area resi-
dents. (A model site safety plan can be found in Appendix
M.) Unless the plan is completed and submitted with the
final assistance application, a provision must be included
in the application to acknowledge the State's awareness of
this requirement.
A final safety plan shall be prepared for field
activities performed at each site pursuant to
this Cooperative Agreement. For National Priori-
ties List (NPL) sites, these plans shall be sub-
mitted to the EPA Cooperative Agreement Project
Officer for review prior to implementation. The
plan shall be consistent with the requirements of
the National Contingency Plan and applicable
Federal and State safety standards and guidance.
Each subagreement awarded under this Agreement
must contain a condition that requires con-
tractors and subcontractors to comply with the
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9375.1-4-f
approved safety plan and all relevant Federal
health and safety standards. No field work at a
site shall occur until a safety plan for that
site has been reviewed by EPA, for consistency
with EPA requirements, and the State and is
finalized.
If the State has developed an MSCA application, the
State may prepare and submit with its application one
generic site safety plan. This plan must discuss the
general mechanisms that the State has in place to handle
health and safety problems related to the cleanup of haz-
ardous substances. Additionally, the State must prepare
and submit for EPA review site-specific safety plans for
each project before beginning field work. The State
should demonstrate in its MSCA application its under-
standing and acceptance of this responsibility.
The State will undertake health and safety acti-
vities at [number] sites under this Agreement.
The State has prepared and has submitted with its
application, dated [ ], one generic site
safety plan to cover these activities. The State
will prepare and submit to the EPA Cooperative
Agreement Project Officer for review site safety
plans for activities to be performed at each site
pursuant to this Agreement. Each plan shall be
consistent with the requirements of the National
Contingency Plan and applicable Federal and State
safety standards and guidance. Each subagreement
awarded under this Agreement must contain a con-
dition that requires contractors and subcontrac-
tors to comply with the approved safety plan and
all relevant Federal health and safety stan-
dards. No field work at a site shall occur until
a safety plan for that site has been reviewed by
EPA, for consistency with EPA requirements, and
the State and is finalized.
H. Access to Site 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 (PRPs). State laws,
however, 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 infor-
mation.
F-10
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9375.1-4-f
a. The State will allow public access to its
records in accordance with applicable State
Vaw [citation]. EPA will allow public ac-
cess to its records in accordance with the
procedures established under the Freedom of
Information Act (PL 93-502), regulations
promulgated pursuant thereto, and Agency
guidance. Both parties agree to protect
each other's claims for confidentiality,
particularly with regard to documents re-
lated to pending or ongoing enforcement
actions/ generated by either the State or
EPA.
b. At EPA's request and to the extent allowed
by State law, the State shall make available
to EPA any information in its possession
, concerning the site. At the State's request
. r. and to the extent allowed by Federal law,
EPA shall make available to the State any
information in its possession concerning the
site. If any information is provided to EPA
by the State under a claim of confiden-
tiality, it will be treated in accordance
with 40 CFR Part 2 if the State has given
EPA notice of the claim of confidentiality.
EPA will not disclose information submitted
under a claim of confidentiality 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.
I. Reporting Requirements
Unlike a Federal-lead remedial response agreement
where EPA reports site progress to the State (see Appendix
H), under a Cooperative Agreement the State is required to
make quarterly progress reports to EPA. The RPM is re-
sponsible for reviewing these reports to determine whether
adjustments or amendments to the Cooperative Agreement are
necessary.
The State agrees to submit progress reports to
the EPA Cooperative Agreement Project Officer
within thirty (30) days of the end of each Fed-
eral fiscal quarter. These reports shall include
a summary of: expenditures by object class for
each .activity,, both to date and since the pre-
vious report; estimates (percentages) of work
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9375.1-4-f
elements completed for each activity, including a
description of the basis for the estimates; esti-
mated variances (cost and time) expected at proj-
ect completion; and any significant findings,
problems encountered, schedule com pliance (in-
cluding justification for non-compliance) and any
additional funding needs.
See Section 3 of this'appendix for a reporting provision
specific to pre-remedial activities, and Section 5 for
requirements specific to RD/RA activities.
, .(
J. Submission of Technical and Procurement Documents
The State should submit to the Cooperative Agreement
Project Officer for review all documents prepared under
the Cooperative Agreement. A provision addressing this
subject varies, depending upon whether the State's pro-
curement system meets the intent of EPA's Requirements for
Procurement Under Assistance Agreements (40 CFR Part 33).
The following provision may be use.d when the State has
certified its system.
The State agrees to submit all plans, reports,
specifications, and/or recommendations to the EPA
Cooperative Agreement Project Officer for review
and concurrence, prior to issuance or implemen-
tation, to ensure technical adequacy and consis-
tency with the scope of work of this Agreement.
Final subagreement documents or plans and sub-
agreement changes shall be submitted to the EPA
Cooperative Agreement Project Officer prior to
issuance for review to ensure compliance with the
terms of this Agreement.
If the State has not certified that its procurement
system meets the requirements of 40 CFR Part 33, the State
must follow the requirements in EPA's regulation and give
the Agency the opportunity to review all proposed sub-
agreements and associated procurement actions. In this
case, the following provision is appropriate.
The State agrees to submit all draft plans, re-
ports, specifications, contract documents, and
subsequent changes to the EPA Cooperative Agree-
ment Project Officer for review and concurrence,
prior to issuance or implementation, to ensure
technical adequacy, consistency with the scope of
work of this Agreement, and compliance with 40
CFR Part 33. Final subagreement documents or
plans and subagreement changes shall be submitted
to the EPA Cooperative Agreement Project Officer
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9375.1-4-f
for review before subsequent award-or amendment,,
as provided in 40 CFR 33.110(b)(2).
K. CERCLA-Funded Equipment Purchase .,.;.. ' :: . f
Equipment may be purchased under a Super fund-
Cooperative Agreement under the following .circumstances: ;
For a single-site Cooperative-Agreement:, the
purchase is the most cost-effective way of ,
.obtaining the* equipment and use on the project
will account for most of the useful life of the
equipment . ... . . >
For an MSCA, the purchase is the most
cost-effective way of obtaining the equipment,
use of the equipment can be accounted for on a
site-specific basis, and use on projects
conducted under the MSCA will account for most of
the useful life of the equipment.
See Appendix T of this manual for specific instructions on
the purchase of equipment for use under a Superfund
Cooperative Agreement. '. , .
EPA authorizes purchase of the equipment identi-
fied in the State's application dated [__ ].
Equipment approved for purchase unde.r this Agree-
ment is authorized for use only on the projects
specified herein. For MSCAs, the State,agrees to
allocate equipment costs among the projects in
proportion to the equipment's use on each. If
the State intends to use the equipment for
projects outside the scope of this Agreement, the
State agrees to submit a formula for allocating,
costs for equipment use, to obtain prior approval
from the EPA Award Official, and to carefully
document all use. When the equipment is no .
longer being used for the CERCLA activities , ,
listed above, the State agrees to submit
documentation on any non-CERCLA equipment usage
and to reimburse EPA for any non-CERCLA work.
Furthermore, the State understands that at the
end of the work authorized in this. Agreement, EPA
will instruct the State on the disposition .of the
equipment. Disposition may entail returning the
equipment to EPA or reimbursing EPA for EPA's
share of the equipment's residual value.:
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9375.1-4-f
L. CERCLA. HeaLthr-Re 1 ated-, Acti.v-it.iesi -' ' * ' '
In accordance with section 104(i) of CERCLA, the
Agency for Toxic Substances and Disease Regis-try of the
Department: of Health and Human Services (HHS) is respon-
sible for implementing the. health-related authorities? of
CERCLA. Executive Order 12316 section 2;(a) delegated to
HHS all authorities under section 104(b) of CERCLA relat-
ing to illness, disease,, or complaints thereof that may be
attributable to exposure to. a hazardous; substance, pollu-
tant or contaminant (see Executive Order 12316 section
2(a) and section 300.23 pf the NCP). Therefore, no human
subject testing or health effects analyses may be funded
under Superfund response agreements, and no Cooperative
Agreement statement: of work (SOW) should, include such
health-related activities. States should, coordinate any
such activities; direct l.y with HHS.
The State agrees: that no humane subject testing or
health, effects analyses may be funded under this
Agreement. Any CERCLA health-related activities
must be: coordinated with, the United States De-
partment of Health: and Human Services, pursuant
to sections 104(b) and 104 (i) of CERCLA.
M. Exclusion, of Third. Party Benefits
This Agreement is intended, to benefit only the
State and EPA^ It extends no benefit or rights
to any party not a signatory to this Agreement.
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 provisions of 28
U.S.C. sections. 134.6(b), 2671-2680. To the ex-
tent permitted by State law, the State does not
assume li.abili-ty to any third parties with re-
spect to losses due., to bodily injury or property
damage.
N. Responsible; Party Activities
All applications require the inclusion of an ac-
knowledgement that responsible, parties may come for-
ward to perform some of the activities, defined in the
SOW. "
If, during the period; of performance: for this
Agreement, responsible parties agree to perform,
or to pay for the performance of, any work
elements included in the statement of work (SOW)
for this; Agreement, EPA and the State agree to
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9375.1-4-f
negotiate .jointly any necessary modifications to
this Agreement. If appropriate, this Agreement ;
may be amended to adjust the State's letter of
credit'and the project SOW accordingly. .
See Section 6 of this appendix for a provision on this
subject developed specifically for Agreements covering
State-lead enforcement RI/FS projects. Appendix I con-
tains provisions for State oversight of responsible party
response actions. ,
Q. Contractor Conflict of Interest
Recipients of trust fund monies should not enter into
subagreements with PRPs to perform work at a site where a
conflict of interest may arise. States, therefore, are
required to obtain information from each bidder or offerer
on any subagreement to evaluate whether or not a conflict
or potential conflict exists.
EPA has determined that participation in a re-
sponse action at a site by a contractor that is a
potentially responsible party (PRP) or .works for
a PRP at the site could create an organizational
conflict of interest (i.e., the contractor would
be placed in .a position where its interests would
conflict with its ability to perform the work
properly or would otherwise adversely affect
State or Federal enforcement action). Therefore,
the State shall require each bidder or offerer on
any subagreement funded under this Cooperative
Agreement to provide, with its bid or proposal:
(1) information on its status and the status of
parent companies, subsidiaries, affiliates, sub-
contractors, and current clients as PRPs at the
site; (2) certification that, to the best of its
knowledge and belief, it has disclosed such in-
formation or no such information exists; and (3)
a statement that it immediately shall disclos.e
any such information discovered after submission
of its bid or proposal or after award. The State
shall evaluate, such information and shall exclude
any bidder or offerer if the State determines the
bidder's or offerer's conflict of interest is,
significant and cannot be avoided or otherwise
resolved.
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P. Subagreement Conflict of Interest and Technical Sup-
port for Enforcement Activities
The State also must guard against possible conflict of
interest situations after subagreements are awarded and
must ensure that contractors' documentation and expertise
are available to support enforcement actions. Compensa-
tion of contractor costs for providing documentation or
expert witnesses will be arranged by the Headquarters Of-
fice of Waste Programs Enforcement. The following provi-
sion is a proposed amendment to 40 CFR Part 33; until this
proposed change is effective, this provision should be
included in all Cooperative Agreements.
The State shall include the following, or equiva-
lent, clauses in each subagreement for services
or construction awarded under this Cooperative
Agreement:
1. The contractor shall not provide data gener-
ated or otherwise obtained in the perform-
ance of its responsibilities under this con-
tract to any party other than State and
Federal agencies and thei'r authorized agents.
2. The contractor shall not accept employment
from any party other than State or Federal
agencies for work directly related to the
site(s) covered under this contract for a
period of three years from termination of
the contract, or until any litigation re-
lated to the site(s) is completed, whichever
is longer, unless it has received a written
release from this restriction from the con-
tracting State agency, including an EPA
concurrence.
3. The contractor, upon request, shall provide
witnesses and documentation of activities
performed and costs incurred under this con-
tract to State and Federal agencies during
the period of performance and for three
years from termination of the contract, or
until any litigation related to the site(s)
is completed, whichever is longer. The con-
tractor shall be entitled to reasonable com-
pensation for any such activities performed.
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Q. Emergency Response Actions During a Remedial Project
Any emergency response, activities conducted pur- suant
to the National Contingency Plan, 40 GFR section
300.65, shall not be restricted by the terms of this
Agreement. EPA and the State may-jointly suspend or
modify the remedial activities in the SOW of this
Agreement during and subse- quent to necessary
emergency response actions.
R. Negation of Agency Relationship
Each Cooperative Agreement application should include
a provision negating the principle that the State is act-
ing as EPA's agent in the response activity. This asser-
tion decreases the potential for exposure to tort liabil-
ity and simplifies cost recovery efforts.
Nothing contained in this Agreement 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 proto-
cols prescribed in this Agreement to be followed
by the State during the performance of its obli-
gations under this Agreement are to assure the
quality of the final product of the actions con-
templated by this Agreement, and do not consti-
tute a right to control the actions of the
State. EPA (including its employees and contrac-
tors) is not authorized to represent or act on
behalf of the State int any matter relating to
this Agreement, .and the State (including its
employees and contractors) is not authorized to
represent or act on behalf of EPA in any matter
related to this Agreement. Neither EPA nor the
State shall be liable for the contracts, acts,
errors, or omissions of the agents, employees, or
contractors of the other party entered into, com-
mitted, or performed with respect to or in the
performance of, this Agreement.
S. Management Assistance Activities
EPA may provide States with funding during Federal-
lead projects to defray the cost of their participation
during a Federal-lead project at a site. This is called
management assistance. Such an arrangement does not per-
mit a State to direct any work performed by EPA, the U.S.
Army Corps of Engineers (COE), any other Federal agency,
or any of these parties' contractors. If an SSC or other
Federal-lead agreement is in effect, this fact .also should
be incorporated by reference into the Cooperative Agree-
F-17 .
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9375.1-4-f
ment. In drawing down funds for management assistance,
the State should be sure to use the appropriate account.
For example, if the State is providing management assis-
tance during an RI/FS, the State should charge these ac-
tivities to the "L" account; management assistance during
the RD should be charged to the "N" account, and so on.
See Section 1 of this appendix for a list of Superfund
account codes.
An appropriate provision is given below.
The State has agreed to conduct the management
assistance activities covered by this Agreement
during the Federal-lead response action initiated
at the [name] site. The State understands that
EPA funding for State management assistance does
not change the contractual relationship between
EPA (or the U.S. Army Corps of Engineers (COE))
and the response contractor. The State may not
direct the work of EPA (or the COE) and/or its
response contractors and subcontractors.
T. Enforcement and Cost Recovery
Both EPA and affected States can institute enforcement
actions against, and/or negotiations with, PRPs. When
this occurs, a settlement or legal action by either party
could potentially impede or even negate the claims of the
other for recovery of funds expended at the site. Obli-
gations, rights, and procedures for litigation must be de-
fined as early as possible in the working relationship
between EPA and the State to avoid this eventuality.
Therefore, provisions concerning cost recovery and other
enforcement considerations must be included in each Co-
operative Agreement application. Specific provisions that
address different enforcement conditions are presented
below; since the State cannot recover any CERCLA funds
that EPA has provided, these provisions should be included
in each application. In addition, Appendix I contains
provisions that should be used for Cooperative Agreement
applications covering State oversight of PRP activities.
Notice of Intent to Settle or Initiate Proceedings
EPA and the State agree that, with respect to the
claims that each may be entitled to assert
against any third person (herein called the "re-
sponsible party," whether one or more) for reim-
bursement of any services, materials, monies, or
other thing of value expended by EPA or the State
for response activity at the site(s) described
herein, neither EPA nor the State will enter into
F-18
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9375.1-4-f
a settlement with, or initiate a ,judicia;l or ad-
ministrative proceeding against, a responsible party
for the recovery of.-.such sums except after having
given notice in writing to, the other, .party, to this
Agreement not less than thirty (30). days, in advance of
the date of the.proposed, settlement .or commencement of
the proposed judicial or ad- ministrative .
proceedings. Neither party to this Agreement shall
attempt to negotiate for nor col- le'ct reimbursement.
of any response costs on be- half of the other party,
and authority to do so is hereby expressly negated and
denied.
Cooperation and Coordination in Cost.-Recovery .Ef.forts
EPA and the State agree that they, will cooperate and .
coordinate in efforts to recover their Ye- spective
costs of response actions taken at the site described
herein, including the negotiation of settlement and
the filing and management of any judicial actions
against potential third par- ties. This shall include
coordination in the use of evidence and witnesses
available to each in the preparation and presentation
of any cost re- covery action, excepting any documents
or infor- mation which may be confidential under the
provi- sions of any applicable State or Federal law or
regulation.
Judicial Action in U.S. District Court
The following provision, or its equivalent, should be
included in all Cooperative Agreement applications not
covering fund-financed State-lead enforcement RI/FS proj-
ects (see Section 6 of this appendix for a provision cov-
ering State-lead enforcement RI/FS projects):
EPA and the State agree that judicial action
taken by either party against a potentially re-
sponsible party pursuant to CERCLA for recovery
of any sums expended in response actions at the
site described herein shall be filed in the
United States District Court for the judicial
district in which the site described in this
Agreement is located, or in such other judicial
district of the United States District Court as
may be authorized by section 113 of CERCLA, and
agreed to in writing by the parties of this
Agreement.
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9375.1-4-f
Litigation Under CERCLA Sections 106 and 107
The award of this Agreement does not constitute a
waiver of EPA's right to bring an action against
any person or persons for liability under sec-
tions 106 or 107 of the Comprehensive Environmen-
tal Response, Compensation, and Liability Act
(CERCLA), or any other statutory provisipn or
common law.
Sharing Recovered Funds with EPA
Any recovery achieved by the State pursuant to settle-
ment, judgment, or consent decree or any action
against any of the responsible parties will be shared
with EPA in proportion to EPA's contribution to the
site response activities under CERCLA.
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9375.1-4-f
3. SUPERFUND PROGRAM PROVISIONS FOR CERCLA PRE-REMEDIAL
COOPERATIVE AGREEMENT APPLICATIONS
This section contains provisions that address require-
ments' that the Superfund program imposes on all Coopera-
tive Agreements covering State-lead PA, SI, and SIf
projects.
A. Sample Splits and Analyses
Each Cooperative Agreement application covering Sis
should contain the following provision.
In accordance with CERCLA section 104(e), State
employees, officers, or representatives will pro-
vide the owner, operator, or individual in charge
of a site the opportunity to receive promptly (1)
a split of each sample collected on that particu-
lar site, (2) a receipt describing the samples
collected, and (3) a copy of analytical results.
B. Site Inspection Follow-up Work Plan
States, with EPA approval, may conduct an SIf at the
completion of an SI to obtain additional data to
strengthen or substantiate a site's Hazard Ranking System
score. A provision to this effect should be included in
each Cooperative Agreement application covering Sis.
The State will submit a copy of the site study/
sampling plan for an SIf to EPA for review and
approval prior to commencing the activity at the
site.
C. Addition of New Sites
Each Cooperative Agreement application proposing PAs
and Sis must contain a list of the site names at which
pre-remedial activities will be undertaken. Activities
performed under the Cooperative Agreement must be imple-
mented according to the list unless the State notifies EPA
of its intention to revise the list and receives written
EPA approval to do so.
The State will notify EPA, in writing, of any
proposed changes or additions of sites to the
list of sites presented in the Cooperative
Agreement application for the performance of PAs
and Sis. Written approval of such changes or
additions must be received by the State before
any work can commence at the site and this Agree-
ment may be adjusted accordingly.
F-21
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9375.1-4-f-
D. Joint PA/SI Effort
The State must implement PA/SI work according to a
schedule agreed to by both EPA and the State. Should the
State be unable to meet this schedule, EPA, after consult-
ing with the State agency responsible for the PA/SI pro-
gram, may undertake pre-remedial activities at sites des-
ignated as State-lead so that PAs and Sis may be completed
expeditiously.
The State and EPA agree to work together to en-
sure that sites requiring PAs and Sis are ad-
dressed as expeditiously as possible. If a State
falls behind in its accomplishments as estab-
lished under this Cooperative Agreement, EPA, in
consultation with the State, may initiate PAs and
Sis at State-lead sites to assist the State in
meeting its PA/SI goals, and this Agreement may
be adjusted accordingly.
E. Quarterly Reports
Each Cooperative Agreement application for PA, SI, and
SIf activities should include a provision on quarterly
reports. The report should contain elements similar to
those discussed in Section 2 of this appendix, as well as
components specific to PA, SI, and SIf projects.
The State will submit progress reports to the EPA
Cooperative Agreement Project Officer within
thirty (30) days of the end of each Federal fis-
cal quarter. Such quarterly reports shall in-
clude: summary of object class expenditures by
activity; work estimates (percentages) of work
completed for each activity in the SOW; personnel
hours spent at each site per PA, SI, and SIf; and
identification of new sites or c'hanges in the
list of sites designated for PAs or Sis in the
original Cooperative Agreement application. The
quarterly report also shall include an explana-
tion of variances from the SOW in estimated
costs, personnel hours, site disposition, and/or
production.
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9375.1-4-f
4. SUPERFUND PROGRAM PROVISIONS FOR CERCLA REMEDIAL IN-
VESTIGATION/FEASIBILITY STUDY COOPERATIVE AGREEMENT
APPLICATIONS , .
This section.contains provisions.that address require-
ments that the Superfund program imposes on, all Coopera-
tive Agreements for RI/FS projects. .
A. Cost Sharing at Publicly Operated Sites
Under the provisions of CERCLA section 104(c)(3), the
State is obligated at the time of the a, removal action to
pay 50 percent of all response costs if the site was
publicly operated at the time of disposal. All
Cooperative Agreement applications for remedial planning
at known publicly operated sites or sites about which
there is a question of operating responsibility should
state that the State will retroactively provide its 50
percent share of all response costs at the time of RA if
the State or a political subdivision operated the site at
the time of the disposal.
If EPA determines that the site was operated by
the State or one (or more) of its political
subdivisions at the time of disposal, the State
will be responsible for 50 percent of all
response costs at the site. In that event, this
Cooperative Agreement or any other Cooperative
Agreement or Contract to undertake remedial ac-
tion at the site shall provide for payment by the
State of 50 percent of the costs of any removal
actions, the remedial investigation, the
feasibility study, the remedial design, and any
remedial implementation related to the site.
B. Advance Match
If a State elects-to use advance match, a Cooperative
Agreement must be in effect before any costs are in-
curred. This Agreement must clearly identify that the
State intends to perform activities at a site using its
own funds and that the costs incurred will be applied as
credit toward the State's eventual cost share for remedial
implementation. The following provision may be used for a
State-lead agreement; an SSC must be used to document the
transfer of cash as advance match during a Federal-lead
project (see Appendix H).
Funds for remedial planning activities at [name
of site], provided by the State in this Coopera-
tive Agreement, are not required for matching
purposes. They may be applied toward the State's
required cost share for any subsequent fund-
financed projects at [name of site]. Expenditure
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9375.1-4-f
of these funds, however, does not ensure that
fund-financed remedial actions will be implemen-
ted at this site. The State may request an
amendment to this Agreement providing for reim-
bursement of these expenditures should they not
be required to meet the State's ultimate cost-
sharing obligation at the site. Reimbursement by
EPA is subject to the availability of appropri-
ated funds and verification of the allowability
of the State's expenditures.
C. Community Relations
The State agrees that public input will be sought
at the end of the feasibility study and prior to
final selection of the remedy in accordance with
the approved community relations plan for this
site. The State further agrees to comply with
all relevant EPA policy and guidance on community
relations when implementing its community rela-
tions plan throughout the response.
D. Finding of No Significant Threat
As the result of an RI, site conditions may be found
to pose no significant threat to public health, welfare,
or the environment. When this occurs, EPA and the State,
through the NPL deletion process, may determine that a
remedial action at the site is not necessary. A compre-
hensive FS also may not be needed in such a case.
If, after the completion of the remedial investi-
gation as described in the SOW for this Agree-
ment, it is determined that conditions at the
site described herein pose no significant threat
to public health, welfare, or the environment,
EPA and the State agree to negotiate any neces-
sary modifications to this Agreement. At that
time, this Agreement shall be amended to revise
the project SOW and, if necessary, the State's
letter of credit will be adjusted accordingly.
E. RI/FS Statements of Work
The documents Guidance on Remedial Investigations
Under CERCLA and Guidance on Feasibility Studies Under
CERCLA, OERR, June 1985, are intended to provide a de-
tailed structure for identifying, evaluating, and
selecting remedial action alternatives under CERCLA and
the NCP. The State must comply with the intent of these
two guidance manuals.
F-24
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9375.1-4-f
In conducting the RI/FS funded by this Agreement,
the State agrees to comply with the manuals
Guidance on Remedial Investigations Under CERCLA
and Guidance on Feasibility Studies Under CERCLA,
OERR, June 1985.
When the State intends to conduct several RI/FS proj-
ects under an MSCA, the State may submit with its applica-
tion one generic SOW to cover all RI/FS sites. Prior to
beginning field work, the State must submit for EPA review
and concurrence site-specific SOWs.
The State, under this Agreement, will conduct
RI/FS projects at [number] sites. The State has
submitted for review and approval a generic
statement of work (SOW) to describe the types of
activities that will be conducted during the
RI/FS projects contemplated under this Agree-
ment. Prior to beginning field work, the State
will prepare site-specific work plans and will
submit these plans to the appropriate EPA Project
Manager for review. No field activities at any
site shall occur until EPA and the State have
concurred on the site-specific work plan and the
plan is finalized.
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9375.1-4-f
5. SUPERFUND. PROGRAM PROVISIONS FOR CERCLA REMEDIAL DE-
SIGN/REMEDIAL ACTION COOPERATIVE AGREEMENT APPLICATIONS
This section contains provisions that address require-
ments that the Superfund program imposes on all State-lead
RD/RA projects. The RPM and SPO should refer to the man-
ual Superfund Remedial Design and Remedial Action Guid-
ance, OERR, June 1986, and Volume II of this manual when
preparing Cooperative Agreement applications or amendments
to cover such projects.
A. CERCLA Section 104(c)(3) Assurances
Before EPA funds an RA, the State is required by
CERCLA section 104(c)(3) to provide assurances regarding
operation and maintenance (O&M), off-site treatment, stor-
age, or disposal, and cost sharing.
Operation and Maintenance
Pursuant to CERCLA section ,104(c)(3)(A), the
State shall provide all future operation and
maintenance costs (O&M) of the remedial actions
provided under this Agreement for the expected
life of such actions. During remedial design,
the State shall submit to EPA for review and ap-
proval an O&M plan. At a minimum, the plan shall
include: a description and schedule of O&M ac-
tivities; an estimate of the duration of such
activities; remedy performance standards; a con-
tingency plan for abnormal occurrences; safety
requirements for O&M activities; staffing re-
quirements; equipment and materials requirements;
a monitoring program to demonstrate the continued
effectiveness of the remedial action; annual O&M
costs; an O&M financing plan; designation of the
State agency responsible for O&M; and a descrip-
tion of site use and disposition of facilities
following completion of O&M. Should major
changes to the statement of work for the remedial
action occur during implementation, the State
agrees to modify its O&M plan, with the concur-
rence of EPA, to reflect these changes.
Off-Site Treatment, Storage, or Disposal
In accordance with CERCLA section 104(c)(3)(B), a State
must assure the availability of an off-site treatment,
storage, or disposal facility before a selected remedy
requiring off-site transport of wastes can be selected.
Such a facility should satisfy the requirements of Sub-
title C of the Resource Conservation and Recovery Act
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9375.1-4-f
(RCRA). Additionally, a compliance inspection should have
been performed within six months before receipt of wastes
from a Superfund site.
The following provision is appropriate when the State
will identify the facility.
The State and EPA have determined that off-site
treatment, storage, or disposal of hazardous sub-
stances is required for the activities funded
under this Agreement. Pursuant to CERCLA section
104(c)(3)(B), the State will identify one or more
facilities with adequate capacity for waste dis-
posal that are acceptable to EPA and at a minimum
meet all applicable requirements of the Resource
Conservation and Recovery Act (RCRA). A RCRA
compliance inspection shall be completed by EPA
for any designated facility within six months
prior to the receipt at the facility of wastes
from the site. Prior to award of the State's
subagreement, the EPA Regional office will review
the results of the compliance inspection and
other available information to determine if the
facility meets the criteria set forth by EPA.
EPA approval is required prior to final selection
of a facility.
When the State elects to have an off-site disposal
facility identified through' the remedial action procure-
ment process, the following provision, or its equivalent,
should be used.
The State and EPA have determined that off-site
treatment, storage, or disposal of hazardous sub-
stances is required for the activities funded
under this Agreement. Pursuant to CERCLA section
104(c)(3)(B), the State is required to assure the
availability of a hazardous waste facility. The
State, in its invitation for bids for the reme-
dial action, may require respondents to provide
adequate capacity for waste disposal at a facil-
ity (or facilities) that meets all applicable
requirements of the Resource Conservation and
Recovery Act (RCRA). A RCRA compliance inspec-
tion shall be completed by EPA for the designated
facility within six (6) months prior to the re-
ceipt at the facility of wastes from the site.
Prior to award of the State's subagreement, the
EPA Regional office will review the results of
the compliance inspection and other available
information to determine if the facility meets
the criteria set forth by EPA. EPA approval is
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9375.1-4-f
required prior to final selection of the facility
to receive hazardous substances for the project.
State award of a subagreement will constitute the
State's assurance to EPA that CERCLA section
104(c)(3)(B) requirements have been met.
State Cost Sharing
Under a Cooperative Agreement, the State can meet its
cost-sharing assurance requirements by completing the
project budget sheets included in the Cooperative Agree-
ment application form. No specific provision addressing
cost sharing is necessary, unless the State chooses to
advance match during an earlier phase of response. Such a
Cooperative Agreement application should contain a provi-
sion specifying that prior advance match funds are to be
used to off-set the State's required match for remedial
action.
The State has provided $[ ] as advance match
under [type of response agreement/amendment]
dated [ ]. This amount reduces the State's
required cost share for remedial action conducted
pursuant to this Cooperative Agreement/
Amendment. Any advance match funds remaining at
the conclusion of the remedial action may be used
to off-set the State's required cost share for
operation and maintenance (O&M) of the remedy, if
the State seeks EPA support for the cost of the
O&M, not to exceed one year. Advance match funds
are subject to EPA audit. The Cooperative Agree-
ment, and the State's required payment, may be
adjusted accordingly, based on the findings of
the audit.
B. State Credits
Under a Cooperative Agreement covering activities
requiring State cost sharing, the State may provide up to
100 percent of its cost-sharing obligation by authorizing
drawdown of available, site-specific credit granted pur-
suant to CERCLA section 104(c)(3)(C) . At sites where the
State has submitted a credit verification request to EPA
but has not yet received that verification, the following
provision may be used.
CERCLA sections 104(c)(3) and 104(d)(l) require
that the State pay or assure payment of [10 or
50] percent of the costs of the remedial action
activities to be undertaken pursuant to this Co-
operative Agreement. CERCLA section 104(c)(3)(C)
provides that EPA will grant the State a credit
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9375.1-4-f
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 subdi-
vision thereof between January 1, 1978, and
December 11, 1980, for eligible response ac-
tions. The State has submitted a credit verifi-
cation request of $[amount of credit request] for
expenditure of funds for response actions at this
site between January 1, 1978, and December 11,
1980. EPA accepts this estimate at face value
pending final verification of the eligibility and
allowability of these costs. At EPA's request,
the State shall make supporting documentation
available for audit. Based on final verification
of these costs, the amount the State will have
available to provide as its cost share for reme-
dial implementation conducted under this Cooper-
ative Agreement will be adjusted to satisfy the
State's cost-sharing responsibilities. The State
will not be reimbursed for any credit remaining
at the conclusion of Federally funded response
actions at this site, nor may the State apply
remaining credit to the cost of remedial activ-
ities at another site.
When the State has a verified credit, the following
paragraph is appropriate for an agreement covering a reme-
dial action project at a site:
CERCLA sections 104(c)(3) and 104(d)(l) require
that the State pay or assure payment of [10 or
50] percent of the costs of the remedial action
activities to be undertaken pursuant to this Co-
operative Agreement. 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 subdivi-
sion thereof between January 1, 1978, and
December 11, 1980, for eligible response ac-
tions. The State has a credit of $[amount of
verified credit], verified on November 15, 1984
[date of letter to State making a final credit
determination based on an audit report], for ex-
penditure of funds for response actions at this
site between January 1, 1978, and December 11,
1980. This credit will be applied toward the
State's cost-sharing obligation for remedial im-
plementation conducted under this Cooperative
Agreement. The State will not be reimbursed for
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9375.1-4-f
any credit remaining at the conclusion of
Federally funded response actions at this site,
nor may the State apply' remaining credit to the
cost of remedial activities at another site.
C. Compliance with the Record of Decision (ROD) and EPA
Guidance
The two primary source documents that the State must
use in conducting CERCLA RD and RA projects are the ROD
for the site and the manual Superfund Remedial Design and
Remedial Action Guidance, published by OERR in June 1986.
The ROD outlines the approved scope Of the remedy and its
estimated cost while the RD/RA guidance, manual provides
Superfund program requirements for RD arid RA projects.
In implementing the remedial design [and/or reme-
dial action] project(s) at the [name] site pursu-
ant to this Agreement, the State agrees to comply
with the remedy as approved in the Record of De-
cision for this site, dated [ ], and with guid-
ance provided in the manual Superfund Remedial
Design and Remedial Action Guidance, OERR, June
1986.
D. Design Review
EPA must review, approve, and accept the State's RD at
the following points: the preliminary design (30 percent
complete), the intermediate design (60 percent complete),
the pre-final design (95 percent complete), and the final
design (100 percent complete). The State is responsible
for providing the Agency with copies of the design at
these junctures so that EPA can determine that the design
is consistent with the ROD and is technically adequate.
The State is responsible for addressing EPA comments and
for revising the design, as necessary.
The State agrees to submit the design for the
remedy at the [name] site to EPA for review and
approval at four points in its. development: 1)
preliminary design .(30% complete); 2) intermedi-
ate design (60% complete); 3) pre-final (95% com-
- plete); and 4) final (100% complete). EPA will
review the design for compliance with the ROD and
for technical adequacy. The State agrees to ac-
comodate EPA comments and to revise the design
accordingly. Should EPA determine that major
design changes are occurring that would, signifi-
cantly alter the scope of the remedy the EPA
Project Manager will notify the State in writ-
ing. The State agrees to halt design activities
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temporarily and to negotiate a mutually accept-
able solution with EPA.
E. Biddability/Constructability Review
States should subject their bid documents for RA proj-
ects to an independent .biddability/constructability review
to ensure that they are technically accurate and ade-
quate. The State may choose to conduct these reviews it-
self or may retain a contractor to do so. In either case,
EPA, through the COE, may require its own review for un-
usually complex projects or for those where severe time
constraints exist. When the Agency determines such a re-
view is necessary, EPA should include in its Cooperative
Agreement award a provision similar to the following.
The State agrees to submit its draft bid docu-
ments to EPA for review. EPA, via the COE, will
complete its review within [number] days. At the
conclusion of the evaluation/ EPA will provide
comments to the State. The State agrees to con-
sider all comments and to revise the bid docu-
ments appropriately.
F. Change Order Management During Construction
Before the State can approve any change order, it must
conduct a cost analysis, in accordance with 40 CFR 33.290,
and a technical and administrative analysis ,to ensure that
all proposed changes are consistent with the Cooperative
Agreement SOW and the approved ROD for the site. The
State should forward its analyses to EPA with its quar-
terly report.
The State agrees to conduct a cost analysis of
all contractor change order requests estimated to
exceed $10,000, in accordance with 40 CFR
33.290. The State further agrees to conduct a
technical and administrative review of all change
order requests to ensure consistency with the
Record of Decision. This review, at a minimum,
will examine the technical basis for the change
order request, the allowability of proposed cost
changes, compliance with contractual and regula-
tory requirements, and conformance with the ap-
proved SOW for this Agreement. The State agrees
to submit to EPA for review all change order
technical and administrative analyses as attach-
ments to the State quarterly report.
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G. Construction Contingencies
The Cooperative Agreement award for an RA will include
a construction contingency fund expressed., as a percentage
of the total project costs. The State may approve any
change order that totals up to 20 percent of the project
contingency fund and may continue to approve such change
orders until 75 percent of the total contingency fund has
been depleted. For change orders that individually exceed
20 percent of the fund or when the total reaches 75 per-
cent of the fund, the- State must receive EPA approval be-
fore authorizing any further change orders that increase
project costs.
EPA obligates $.[project cost less contingency] to
the remedial action project to be conducted at
the [name] site pursuant to this Cooperative
Agreement. The balance, of the obligated project
funds is to be used as a change order contingency
fund. The State agrees to conduct the necessary
change order cost review, pursuant to 40 CFR Part
33, and a Superfund technical and administrative
review to ensure consistency with the statement
of work for this Agreement and the Record of De-
cision for the site. The State must submit to
EPA its analyses for any change order request
that individually exceeds 20 percent of the
change order contingency fund, and when cumula-
tive change orders require expenditure of more
than 75 percent, of the fund. EPA will review
such requests and will inform the State in writ-
ing of its findings. The State shall not author-
ize such changes until first having received EPA
approval. The State further agrees to include in
its quarterly report information on contingency
fund expenditures.
H. RD/RA Quarterly Reports
There are several unique requirements placed upon the
State during the RD/RA. The State is obligated to report
on the use of the change order contingency fund for all
RD/RA activities. The quarterly reporting condition,
found in Section 2 of this appendix, therefore, requires
the addition of language discussing these requirements.
The State must inform EPA of the status of its
expenditures from the change order contingency
fund. EPA has obligated $[ ] for the project;
the remainder is the amount of the project con-
tingency fund. The State agrees to inform EPA,
in its quarterly report, of the total expendi-
tures from the contingency fund to date (dollars
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and percentage); total expenditures from the fund
during the reporting period (dollars and per-
centage); unusual expenditures from the contin-
gency fund during the reporting period, such as
change orders exceeding 20 percent of the fund;
and the balance remaining. The State also agrees
to inform EPA, to the best of its ability, at
least one reporting period before additional
funds are required in the project contingency
fund.
I. Off-Site Reporting
It is necessary that EPA keep track of all Superfund
off-site treatment, storage, and disposal activities. The
RPM should ensure that the official site file contains
complete information on the use of off-site facilities.
The following language is to be used in Cooperative Agree-
ments for remedial actions involving off-site treatment,
storage, or disposal.
For any Federal fiscal year quarter in which
off-site treatment, storage, or disposal takes
place, the State's quarterly report shall detail
the following information: type and form of
wastes; quantity of wastes; name, location, and
identification number of facility(ies) utilized;
pretreatment of wastes before transportation and
at the facility; final method of treatment or
disposal; compliance sta'tus of the facility and
summary of any State inspection reports prepared
during the quarter; and, if wastes were land-
filled, the disposal cell number or location and
type of liner.
J. Resident Inspection
To ensure that an RA for a site is consistent with the
ROD, the approved SOW, and contract specifications, the
State should provide full-time resident inspection. Each
Cooperative Agreement application covering an RA should
contain a provision specifying that the State will provide
such oversight to ensure successful completion of the
project.
The State shall provide, unless otherwise ap-
proved by EPA, full time resident inspection of
construction activities to ensure, to the maximum
extent practicable, compliance with the subagree-
ment documents.
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K. Final Inspection
The State must, provide EPA with the opportunity to
verify that the RA has been completed successfully. At
the conclusion of the RA, joint EPA/State final inspection
is needed to confirm that the remedy has been implemented
properly and that all outstanding action items are
resolved.
The State and EPA will jointly inspect the proj-
ect to confirm that all outstanding remedial ac-
tion items are resolved. The State shall prepare
a final inspection report describing any out-
standing items and their resolutions. A copy of
this report shall be submitted to the EPA Project
Manager.
L. Claims Management
States must institute a vigorous program for claims
prevention. States may choose to engage the services of
consultants specializing in claims management; however,
before it incurs costs for this purpose the State must
request EPA to provide funds for claims management.
The State has requested EPA to fund the use of a
consulting firm to manage the State's claims
evaluation and resolution program, pursuant to
this Cooperative Agreement. The amount of
$[ __]. has been obligated for this purpose.
Should the State require additional funds, it
must submit to EPA a written request and the
Agreement may be amended accordingly. All re-
quests for such funds will be balanced against
the need to use fund monies to respond at other
sites. The State will be notified in writing of
EPA's final determination.
M. Claims Negotiation and Defense
The State may request EPA to provide the funds neces-
sary to pay a portion of the legal, technical, and admini-
strative costs that the State incurs in analyzing and nego-
tiating or defending itself against claims. Such costs
will be shared on the same percentage basis as the RA. For
these costs to be eligible under the Cooperative Agreement,
the claim must arise from work within the scope of the
Agreement and the Award Official must determine that there
is significant Federal interest in the issues of the claim.
The State shall not expend funds awarded under
the Agreement for claims defense until it sup-
plies a copy of the schedule, budget, and scope
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9375.1-4-f
of work necessary for this activity and receives
written approval from EPA. The Award Official
will review this documentation and ascertain
whether the request is merited and allowable un-
der the Agreement. Any request for funds for
claims negotiation and defense will be balanced
against the need to use fund monies to respond at
other sites. The Award Official will inform the
State in writing of the final determination.
N. Claims Settlement
The State may request EPA to provide funds on the
same percentage basis as the RA to pay a settlement
reached during claims negotiation if costs of the set-
tlement are within the scope of the project. To do so,
the State must submit its claim settlement to EPA to de-
termine whether the costs associated with the claim are
(1) allowable, (2) within the scope of work agreed upon,
and (3) consistent with the ROD.
The State has requested EPA to provide $[ _] for
the claim settlement negotiated with [name of
firm]. The claim settlement proposal is at-
tached. EPA has reviewed the proposal to ascer-
tain the technical accuracy of the alleged dif-
ferences in quantities and technical require-
ments; allowability of the proposed amounts; com-
pliance with contractual, regulatory, and statu-
tory requirements, including the timeliness and
format of the contractor's change order request;
conformance with the approved Cooperative Agree-
ment SOW; and State performance in managing the
contractor. EPA agrees with the State's analysis
of the reasonableness of the proposed settlement
and has found $[ ] of the costs allowable under
the existing Agreement.
0. Remedial Action Report
Every Cooperative Agreement application requesting
funds for remedial implementation should contain a provi-
sion requiring the State to prepare and submit a remedial
action report to document that the cleanup criteria de-
fined in the ROD have been met and that the remedy is per-
forming adequately.
The State agrees to prepare a remedial action
report for the site at the completion of the re-
medial action project performed under this Co-
operative Agreement. This report shall be sub-
mitted to the EPA Remedial Project Manager for
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9375.1-4-f
review within sixty (60) days after the joint
EPA/State inspection and acceptance of the remedy
by the State. This report shall, at a minimum:
summarize the work contained in the SOW for this
Agreement and certify that this work was per-
formed; detail actual costs and schedule; explain
and justify modifications made to this work (if
any); list criteria used in determining that the
remedy is functional and operational and detail
how these have been met; and describe final site
monitoring and maintenance provisions.
If the remedial action involves off-site treatment,
storage, or disposal, additional language, such as the
following, should be added.
With respect to any wastes taken off-site, the
report shall specify the types and forms of
wastes; quantity of wastes; name, location, and
identification number of facility(ies); compli-
ance status of the facility(ies) and summary of
any State inspection reports; pretreatment of
waste before transportation and at the facility;
final method of treatment or disposal; and, if
wastes were landfilled, the disposal cell number
or location and type of liner.
P. NPL Deletion
A site can be deleted from the current NPL at any time
after EPA has consulted with the State or the State has
specifically requested the deletion, and one or more of
the following criteria has been met:
EPA, in consultation with the State, has deter-
mined that responsible or other parties have im-
plemented all appropriate response actions re-
quired at that time
All appropriate fund-financed response under
CERCLA has been implemented and EPA, in consulta-
tion with the State, has determined that no fur-
ther cleanup by responsible parties is appropriate
Based on an RI, EPA, in consultation with the
State, has determined that the release poses no
significant threat to public health or the envi-
ronment and, therefore, taking of remedial mea-
sures is not appropriate.
The State will be requested to comment on the advance no-
tification of deletion and the NPL deletion package and
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9375.1-4-f
will be consulted at various points during the deletion
process. : ' '
At the successful completion of the remedial ac-
tion at the [name] site, performed pursuant to
this Cooperative Agreement, the State may request
EPA to delete the site from the National Priori-
ties List (NPL). The State agrees to participate
in the NPL deletion process by, at a minimum,
commenting on the proposal to delete the site and
reviewing the site NPL deletion package. The
State also agrees to provide EPA with all infor-
mation concerning the remedial action that will
be necessary to document the site deletion, or as
requested by EPA.
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6. PROVISIONS SPECIFIC TO STATE ENFORCEMENT-LEAD REMEDIAL
INVESTIGATION/FEASIBILITY STUDY PROJECTS
State-lead enforcement RI/FS Cooperative, Agreements
should contain the provisions found in the Sections 1,2,
and 4 of this appendix. In addition, they also should
contain the two provisions below. ,
A. Responsible Party Activities
Prior to conducting a State enforcement-lead RI/FS,
EPA requires that the State offer PRPs an opportunity to
conduct the RI/FS for the site. If PRPs come forward to
perform activities, the Region should approve any. required
changes to the RI/FS schedule and SOW.
The State agrees to offer the potentially respon-
sible parties (PRPs) the opportunity to conduct
the remedial investigation/feasibility study
(RI/FS). The State further agrees that any nego-
tiations with, or involvement of, PRPs will not
significantly delay the initiation of field ac-
tivities. Any change to the RI/FS schedule or
scope of work in this Cooperative Agreement will
be submitted to EPA for approval.
B. Enforcement Action
Using CERCLA funds for a State-lead enforcement en-
sures that the State has sufficient information to pursue
enforcement actions against the PRPs under State law and
that the remedial activities conducted at the site are
consistent with the NCP. EPA asks the State to commit
itself, in its Cooperative Agreement application, to pur-
sue enforcement activities at the completion of the FS and
to coordinate enforcement activities with EPA.
The State agrees to pursue administrative or
civil enforcement action at the completion of .
this project 'to (1) ensure performance of the
remedial design and remedial action by potenti-
ally responsible parties, or (2) collect from
potentially responsible parties the funds neces-
sary to conduct the remedial design and remedial
action. The State agrees to coordinate its en-
forcement schedule and strategy with EPA and to
submit its proposed enforcement schedule and
strategy to EPA for review and concurrence before
field activities commence.
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'Since the S'tate'cannothir-ecoyer any-CER'CLA funds that
EPA has provided, the enforcement and cost recovery provi-
sions in Section 2 still apply.
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7. PROVISIONS SPECIFIC TO STATE-LEAD REMOVAL COOPERATIVE
AGREEMENT APPLICATIONS .
[Provisions to be provided at a later date.]
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