UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9375.5-02 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM MAY I 1989 SUBJECT FROM TO Political Subdivision-Lead for Remedial^ Response - Directive 9375.5-03 Henry L. Longest II, Director Office of Emergency and Remedial ise Director, Waste Management Division Regions I, IV, V, VII, VIII Director, Emergency and Remedial Response Division Region II Director, Hazardous Waste Management Division Regions III, VI Director, Toxic and Waste Management Division Region IX Director, Hazardous Waste Division Region X I. Purpose To provide guidance to Regions, States, and political subdivisions thereof, on the designation of a political subdivision as the lead agency for remedial response under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of .1986 (CERCLA). This guidance applies to Fund-financed remedial response only and does not apply to pre- remedial, removal, or enforcement activities. In addition, this guidance does not apply to Federally-recognized Indian Tribes. Separate guidance on Federally-recognized Indian Tribes will be forthcoming. II Background This Directive supersedes'Directive 9375.1-6, February 12 1987, "Cooperative Agreements with Political Subdivisions for Remedial Response." We have since strengthened our original ------- Directive 9375.5-03 guidance because of section 121 of CERCLA which assigns States specific responsibilities during, Fund-financed response. The Agency has also promulgated 40 CFR 35 Subpart 0, the Super fund assistance regulation entitled, "Cooperative Agreements and Superfund State Contracts for Superfund Response Actions." This regulation requires the use of a three-party Superfund State Contract to ensure adequate involvement by the State pursuant to section 121(f) of CERCLA and to ensure that the CERCLA section 104 State assurances are provided in the SSC at the time of remedial action if a political subdivision is designated the lead agency. The changes to our earlier guidance are, therefore; 1) A legally binding document is now required to specify State involvement under CERCLA section I21(f) if a political subdivision has the lead for remedial response activities, including rerrredial planning. 2) States were previously able to document their CERCLA section 104 State assurances in a management assistance cooperative agreement during a political subdivision- lead. This is no longer allowaJd-le. However, a State may still receive money for management assistance, nov called "support agency assistance," in a cooperative agreement. 3) A three-party Superfund State Contract is required before any cooperative agreement funds can be obligated for a political subdivision-lead, and such SSC must be amended to add the CERCLA section 104 State assurances before a remedial action (RA) can be added to a political subdivision-lead cooperative agreement. These changes will allow us to comply with the new CERCLA section 121 requirements, and to provide a binding agreement process for the fullest possible involvement of all parties (ETA, States and political subdivisions) in Superfund response actions. This is one in a series of Directives to carry the number 9375.5 which is guidance relating to State, political subdivision and Federally-recognized Indian Tribe involvement in the Superfund program. We recommend setting aside a special binder for the Directives in this 9375.5 series. Indexing and keywording will be done under the Office of Solid Waste and Emergency Response (OSWER) Directives system. ------- Directive No. 9375.5-03 III. Introduction Section 104(d)(l) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986 (CERCLA), permits EPA to transfer Federal funds and to authorize States, or political subdivisions thereof, to undertake response activities at sites via a cooperative agreement. If both the State and EPA agree, a political subdivision with the necessary capabilities and jurisdictional authority may assume direct management responsibility for site activities. However, since section 121(f) of CERCLA assigns States specific responsibilities during Fund-financed response, the State must enter into a Superfund State Contract (SSC) with both EPA and the political subdivision before EPA will award a cooperative agreement to a political subdivision for remedial response. This SSC is required for a political subdivision-lead, even if the cooperative agreement to be awarded to the political subdivision is for remedial planning activities (remedial planning activities include remedial investigation, feasibility studies, and remedial design). If the political subdivision will have the lead for remedial action, the three-party SSC must be amended to include the appropriate CERCLA section 104 assurances before funds may be obligated to the political subdivision under a cooperative agreement. The state must provide these assurances in the three-party SSC for a political subdivision-lead remedial action. Even if the political subdi/ision is designated as responsible for carrying out a specific statutory assurance, the State must still agree to assume responsibility in the event of default or inability of a political subdivision to fulfill its assigned responsibilities. The procedure for authorizing a political subdivision lead is not complex, but it does require planning and coordination by each government entity. IV. Designation of a Political Subdivision as the Lead Agency for Remedial Response Approval of a political subdivision-lead for remedial response is discretionary and requires the full support and endorsement of the appropriate State Superfund Agency Director, as well as the EPA Regional Administrator. What legally constitutes a "political subdivision" differs from State to State; therefore, the State must determine what unit of government meets its legislative definition of a political subdivision. ------- Directive No. 9375.5-03 Whenever possible, if a political subdivision desires to take the lead for remedial response at a site, the State and EPA should determine the appropriateness of the political subdivision-lead during the State's and EPA's annual consultations. The Superfund Comprehensive Accomplishments Plan (SCAP) should then indicate that the response action is a political subdivision-lead. In all cases, the final decision on whether direct participation by the political subdivision is more economical or efficient than a State- or Federal-lead rests with the Regional Administrator. However, in the event that a political subdivision is a potentially responsible party (PRP), the Region should contact the Headquarters Program office at the lead designation stage. While being a PRP does not preclude the political subdivision from receiving a cooperative agreement pursuant to section 104(d)(l) of CERCLA, the Agency may make the determination that a settlement pursuant to section 122 of CERCLA would be the better course of action. V. Response Agreement Options for a Political Subdivision-Lead Remedial Response There are two options for political subdivision-lead remedial response that ensure State involvement and provide the mechanism for obtaining the State's required assurances. o A cooperative agreement with a political subdivision along with an enforceable three-party SSC defining the roles and responsibilities of the signatories and providing the vehicle used to obtain the State's CERCLA section 104 assurances. o A cooperative agreement with the State with a "pass through" to a political subdivision, along with a two-party Intergovernmental Agreement prior to costs being incurred for field activities. Both of these options are discussed in further detail below. A. Award of a Cooperative Agreement to a Political Subdivision ~ A.I Cooperative Agreement Application and Review Process Applications submitted directly to EPA by a political subdivision will not be acted upon unless the designated State Superfund Agency and EPA have agreed that the political ------- Directive No. 9375.5-03 subdivision is capable of undertaking the lead for remedial response and has jurisdictional responsibility for the site. In support of its cooperative agreement application, the political subdivision must provide an analysis of its capabilities to perform remedial work. EPA and the State will use the analysis to determine the appropriateness of a political subdivision-lead remedial response. This analysis must include the following: o History of the political subdivision's involvement at the site so that EPA may determine if the political subdivision is a potentially responsible party (PRP); o Evidence that the political subdivision has a demonstrated history in addressing problems at the site; o Evidence that the political subdivision has experience in performing work similar to that to be funded in the cooperative agreement; o Justification that direct participation by the political subdivision is likely to be more economical or efficient than a State- or Federal-lead; o Evidence that the political subdivision has the existing authority to conduct the remedial activities; o Evidence that the political subdivision has the existing authority to enter into a cooperative agreement with the Federal Government and the financial and management capabilities to administer Federal funds; o Indication that the political subdivision has an established liaison role with State and local agencies involved in problems at the site; o Justification of the political subdivision's capability to comply with 40 CFR Parts 31 and 35 Subpart 0 and other appropriate Federal regulations. There is no substantive difference between the application development' and review process for political subdivision-lead and that for State-lead Superfund cooperative agreements. Applications, scopes of work, and budget information must be prepared and submitted by the political subdivision in accordance with Superfund cooperative agreement requirements specified in section 35.6115(c) of 40 CFR Part 35 Subpart 0, "Cooperative Agreements and Superfund State Contracts for Superfund Response Actions." The political subdivision must satisfy the same ------- Directive No. 9375.5-03 regulatory requirements and must adhere to the same standards of accountability as any other recipient of CERCLA funds. A.2 Cooperative Agreement Award Pursuant to 40 CFR 35.6115 a Superfund cooperative agreement for remedial response will not be awarded to a political subdivision unless (1) the State, political subdivision, and EPA have entered into a three-party SSC that satisfies the requirements of section 121(f) of CERCLA, and (2) if applicable, the State has provided the appropriate CERCLA section 104 assurances at the time of remedial action. A political subdivision that enters into a Superfund cooperative agreement' with EPA has the responsibility for 1) accomplishing the activities agreed to whether it performs the work itself or engages contractors, 2) ensuring that funds are properly accounted for and expended by its agents in accordance with Federal statutory and regulatory requirements, and 3) complying with the requirements of 40 CFR Part 300, the National Contingency Plan (NCP). A. 3 The Three-Party Superfund State, .Contract (SSC) The three-party SSC specifies the roles and responsibilities of the signatories ensuring substantial and meaningful involvement of the State in the initiation, development, and selection of the remedial action to be undertaken as specified in section 121(f) of CERCLA and as described in Subpart F of the National Contingency Plan (NCP). Such activities include: Review the final and draft RI/FS and comment on the proposed alternatives Provide State Applicable or Relevant and Appropriate Requirements (ARARs) Review the proposed plan The opportunity to concur in the remedy (the same as for , Federal-lead procedures) — With EPA, determine the need to pursue enforcement actions against PRPs for conduct of the response actions < Concur in any substantive changes in the scope of work of project costs With EPA, jointly inspect the remedy at the conclusion of the remedial action ------- |