United States
               Environmental Protection
               Agency
      oEPA
Office of
Solid Waste and
Emergency Response
                  DIRECTIVE NUMBER: 9831. I-IA

                  TITLE: CERCLA Funding of Oversight of Potentially
                       Responsible Parties by States at National
                       Priorities List Sites
                                           /
                  APPROVAL DATE: October l, 1986

                  EFFECTIVE DATE:  October l, 1986

                  ORIGINATING OFFICE: OWPE

                  0 FINAL (Interim)

                  D DRAFT

                   LEVEL OF DRAFT
                        Signed by AA or DAA
                     D B  Signed by Office Director
                     DC  Review & Comment

                  REFERENCE (other documents):
  OSWER      OSWER      OSWER
VE   DIRECTIVE    DIRECTIVE   Dl

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           United States
           Environmental Protection
           Agency
             Office of
             Solid Waste and
             Emergency Response
 SEPA
DIRECTIVE NUMBER: 9831.1-1A

TITLE: CERCIA Funding of Oversight of Potentially
     Responsible Parties by States at National
     Priorities List Sites
                          c
APPROVAL DATE: October I, 1986

EFFECTIVE DATE: October 1, 1986

ORIGINATING OFFICE: OWPE

B FINAL  (Interim)

D DRAFT

 LEVEL OF DRAFT
                  - Signed by AA or DAA
             4
               D B  Signed by Office Director

               DC  Review & Comment


           REFERENCE (other documents):
S WER       OS WER      OS WER
  DIRECTIVE   DIRECTIVE    Dl

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 &EPA
              Unned States Environmental Protect-   jency
                      Washington. DC 20460'
      OSWER  Directive Initiation Request
                                             Interim Directive Numbr

                                              9831.1-1A
                                         Originator Information
Name of Contact Person
 Anthony M.  Diecidue
                                Mail Code
                        ..WH-527
                                Telephone Number
                                       382-A841
Lead Office

   O OERR

   D OSW
D OUST
Cvl
Ll OWPE

D AA-OSWER
                         Approved for Review
Signature ot Office Director
Date
Title
          CERCLA FUNDING OF OVERSIGHT OF  POTENTIALLY RESPONSIBLE PARTIES
           BY  STATES AT NATIONAL PRIORITIES LIST SITES
Summary ot Directive
           Sets forth the  policy and procedures for funding States in  support
           of their oversight of private  party response actions.

           Merges two previous oversight  funding guidances into one comprehensive
           document (see below for directives number  of these guidances).

           The Headquarters offices listed below have reviewed previously issued
           drafts pf this  guidance.  They also reviewed and carenented on this
          . final guidance.  Their comments have been  incorporated into this
           final guidance, and serves  as concurrence  on the document:

           Office of Emergency and Remedial Response  (Hazardous Site Control Division)
           Officef of Enforcement and Compliance Monitoring
           Office' of General Counsel'"
 Type of Directive (Manual. Policy Directive. Announcement, etc.I

             Guidance
                                 Status

                                    O .Draft .
                                      ia-ea
                                      Final
                                                                    O New

                                                                    lzJ Revision
 Does this Directive Supersede Previous Directive(s)?   |X) Yes   |  | No   Does It Supplement Previous Direcnve(s)?[ |  Yes\ "] No
 If "Yes" to Either Question. What Directive (number, title)
  9831.1  and 9831.1(a),  same titles as above.
 Review Plan

    D AA-OSWER

    13 OERR
 D.OUST
 03 OWPE
 E
    OECM
    OGC
 D
                                                       of

This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer j fl
Signature of OSWER directives Officer
Date
Date 1
  EPA Form 1315-17(10-05)

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  I        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

  /                    WASHINGTON, D.C. 20460
                         OCT - I 1986
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE

MEMORANDUM

SUBJECT: /QERCLA Funding 'of Oversight of Potentially Responsible
         /^artiasL,6y States at National Priorities List Sites
           ///y/^K
FROM:    /T&. Wi'hston PtfrTer
         'Assistant Administrator

TO:       Addressees

     This memorandum sets forth the policy and procedures for
funding States in support of their oversight of private party
response actions (OSWER Directive Number 9831.1-1A).

     This final guidance explains the conditions to be met,
tasks to be funded and levels of funding to be provided for
remedial oversight activities.  In previous drafts, oversight of
remedial planning (January 17, 1986 guidance) and remedial imple-
mentation (March 26, 1986 guidance) were separately addressed.
The attached guidance merges these previous drafts into one
comprehensive document.  An appendix is also included, outlining
the enforcement provisions required in each cooperative agreement
(CA) application and applicable provisions from Appendix F,
State Participation in the Superfund Program.

     The award of CAs under this guidance for fiscal year 1987
(assuming CERCLA reauthorization) will be on a pilot project
basis.  When determining, which sites to fund as pilot projects,
priority consideration should be given to States that demonstrate
the following:

     0 Established, in-house capability to implement the necessary
       technical and legal tasks associated with hazardous waste
       enforcement;

     0 Experience in conducting successful enforcement actions at
       hazardous waste sites; and

     0 Willingness to closely coordinate with the Agency and provide
       opportunities for review and consultation prior to making
       major decisions.

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                               -2-
As experience is gained in funding these pilot projects, the
guidance may be revised in the future.

     When reviewing applications for these activities during
this time period, the Regional Project Manager (RPM) should work
closely with the Regional grants office and Regional Counsel to
ensure that the application is sufficient and complete.  RPMs
should also coordinate closely with their Headquarters Regional
Coordinator in the Office of Waste Programs Enforcement (OWPE).
The Region must submit draft CA applications to the Director,
CERCLA Enforcement Division, OWPE for review prior to award.
This is necessary to ensure that implementation of these new
funding activities is consistent nationally, and that monies
available in the future are properly distributed to the Regions.
A more detailed description of the review and award process is
also attached to this memorandum.

     In a related matter, CERCLA reauthorization will have some
impact on the guidance.  Under Section 104(a)(l), responsible
parties can be authorized to conduct a remedial investigation
and feasibility study only if:

     0 the responsible party is qualified to conduct the RI/FS;

     0 the President contracts with or arranges for a qualified
       person to provide assistance in overseeing and reviewing
       a responsible party conducted remedial investigation and
       feasibility study; and

     0 the responsible party agrees to "reimburse" the Fund for
       any cost incurred by the Agency in connection with the
       oversight contract or arrangement.

OWPE is currently reviewing the impact of these requirements and
will prepare supplemental guidance.

     If you have any questions on the guidance, you may contact
Tony Diecidue, Office of Waste Programs Enforcement (WH-527), U.S
Environmental Protection Agency, 401 M. Street, S.W., Washington,
D.C., 20460 or telephone him at 202/FTS 382-4841.

Attachments

Addressees:

Directors, Waste Management Divisions, Regions I,IV,V,VII,VIII
Director,  Emergency and Remedial Response Division, Region II
Director,  Hazardous Waste Management Division, Region III
Directors, Air and Waste Management Division, Regions II,VI
Director,  Toxics & Waste Management Division, Region IX
Director,  Hazardous Waste Division, Region X
Regional CERCLA Branch Chiefs, Regions I-X
Regional Counsels, Regions I-X
Regional Assistance Management Contacts, Regions I-X

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                                                          9831.1-1A
                   CERCLA FUNDING OF OVERSIGHT
               OF POTENTIALLY RESPONSIBLE PARTIES
          BY STATES AT NATIONAL PRIORITIES LIST SITES
PURPOSE
     The purpose- of this guidance is to assist EPA Regional
offices and States on funding, under a CERCLA cooperative
agreement (CA), of State oversight of Potentially Responsible
Parties (PRP) conducting Remedial Investigations (RI) , Feasibility
Studies (FS), Remedial Designs (RD), Remedial Actions  (RA) and
Operation and Maintenance (O&M) at sites on the National Priorities
List (NPL).  The guidance also discusses funding of States during
a Federal enforcement response.

BACKGROUND

     The Office of General Counsel has concluded that CERCLA
funding may be provided to States to support a broad range of
enforcement related activities.  This is in addition to State
conducted, Fund-financed RI/FS to support enforcement actions
at NPL sites.  The reason is that such activities are  included
under CERCLA, Section 104(b) and conseguently are eligible for
CERCLA funding .*

     The role of States in oversight of PRP conducted RI/FS, RD,
RA and O&M depends on whether the State or EPA negotiated the
administrative order (AO)  or consent decree (CD).  If the State
negotiated the AO or CD, then the State has the lead for oversight
of,the PRP's work.  If EPA negotiated the AO or CD, then EPA has
the lead for oversight.  When EPA has the lead for oversight,
the State may receive management assistance funding in order to .
meaningfully participate in reviewing PRP response activities
at the site.  The State may also, under certain circumstances,
undertake various, mutually agreed upon oversight activities
in place of EPA.  These circumstances may include the  following:
       CERCLA, Section 106 settlements with PRPs that are jointly
       negotiated and signed by EPA and the State; and

     0 State oversight that can result in a more effective and
       timely PRP response.

GUIDANCE

     In determining whether to fund a State for oversight of a
PRP response action, the Region should employ the same standard
of review as if work were to be performed by the Regional office
(or contractor working for the Regional office).  First, the Region
should assess the State's ability to meet the classification
criteria outlined in the EPA/Association of State and Territorial
     * L.A. DeHihns, Authority to Use CERCLA to Provide Enforcement
Funding Assistance to States, July 20, 1984 and February 12, 1986.

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                                -2-                       9831.1-1A
Solid Waste Management Officials (ASTSWMO) policy memorandum of
October 2, 1984.  Prior to accepting a CA application for review
and award, the criteria should be applied to the site.  Secondly,
the Region should pay particular attention to the itemized budget
submitted along with the CA application.  The budget should be
carefully reviewed to ensure that adequate resources and staff
expertise are devoted to the project.  Along with these consider-
ations, the conditions and requirements outlined in this guidance
must be incorporated into the CA application prior to award.

     The guidance explains the conditions for awarding funds and
the fundable tasks for each activity.  This guidance does not
preclude the Regions from including additional enforcement-related
conditions in the application, if warranted.  Furthermore, applic-
able provisions outlined in Appendix F, State Participation in the
Superfund Program, must be incorporated into each CA application.

     When developing CA applications for these activities, the
Regional Project Manager (RPM) should work closely with the Regional
grants office and Regional Counsel to ensure that the application
is sufficient and complete.  RPMs should also coordinate closely
with their Headquarters Regional Coordinator in the Office of Waste
Programs Enforcement (OWPE).  Since this is new guidance, the
Region must submit draft CA applications to the Director, CERCLA
Enforcement Division, OWPE for review prior to award.  This review
is necessary to ensure that implementation of these new funding
activities is consistent nationally, and that monies available
in the future are properly distributed to the Regions.

1. ' Funding State Oversight of PRPs - State Enforcement Response

     If a State successfully negotiates to have the PRPs conduct
the RI/FS, RD, RA and/or O&M, it will be in the State's interest
to oversee their work.  As a general rule, States should attempt
to secure funds for this oversight in advance from the PRPs as
part of the settlement.  Where this is not possible, EPA may
fund the State for oversight and will seek future CERCLA 107
cost recovery for those costs.

     A.1  Conditions for Funding under a Cooperative Agreement:
          Oversight of RI/FS

     In order to receive funding from EPA for oversight of a PRP
conducted RI/FS, the State must include the following information
and assurances in their CA application.  Except where noted, the
following information and assurances must be certified-by the
State's Governor, Attorney General, designee or appropriate State
agency.

     1.   The State must have issued or obtained an enforceable
          order, decree or other enforceable document requiring
          the PRP to conduct a RI/FS in accordance with the
          National Contingency Plan (NCP) and applicable EPA

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                                -3-                       9831.1-1A


          policy and guidance.  A copy of the order must be
          included in the CA application.*

     2.   The State must provide a letter outlining the State
          enforcement authorities that provide the basis for
          initiating enforcement action against PRPs (e.g. admin-
          istrative action or litigation) which can result in
          securing the necessary response.

     3.   The State must certify that:

          0 (1) it believes a good enforcement case exists against
            the PRPs (i.e., financially able to undertake the remedy
            or have resources equal to or greater than the expected
            cost of the remedy) and (2) site conditions meet the
            elements of proof required by the State's authority
            (i.e.  imminent and substantial endangerment).

          0 If a good enforcement case continues to exist at the
            completion of the RI/FS, the State agrees to pursue
            administrative or judicial enforcement action to (1)
            assure performance of the RD/RA/O&M by the PRP or (2)
            collect from the PRP the funds necessary to conduct
            the RD/RA/O&M.

          0 It will select a remedy that is consistent with the NCP.

          0 It attempted to secure funds for oversight of the RI/FS
            from the PRP and cite reasons why this was not possible.

     4.   The State must agree to submit all final plans, reports,
          specifications, and/or recommendations to EPA for review
          and concurrence prior to their issuance or implementation.
          Final PRP documents or plans and PRP change orders that
          substantially change the scope of work must be submitted
          to EPA prior to issuance for review and concurrence to
          ensure technical adequacy and compliance with the terms
          of the CA.  The State must also assure in the CA that it
          will not expend funds for oversight of the RI field
          activities until EPA has had the opportunity to review
          and concur on the RI/FS work plan and has indicated in
          writing that this condition was satisfied.  EPA will
          agree to provide their review within the timeframes or
          schedules established in the order.**
     * If a three party agreement (EPA, State and PRP), then only
cite the enforceable document since a copy should already be in
EPA's possession.
    ** If work plans are prepared and submitted concurrent with the
enforceable document, they should be submitted for review with the
CA application.

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                                -4-                       9831.1-1A
     5.   The State roust conduct a community relations plan in
          accordance with applicable EPA guidance.*  The plan must
          include a provision for public comment on the RI/FS.

     A.2  Conditions for Funding under a Cooperative Agreement:
          Oversight of RD/RA/O&M

   In order to receive funding from EPA for oversight of a PRP
conducted RD, RA and O&M, the-'State must include the following
information and assurances in its CA application.  Except where
noted, the following information and assurances must be certified
by the State's Governor, Attorney General,  designee or appropriate
State agency.

     1.   The State must have issued or obtained an enforceable
          order, decree or other enforceable document requiring
          the PRP to conduct a RD, RA and O&M in accordance with
          applicable EPA policy and guidance.  A copy of the order
          must be included in the CA application.**

     2.   The State must provide a letter outlining the State
          enforcement authorities that provide the basis for
          initiating enforcement action against PRPs (e.g. admin-
          istrative action or litigation) which can result in
          securing the necessary response.

     3.   The State must certify:

          0 That (1) it believes a good enforcement case exists
            against the PRPs (i.e., financially able to undertake
            the remedy or have resources egual to or greater than
            the expected cost of the remedy) and (2) site conditions
            meet the elements of proof required by the State's
            authority (i.e., imminent and substantial endangerment).

          0 It attempted to secure funds for oversight of the RD,
            RA and O&M frcJm the PRP and cite reasons why this was
            not possible.

     4.   The State must submit documentation, similar to EPA's
          Record of Decision (ROD) or Enforcement Decision Document
          (EDO), outlining the information and rationale used to
          select a remedy consistent with the NCP.  This documen-
          tation must be included in the CA application.**
     * See the document Community Relations in Superfund;  A Handbook,
especially Chapter 6 which deals with community relations  during
enforcement actions.
    ** If a three party agreement (EPA,  State and PRP), then only
cite the documentation since it should already be in EPA's possession

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                                -5-                       9831.1-1A
     5.   The State must certify that it attempted to secure funds
          for oversight of the RD, RA and O&M from the PRP and
          cite reasons why this was not possible.

     6.   The State must agree to submit all final plans, reports,
          specifications, and/or recommendations to EPA for review
          and concurrence prior to their issuance or implementation.
          Final PRP documents or plans and PRP.change orders that
          substantially change"the scope of work shall be submitted
          to EPA prior to issuance for review and concurrence to
          ensure technical adequacy and compliance with the terms
          of the CA.  The State may not expend funds for oversight
          of the RD, RA and O&M activities until EPA has had the
          opportunity to review and concur on the RD, RA and O&M
          work plan and has indicated in writing that this condition
          was satisfied.  EPA will agree to complete its review
          within the timeframes or schedules established in the
          order.*

     7.   The State must prepare and implement a community relations
          plan in accordance with applicable EPA guidance.

     The Regional Administrator will review the rationale used to
select the remedy, the enforceable document and the CA application.
Based on this review, the Regional Administrator may decide to:

          Fund oversight of the RD, RA and O&M (all or some of the
          tasks in the application);

  '   -    Not fund oversight of the RD, RA and O&M if the State
          and PRP negotiated remedy is unacceptable to EPA; or

     -    Initiate EPA enforcement actions against the PRP.

     In order to avoid delays and problems during EPA's review,
States should coordinate with the RPM throughout the RI/FS, remedy
selection process and negotiations with PRPs.

     B.1  Fundable Oversight Tasks:  RI/FS

     Currently, EPA does not have experience with funding States
to oversee PRPs conducting remedial response -tasks.  In an effort
to provide States and Regions with some guidelines on costs and
allowable tasks, we reviewed the Federal experience with oversight.
We also reviewed typical State costs for certain specific tasks.
Based on these reviews, we have determined that State costs for
oversight generally should range between 8% to 10% of the cost of
the RI/FS.  The rationale is that the PRPs are responsible for
actually managing the work and conducting the RI/FS.  States should
not be duplicating work conducted by the PRPs.  Therefore, in
most situations, funding within this range should be adeguate for
     * If work plans are prepared and submitted concurrent with the
enforceable document, they should be submitted for review with the
CA application.

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                                -6-                       9831.1-1A


oversight.  Funding above this range may be provided if adequate
justification is provided in the CA application.

     In preparing and reviewing the proposed budget, it might be
helpful for States and Regions to consider oversight as consisting
of review tasks,community relations, and field related tasks.
States should attempt to specify in the enforceable document the
roles and responsibilities of the PRP as distinguished from the
roles and responsibilities of .the State in each of these major
categories.

     Review tasks conducted by the State might include:

          Review preliminary planning documents;

          Review and comment on scope of work and work plans;

          Review and comment on quality assurance project plans
          and site safety plans;

          Review and comment on draft RI reports;

          Review final RI reports;

          Review and discuss FS objectives;

          Review and comment on draft FS;

          Review final FS;

          Review PRP monthly progress reports;

          Organize and participate in technical meetings on the
          RI/FS with the PRPs, PRP contractors, and/or EPA.

     Community relations tasks conducted by the State might include:

          Conduct discussions with the affected community in
          the locale of the site;

          Prepare community relations plans;

          Hold public comment period on the RI/FS;

          Brief local and State officials;

          Hold public meetings on technical aspects of the site;

          Prepare fact sheets and press releases and disseminate
          information;

          Prepare summaries of public concerns.

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                                -7-                       9831.1-1A


     Field related tasks conducted by the State might include:*

          Prepare or assist the PRP to prepare detailed work plans;

          Environmental monitoring (e.g. air, water);

          Take and analyze split samples or confirmatory samples; and

          On-site presence/inspection.

     B.2  Fundable Oversight Tasks; RD/RA/O&M

     Federal experience with RD and RA oversight was also reviewed
in an effort to provide States and Regions with some guidelines on
costs and allowable tasks.  Based on this review, it is recommended
that funding for State oversight costs generally should range between
4 to 6 percent of the cost of the RD and RA.  Again, the rationale
is that the PRPs are responsible for actually managing the work
and implementing the RD and RA.  States should not be duplicating
work conducted by the PRPs.  Therefore, in most situations, funding
within this range should be adeguate for oversight.   Funding above
this range may be provided if adeguate justification is provided
in the CA application.

     Furthermore, in accordance with current policy on Fund-financed
remedial actions, EPA may, for a period not to exceed one year after
completion of remedial response activities, share in the costs of
any reguired O&M.  Consistent with this policy of providing technical
assistance to a State on O&M, EPA will also consider funding a State's
oversight of PRP-conducted O&M, for a period not to exceed one year
after completion of PRP remedial response activities.  After reviewing
its experience with O&M, EPA has determined that State costs for
oversight generally should not exceed 4 to 6 percent of the cost
of the O&M.

     Fundable oversight tasks for RD
                          
     Review tasks conducted by the State might include:

          Participate in technical design briefings for RD initiation;

          Review design scopes of work;

          Technical meetings on the RD with the PRPs, PRP contractors
          and/or EPA;

          Assist in reviewing preliminary design documents and
          design changes which may affect remedy selection;
     * The amount and scope of field related tasks to be funded by
EPA during oversight should be negotiated on a case-by-case basis.
The amount reguired varies widely according to the type and condition
of the site, and other considerations.

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                        -8-                          9831.1-1A
     Review and comment on value engineering screening
     submittals;

     Review and comment on quality assurance project plans,
     site safety plans and intermediate design documents;

     Review and comment on plans for operation and maintenance
     developed by PRP;

     Review final RD.

Community relations tasks conducted by the State might include:

     Prepare fact sheets and notify public on RD activities
     and what the RD is expected to entail;

-    Continue prior community relations activities as needed;

Fundable oversight tasks for RA

Review tasks conducted by the State might include:

- Review and comment on PRP or PRP contractor work plans,
  health and safety plans, QA/QC procedures, etc;

- Review any construction change orders that may alter the
  approved remedy and amend the CA and Record of Decision
  or Enforcement Decision Document as appropriate with concur-
  rence of EPA.

- Review and comment on draft and final RA reports;

- Participate in pre-construction and pre-final construction
  conferences;

- Review PRP or PRP contractor monthly progress reports; and

- Organize and participate in technical meetings on the RA
  with the PRPs,  PRP contractors, and/or EPA.

- Certify that the remedy is complete.

Community relations tasks conducted by the State might include;

- Revise original community relations plans to incorporate
  any changes required due to remedial design and construction
  activities;

- Conduct discussions with the affected community on the
  selected remedy and planned construction activities; and

- Hold meetings with the public during the RA.

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                             -9-                          9831.1-1A


     Field related tasks conducted by the State might include

     - Provide periodic monitoring and oversight of construction
       activities;

     - Take and analyze split samples or confirmatory samples: and

     - Participate in pre-final and final inspections, and project
       acceptance.

     Fundable oversight tasks for O&M

     Review tasks conducted by the State might include-

     - Review O&M manuals or workplans developed by the PRP or PRP
       contractor;

     - Participate in technical meetings on the O&M with the PRPs,
       PRP contractors, and/or EPA;

     - Review pre-final and final inspection reports;

     - Review final technical reports; and

     - Review monitoring reports, and NPL deletion documents.

     Community relations tasks conducted by the State might include:

     - Prepare fact sheets and notify the public of the O&M activities
   ,    and explain what O&M is expected to entail; and

     - Continue prior community relations activities, as needed.

     Field related tasks conducted by the State might include:

     - Be present at trial runs/shakedowns of major equipment;

     - Conduct periodic field inspections.

     Funding State Management Assistance and Oversight of PRPs -
     Federal Enforcement Response

     A.   Management Assistance during a Federal Enforcement Response

     If  EPA has negotiated the administrative order or consent
decree with the PRPs,  EPA will have the lead for oversight of PRP
activities and for community relations.   In this situation, States
may receive funding for management assistance.  Management assistance
essentially will involve review tasks and is explained in Volume I
of the EPA manual State Participation in the Superfund Program.  EPA
will not fund States to hire contractors for management assistance
tasks.

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                              -10-                          9831.1-1A


      B.   Oversight  during  a  Federal  Enforcement  Response

      The  State  may  also, under  certain  circumstances,  undertake
 various,  mutually agreed upon oversight activities  in  place  of
 EPA.   These  circumstances  may include the  following:

      0 CERCLA,  Section  106 settlements  with  PRPs  that  are  jointly
       negotiated and signed by EPA  and the  State;  and

      0 State oversight  that  can result  in  a  more  effective and
       timely PRP response.

      This means the State  would be conducting  some  review, community
 relations and/or field  related  oversight tasks along with  EPA or
 EPA's contractor.   For  each  task, the CA application should  clearly
 outline the  roles and responsibilities  of  the  State as distinguished
 from  the  roles  and  responsibilities  of  EPA or  EPA's contractor.   It
 should be made  clear, however,  that  the State  cannot act as  EPA's
 agent to  the PRPs or direct  EPA's contractors.

      Where EPA  has  the  lead  for oversight, EPA encourages  the State
 to  conduct oversight tasks only if they have the  inhouse capability
 to  do the work.  Generally,  EPA will not fund  the State to hire
 contractors  for oversight'tasks unless  they  provide adequate justi-
 fication  for their  use.  Furthermore, EPA  will not  fund States  to
 conduct oversight tasks  that duplicate  EPA's efforts.

 3.    Cooperative Agreement Application  Procedures
i
      States  must follow  established  procedures for  developing CA
 applications encompassing  oversight  of  PRPs.  The State has  primary
 responsibility  for  developing a CA application package, but  should
 consult with EPA's  RPM  for the  site  throughout the  process.

      In general, the key elements of a  CA  application  package are:
                         
      0 Intergovernmental Review;

      0 EPA Form 5700-33, Application For Federal  Assistance,  and
       accompanying support  narrative and  assurances;

      0 EPA Form 5700-48, Procurement System'Checklist; and

      0 State Certification Letter.

      A comprehensive discussion of CA or multi-site CA (MSCA)
 applications for Superfund activities  is presented  in  Volume I
 of  the manual State Participation in the Superfund  Program.   As
 experience is gained in  funding PRP  oversight, procedures  for
 developing CA applications will be revised in  the future.

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                              -11-                         9831.1-1A
      The project period for PRP oversight is one year.  States
 can request, in a CERCLA CA application, only enough money to
 conduct the necessary tasks for twelve months.  If additional
 funds are needed to continue the tasks, the State should submit
 to EPA a request for a CA amendment at the end of this twelve
 month period approaches.

 4.   Preparation of State Quarterly Reports

      States are required to submit quarterly reports that provide
 EPA with information on the progress of the funded tasks.  These
 reports serve many important purposes, including:

      0 Providing site-specific tracking data as required under
        CERCLA;

      0 Providing data for future use during cost recovery; and

      0 Providing information to assist the State and EPA in
        managing CAs.

      States are required to report or document costs associated
 with the CA on a site-specific basis.  Expenditures must be
 tracked and reported by object class category, as required under
 the General Assistance regulation for CAs.  In addition, personnel
 hours must be tracked and reported on a site-specific basis.  For
 further information on accounting codes and cost documentation, see
 the appropriate appendices in Volume I of the manual State Partic-
. ipation in the Superfund Program.

      States will submit quarterly reports to the RPM within thirty
 days of the end of each Federal fiscal quarter.  In general, the
 quarterly reports must cover the following:

      0 Itemization of expenditures by object class;
                         
      0 Estimation (percentage) of work completed for each task
        covered in the CA;

      0 Summary of personnel hours spent at each site;

      0 Disposition of sites where all tasks have been completed
        and accepted/approved by the RPM; and

      0 Explanation of variances from the SOW in estimated costs,
        personnel hours and/or tasks being initiated).

      A narrative explanation must also be provided discussing
 actions initiated or completed, problems or delays encountered
 and actions planned during the next reporting period.  The State
 must also provide explanations for revisions to the original
 schedules or time tables established in the CA.  As experience
 is gained in funding PRP oversight, reporting requirements
 for these particular activities will be revised in the future.

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                             -12-                         9831.1-1A
schedules or time tables established in the CA.   As experience
is gained in funding PRP oversight, reporting requirements
for these particular activities will be revised  in the future.

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                                                                   9831.1-lj
                     ENFORCEMENT PROVISIONS
                   CERCLA COOPERATIVE AGREEMENTS

      PROVISIONS SPECIFIC TO STATE-LEAD ENFORCEMENT OVERSIGHT
              OF. POTENTIALLY RESPONSIBLE PARTIES (PRP)

      State-lead enforcement oversight Cooperative Agreements should
 contain the provisions found in Sections 1 (ArF) and 2 (C, E, G-L,
 N-S)  of Appendix F, State Participation in the Superfund Program.
 In addition, they should also contain the following provisions.

 A.   Issuing an Enforceable Order/ Decree or other Enforceable
      Document

      Before EPA funds oversight, the State is required to issue
 an enforceable order, decree or other enforceable document that
 requires the PRP to conduct a RI/FS and/or RD/RA/O&M in accordance
 with  the NCP and applicable EPA guidance.  A copy of this document
 must  be included in the cooperative agreement application.

      The State issued a  [type of enforceable document] for the
      [name of site] dated  [	], requiring a  [type of response
      action] in accordance with the NCP and applicable EPA guidance
      A copy of this document is attached to the cooperative agree-
      ment application.*

 B.   State Enforcement Authorities

      In providing CERCLA funds for State-lead oversight of
 PRPs,  the State has shown it possesses the legal authorities
 to pursue administrative or judicial enforcement action to
 ensure performance of the response action.  EPA asks the State
 to outline these authorities in the Cooperative Agreement
 application.

      The State possesses the legal authorities to pursue
      administrative or judicial enforcement action to ensure
      performance of the private party response action.  The
      State agrees to use these authorities if private parties
      (1) do not meet the terms of the order, decree or other
      enforceable document, or (2) are unwilling to undertake
      subsequent phases of the response action.  These legal
      authorities are outlined in a letter attached to the
      Cooperative Agreement application dated  [	].

 C.   Ability of PRPs to Undertake or Pay Cost of the Response
      Action

      In settling with PRPs to undertake the response action,
 the State believes that  (1) a good enforcement case exists against
      * If a three party agreement (EPA, State and PRP), then add
 "and EPA" after "The State" and only cite the enforceable document
 since a copy should already be in EPA's possession.

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                               -2-
                                                                   9831.1-li-

the PRPs (i.e., financially able to undertake or pay the cost of
the response action), and (2) site conditions meet the elements
of proof required by the State's legal authorities (i.e., imminent
and substantial endangerment) .

     For RI/FS oversight:

     The State believes that (1) a good enforcement case exists
     against the private parties (i.e., financially able to
     undertake or pay the cost" of the response action) and (2)
     site conditions meet the elements of proof required by the
     State's legal authorities at the onset of the RI/FS (i.e.,
     imminent and substantial endangerment).  If these factors
     continue to exist at the completion of the RI/FS, the State
     agrees to pursue administrative or judicial enforcement
     action to (1) assure performance of the RD/RA/O&M by the
     private parties, or (2) collect from the private parties
     the funds necessary to conduct the RD/RA/O&M.

     For RD/RA/O&M oversight:

     The State believes that (1) a good enforcement case exists
     against the private parties (i.e., financially able to
     undertake or pay for the cost of the response action),
     and (2) site conditions meet the elements of proof required
     by the State's legal authorities at the onset of the
     RD/RA/O&M (i.e., imminent and substantial endangerment).

D.   Consistency with Agency Policy and Guidance

  '   In overseeing PRP conduct of response actions, the State
must assure that such actions are consistent with the NCP and
applicable EPA guidance.

     For RI/FS oversight;

     In conducting RI/FS oversight funded by this Cooperative
     Agreement, the State'agrees to ensure that the private
     party RI/FS be consistent with the National Contingency
     Plan as published on November 20, 1985 (40 CFR 300) and
     the manuals Guidance on Remedial Investigations Under CERCLA
     and Guidance on Feasibility Studies Under CERCLA, OERR,
     June, 1985.

     For RD/RA/O&M oversight;

     In conducting RD/RA/O&M oversight funded by this cooperative
     agreement, the State agrees to ensure that the private party
     RD/RA/O&M be consistent with the National Contingency Plan
     as published on November 20, 1985 (40 CFR 300) and the manual
     Superfund Remedial Design and Remedial Action Guidance, OERR,
     June, 1986.

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                               _3_                                9831.1-U
E.   Deliverables Required for EPA Review and Concurrence Prior
     to Initiating Oversight Field Activities

     EPA must review and concur on appropriate work plans prior
to a State initiating oversight.  The State must also agree to
submit all final plans, reports, specifications and/or recommen-
dations to EPA for review and concurrence prior to issuance
and implementation.

     For RI/FS oversight:

     The State agrees to submit the private party RI/FS work
     plan to EPA for review and concurrence.  The State agrees
     not to expend funds for oversight of the private party
     RI/FS field activities until EPA has indicated in writing
     that this provision has been satisfied.  The State also
     agrees to submit all final plans, reports, specifications,
     and/or recommendations to EPA for review and concurrence
     prior to issuance or implementation.  Final private party
     documents or plans and private party change orders that
     substantially change the scope of of work funded under this
     Agreement will be submitted to EPA prior to issuance for
     review to ensure technical adequacy and compliance with the
     terms of this Agreement.*

     For RD/RA/O&M oversight;

     The State agrees to submit the private party [RD, RA and/or
     O&M] work plan to EPA for review and concurrence.  The
     State agrees not to expend funds for oversight of the private
     party [RD, RA and/or O&M] field activities until EPA has
     indicated in writing that this provision has been satisfied.
     The State also agrees to submit all final plans, reports,
     specifications, and/or recommendations to EPA for review
     and concurrence prior to issuance or implementation.  Final
     private party documents or plans and private party change
     orders that substanfially change the scope of of work funded
     under this Agreement will be submitted to EPA prior to issuance
     for review to ensure technical adequacy and compliance with
     the terms of this Agreement.*

F.   Community Relations

     The State agrees to prepare and implement a community relations
     plan for this site.  The State will not initiate oversight
     field activities until EPA has approved the plan.  The State
     further agrees to comply with all relevant EPA policy and
     guidance on community relations when implementing the community
     relations plan throughout the response, especially Chapter 6,
     Community Relations in Superfund; A Handbook.
     * If the work plans were prepared and submitted concurrent
with the enforceable document, they should be submitted for review
with the Cooperative Agreement application.

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                               -4-
9831.1 -I
;.    Securing  Oversight Funds from Private Parties

     During  negotiations with PRPs to conduct the response action,
:he  State  should  attempt to secure funds for oversight.  The State
3tate must attempt  to have  PRPs pay for oversight before requesting
^ERLCA  funding. '  EPA asks the State to certify that an attempt
/as  made,  and  ci'te  the reasons why PRP funding of their oversight
    not possible.

     The State attempted to "secure funds for oversight of the
     response  action from the private parties. [Cite reasons why
     this  was  not possible  or why additional oversight funding
     is required.]

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                                                                  9831.1-1A
                 PROCEDURES FOR REVIEW AND APPROVAL
            OF ENFORCEMENT-RELATED COOPERATIVE AGREEMENTS

1 .   PROCEDURE FOR REQUESTING FUNDS AND REVISING THE CASE MANAGEMENT
    BUDGET - DRAFT COOPERATIVE AGREEMENT APPLICATION

    0 The Region" should request cooperative agreement funds during
      September for the following fiscal year, represented as SCAP
      targets.  The SCAP shoul.el be revised quafterly, if necessary.
      The Region should consult with the State prior to revising
      the SCAP.

    0 The State Project Officer, assisted by an EPA Regional Office
      counterpart, will develop a cooperative agreement application
      and submit it to the Enforcement Remedial Project Manager (RPM)

    0 The Regional Coordinator (RC) in the Compliance Branch will
      review the draft application in coordination with the Contracts
      Management Section in the CERCLA Enforcement Division.

    0 The RC will send their comments on the application to the RPM.
      The Region should give the State combined EPA comments (HQ
      and Region)., The State will then prepare a final application
      for submittal to the Regional Administrator.

2 .   REGIONAL SUBMITTAL AND HEADQUARTERS SIGN-OFF - FINAL COOPERATIVE
    AGREEMENT APPLICATION

    0 The RC will receive a copy of the final cooperative agreement
. '    application, which will have a commitment notice attached.
      The dollar amount for award, cooperative agreement number
      and description should already be entered on the commitment
      notice.
    0
      The RC will review the final application and get the commitment
      notice signed by the appropriate Headquarters managers.  For
      CA's of $250K or les^, the Director, Office of Waste Programs
      Enforcement's signature is required.  For CA's of over $250K,
      the AA, Office of Solid Waste and Emergency Response's signature
      is required.

    0 Once signatures have been obtained, the RC will obtain the
      proper accounting information from OWPE ' s Program Management
      and Support Office (PMSO) .

    0 Once signatures are obtained and accounting information has
      been entered on the commitment notice, the RC will send only
      the commitment notice back to the Region for use in awarding
      the CA.  Delegation has given CA award authority to the RA.
      (The RC will keep the copy of the CA application and a xeroxed
      copy of the commitment notice on file for oversight purposes.
      The Compliance Branch will maintain files for these CAs.)  The
      RPM will send a signed copy of the CA document be sent to RC
      after award and acceptance by the State.

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