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
-------
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
-------
&EPA
Unned States Environmental Protect- jency
Washington. DC 20460'
OSWER Directive Initiation Request
Interim Directive Numb«r
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
L£l 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 .
i»a-«ea
Final
O New
l£zJ 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)
-------
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.
-------
-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
-------
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.
-------
-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
-------
-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.
-------
-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
-------
-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.
-------
-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.
-------
-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.
-------
-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.
-------
-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.
-------
-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.
-------
-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.
-------
-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.
-------
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.
-------
-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.
-------
_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.
-------
-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.]
-------
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.
------- |