oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9831.9 TITLE: Questions arid Answers About the State Role in Remedy Selection at Non-Fund-Financed State-Lead Enforcement Sites .. APPROVAL DATE:-April is, 1991 EFFECTIVE DATE: Immediately ORIGINATING OFFICE: OWPE EFFINAL Q DRAFT LEVEL OF DRAFT Q"A — 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 SlateatnvlroflmenUlProteciion Agency —••— '••"• ' Washington, DC 20440 OSWER Directive Initiation Request 1. Directive Numtxr 9831.9 2. Originator Information Name of Contact Penon Lynda PrLddy Mail Coda .03^510 Office OWPE Telephone Cod* 3. TiUe . .. • • Question;; and Answers About the State Role in Remedy Selection at Non-Fund-Financed State-Lead Enforcement Sites t. Summary of Directive {indude brief statement o( purpose) Describes circumstances under which States may select a nd implement a remedy at NPL sites without first obtaining EPA concurrence. . ' 5. Key-voces KCP; Remedy Selection; NPL sites; State Role; ROD 5». Does Thit Dux-cuve Superstd* Previous Oir«cUve(3j? .-: b. Ooei tt Supplement Previous No No Yts Whit dir«ctivi (numbtr. We) Yts What dirict^c (number, ttfr) 7. Draft Hv«i X A-SlgnnlbyAA'OAA B - Signed by Offic« Dlrtctor C - For R«vl«w & Comment 0 - Ifi 8. Dccument to be distributed to States by Headquarters? *•!. . YM X No Tnls Request M« its OSWER Directives System Format Standards. 9. Signature of Lead Office Directives Coordinator 10. Name and ThJe o< Approving OrficiaJ Date Date v Ef A Form 131S-J7 (R«v. S-17) Previous editions a/e obsolete,- OSWER OSWER OSWER O VE DIRECTIVE DIRECTIVE DIRECTIVE ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OSWER Directive // 9831.9 APR I 8 1991 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Questions and Answers About the State Role in Remedy Selection at Non-Fund-Financed Enforcement «*'«-•»'-- R. Clay, Assistant Administr, Regional Administrator Regions I - X / I. PURPOSE This memorandum1 describes circumstances under which States may select and implement a remedy at National Priorities List (NPL) sites without first obtaining EPA concurrence. Section 300.515(e) of the National Contingency Plan (NCP), State involvement in selection of remedy, specifically addresses the State role in remedy selection. The NCP provides that a State may select a remedy (and publish the proposed plan) without EPA concurrence at non-Fund-financed State-lead enforcement NPL sites. This directive defines "non-Fund-financed" in terms of State-lead enforcement NPL sites2. Additionally, this directive explains when a State must obtain EPA concurrence on a CERCLA remedy at an NPL site. Certain States have requested guidance regarding the situations under which a State may select and implement a remedy without EPA concurrence. Generally, States and EPA Regions are knowledgeable about the reciprocal concurrence process for Fund- financed NPL sites, where EPA and States have corresponding roles in recommending and implementing remedies. However, there generally appears to be less awareness of situations where a State may select and implement a remedy without EPA concurrence. 1/ The policies set out in this memorandum are not final agency action, but are intended solely as guidance. They are not intended, nor can they be relied upon, to create any rights enforceable, by any party in litigation with the United States. The Agency reserves the right to change this guidance at any time without public notice. 2/ Enforcement sites are sites where responsible parties are compelled, by order or decree, to perform response actions. Primed on Recycled Paper ------- OSWER Directive # 9831.9 This; memorandum explains certain sections of the NCP that are pertinent: to the State role in remedy selection. Regional staff may help resolve questions about remedy selection requirements by discussing information in this memorandum with appropriate State staff. Open and direct communication between the Regional and State offices on topics such as this greatly benefits the EPA/State relationship and ultimately the success of site cleanups. II. BACKGROUND Subpart F of the NCP (40 CFR 300.500 et seq.) discusses requirements for State participation and involvement in CERCLA- authorized response actions. It also includes the minimum requirements for ensuring that all States are provided an opportunity for "substantial and meaningful" involvement in the initiation, development, and selection of remedial actions, as mandated by CERCLA 121(f)(l). As discussed in the preamble to the NCP (55 FR 8783, March 8, 1990), EPA believes that to ensure consistency among remedies implemented at sites, EPA retains final responsibility for remedy selection at sites where Fund money or EPA enforcement authority is used. However, to provide a "significant and meaningful role for State involvement in the cleanup process," EPA adopted in the NCP the reciprocal concurrence process for Fund-financed NPL sites. In this process, a State prepares a ROD and must obtain EPA concurrence and adoption of the remedy, or EPA prepares the ROD and seeks State concurrence. However, for non-Fund-financed State-lead enforcement sites, when a State proceeds under its own enforcement authority and sources of funding other than the CERCLA Trust Fund3, a State itiay select a remedy (and publish a proposed plan) without EPA concurrence. Section 300.515(e)(2) of the NCP specifically addresses EPA and State involvement in the preparation of a ROD. III. QUESTIONS AND ANSWERS ABOUT THE STATE ROLE IN REMEDY SELECTION QUESTION 1: Under what circumstances can a State select a remedy without EPA concurrence at an NPL site? ANSWER: States may select the remedy (and publish a proposed plan) , without EPA concurrence, at NPL sites when the State has been assigned the lead role for response action at the site, the State is taking an enforcement action acting under State law, and the State is not receiving funds from the Trust Fund for response activities at the site. According to the NCP, "response as defined / Trust Fund means the Hazardous Substance Superfund established by section 9507 of the Internal Revenue Code of 1986. ------- OSWER Directive # 9831.9 by 101(25) of CERCLA, means remove, removal, remedy, or remedial action, including enforcement activities related thereto." The diagram in Attachment I summarizes the circumstances under which a State may select a remedy without EPA concurrence. These sites are referred to as "non-Fund-financed State-lead enforcement sites." QUESTION 2: When may a State proceed under its own enforcement authority at an NPL site? i ANSWER: During annual EPA/State consultations, EPA may agree to designate a State the lead at an NPL site for a non-Fund-financed enforcement action. This means that EPA and the State agree that response actions will be conducted pursuant to State law and funded by PRPs and, if necessary (for enforcement activities) , by the State itself. More specifically, 300.505(d)(3) states "(i)f a State is designated as the lead agency for a non-Fund-financed action at an NPL site, the Superfund Memorandum of Agreement shall be supplemented by site-specific enforcement agreements between. EPA and the State which specify schedules and EPA involvement." EPA may take back the lead from a State if the State does not comply with the EPA/State agreement. Where EPA and a State do not agree that a site is a non-Fund- financed State-lead site, the State may still attempt to proceed with response actions under its own authority without funding from the Trust Fund. However, there is a potential for conflict with EPA response actions where no lead designation has been made, especially at NPL sites. Further, EPA is not bound by State response actions and may decide to take a CERCLA response action after the State has acted. Additionally, under CERCLA 122(e)(6), once a Federally-approved RI/FS has been initiated at a site, no PRP may undertake any remedial action at the site unless the remedial action has been authorized by EPA. Thus, State-ordered PRP remedial actions may not proceed post-Federally-approved RI/FS without EPA authorization. If EPA decided to designate a State as lead for post-RI/FS remedial actions, the lead designation may include a CERCLA 122(e)(6) authorization for PRPs to proceed with remedial action at the site as prescribed by the lead agency. QUESTION 3: For a State enforcement-lead NPL site to be "non-Fund- financed" does it mean that EPA has not spent Trust Fund money at the site? ANSWER: No. There are probably few, if any, NPL sites where EPA has not spent Trust Fund money. For example, EPA has probably funded, through the Trust Fund, PA/SIs at NPL sites. Previous EPA funding at a site, regardless of the amount, does not determine whether a site is "non-Fund-financed." ------- OSWER Directive # 9831.9 QUESTION 4: For a State enforcement-lead NPL site to be "non-Fund- financed," does it mean that there will be no future EPA funding through the Trust Fund at the site? ANSWER: Yes. If an NPL site is "non-Fund-f inanced," EPA has no plans or expectations of providing funds via the Trust Fund for site-specific enforcement actions and other response actions (i.e., cooperative agreement money) to the State. The term "non-Fund- financed" as it pertains to State enforcement-lead sites and State remedy selection refers to site-specific money. Receipt of Core Program money, which is for non-site-specific activities (e.g., training), does not preclude the site from being "non-Fund- financed." All non-site-specific activities that are necessary to support a State's Superfund program are eligible for Core Program money. QUESTION 5: How is a site designated as a State enforcement-lead NPL site by EPA? ANSWER: EPA, during annual consultations with the States, may designate a State as enforcement-lead if the Agency deems it appropriate (and if the State agrees). However, a State may not designate itself as lead agency at an NPL site without EPA approval. In considering whether a site should be designated as a State- lead enforcement site, EPA will take into account whether EPA has invested substantial resources at the site beyond the PA/SI and listing process (e.g., whether EPA has completed the RI/FS). Significant investment of EPA resources at a site may argue against reassigning a lead designation from EPA to a State. EPA plans to develop detailed guidance to assist Regions in determining when a State may be enforcement-lead. QUESTIOF 6: May the State select the remedy without EPA concurrence at Fund-financed State-lead sites (where the Trust Fund is payir.g for response actions) ? ANSWER: No. Remedies selected (and proposed plans drafted) by a State at a Fund-financed site (e.g., where the Trust Fund is paying for enforcement support or other response actions) must be approved and adopted by EPA before the remedy can be implemented (or the proposed plan can be published). Similarly, EPA must obtain State assurances under 104 before EPA can proceed with a Fund-financed remedy. IV. CONCLUSION Th«;re are circumstances where the State may select a remedy (and publish the proposed plan) without EPA concurrence. In some ------- OSWER Directive # 9831.9 situations, the State may be acting independently of EPA. However, when one governmental entity (EPA or State) acts independently of the other, conflicts can arise which adversely affect the quality and timing of response actions at a site. In addition, without EPA/State coordination and cooperation at a site, unnecessary conflict and duplication of effort may occur. Therefore, pursuant to § 300.505(d)(1) of the NCP, EPA and States should meet in the aarly stages of response actions at a site to determine site priorities and make lead and support agency designations. If you have questions regarding this directive, please contact Lynda Priddy of the Office of Waste Programs Enforcement at FTS (202) 475-8727 or mail code OS-510. \ttachment sc: Directors, Waste Management Division Regions I, IV, V, VII Directors, Hazardous Waste Management Division Regions III, VI, VIII, IX Director, Emergency and Remedial Response Division Region II Director, Hazardous Waste Division Region X CERCLA Enforcement Branch Chiefs, Regions I - X CERCLA Enforcement Section Chiefs, Regions I - X Regional Counsels, Regions I - X ------- Attachment 1 OSWER Directive -V 9831.9 State Selection of Remedy at NPL Sites -Will 'site-specific" Superfund money be spent at the site? No State designated lead (with PRPs sauthorized to proceec under State .order)?. Yes Yes No EPA selects remedy or must approve the state recommendation. State may select a remedy under State law, but a potential conflict with an EPA remedy exists (especially at NPL sites); further, if section 122(e)(6) applies, PRP may not undertake remediation without EPA authorization. State may select remedy, under State law, without EPA concurrence. ------- |