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

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                           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?
*•!. .


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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

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         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

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                                        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.

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                                        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."

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                                        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

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                                        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

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                                                                 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.

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