UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 2 I 1987
SCLID.-.VASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Interim Guidance jon State Participation In Pre-Remedlal
and Rerae/UaT Response
i V/Wyi
jf./Winston^
Assistant Administrator
FROM
TO
Regional Administrator, Region I - X
.Regional Counsel, Regions.I - X
Director, Haste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Region IITand VI
Director, Toxics and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, and VII
Regional Assistance Management Contacts, Regions I - X
Regional Financial Management Office, Regions I - X
On October 24, 1986, you received the Implementation Strategy
for Reauthorized Superfund which included transition guidance for
short term priorities. OSWER Is now developing interim guidance
to assist the Regions in the Implementation of reauthorization
during the period when regulations are being developed and promul-
gated and official guidance documents are being revised. This
memo transmits Information on State participation in pre-remedial
and remedial response. Removal and enforcement guidance will
be Issued separately.
During this Interim period as policy decisions are being
.ade, many issues may still require case-by-case determinations.
Questions on the attached guidance should be directed to Jan Wine
or Betty Winter on (FTS) 382-2443 or to the appropriate Regional
coordinator in Headquarters.
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9375.1=-09
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Attachment
cc: Administrator
Deputy Administrator
Associate Administrator for
International Activities
Associate Administrator for
Regional Operations
Assistant Administrator for
Administration and Resources Management
.Assistant Administrator for
Enforcement and Compliance Monitoring
General Counsel
Assistant Administrator for
Policy, Planning and Evaluation
Assistant Administrator for
External Affairs
Inspector General
Assistant Administrator for
Air and Radiation
Assistant Administrator for
Pesticide and Toxic Substances
Assistant Administrator for
Research and Development
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9375.1-09
CERCLA REAUTHORIZATION INTERIM GUIDANCE
ON STATE PARTICIPATION IN
PRE-REMEDIAL AND REMEDIAL RESPONSE
I. SCOPE OF GUIDANCE
This guidance specifically addresses State participation
In pre-remedlal and remedial response actions affected by the
Superfund Amendments and Reauthorlzation Act (SARA), which
amended the Comprehensive Environmental Response and Compensa-
tion Liability Act (CERCLA). The guidance is effective immediately,
and supplements the Implementation Strategy for Reauthorized
Superfund which was dated October 24, 1986. This guidance is
applicable during the interim period prior to the promulgation
of regulations and the revision of official guidance documents
to Implement SARA. This guidance is subject to change as the
regulations are made final, and as revisions to the official
guidance documents are completed.
This guidance 1s organized as follows:
I. Scope of Guidance
II. State Cost Share Requirements
A. Advance Match Policy
1. Advance Match Policy Prior to SARA Enactment
2. Advance Match Policy After SARA Enactment
3. Reimbursement to States for Advance Match
B. Cost Share for Publicly Operated Facilities
1. Cost Share Requirements Prior to Enactment of SARA
2. Cost Share Requirements After Enactment of SARA
C. State Credit Provisions
1. CERCLA Credits for 1978-1980 Response Activities
2. Credit for 1980-1986 Response Activities
3. Post-SARA Credit Opportunities
4.. Additional SARA Credit Requirements
III. Other Stat-> Assurance Requirements
A. Operation and Maintenance (O&M)
1. Current Requirements/Guidance
2. Ground and Surface Water Restoration
B.
C.
D.
Off-site Disposal
Access and Acquisition of Property
Twenty-Year Waste Capacity
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9375.1-
IV. Cooperative Agreement Requirements
A. Statutory 90-Day Review of Cooperative Agreement (CA)
Application
B. CAs with Indian Tribes
C. Eligible Funding Activities Under SARA
V. Pre-Remedial Requirements
A. CAs for Pre-Remedial Activities
B. Citizen Petitions for Preliminary Assessments (PAs)
VI. SARA State Involvement Requirements
A. Status of Regulations
.B. Interim Guidance for State Involvement
VII. Contract Requirements
A. Minority Contracting Reporting Requirements
B. Conflict of Interest Requirements
C. Contractor Indemnification Requirements
II. STATE COST SHARE REQUIREMENTS
A. Advance Match Policy
1. Advance Match Policy Prior to SARA Enactment
Prior to the enactment of the Superfund Amendments and
Reauthorization Act (SARA), the Agency's advance match policy
gave States an opportunity to meet their required cost share for
remedial action by permitting States to contribute funds during
remedial planning at a National Priority List (NPL) site. States
could request reimbursement for any unused or excess advance
match at the conclusion of remedial action.
CAs and Superfund State Contracts (SSCs) covering such
situations contained language similar to the following:
Funds for remedial planning activities at [site], provided
by the State in this agreement, are not required for matching
purposes. They may be applied toward the State's required
cost share for any subsequent fund-financed projects at
[sltej. Expenditure of these funds, however, does not
ensure that fund-financed remedial actiivs will be implemen-
ted at this site. The State may reques' reimbursement of
these expenditures should they not be required to meet the
State's ultimate cost-sharing obligation at the site.
Reimbursement by the Environmental Protection Agency (EPA)
is subject to the availability of appropriated funds and,
if costs were incurred under a cooperative agreement, veri-
fication of the allowability of State's expenditures.
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9375.1-09
2. Advance Match Policy After SARA Enactment
SARA does not authorize States to advance match on remedial
planning activities. Rather, It limits advance match to remedial
action expenditures only, for credits. Therefore, EPA has discon-
tinued the advance match policy.
Advance match provided before September 30, 1985, in
accordance with a CA or SSC are not subject to change. However,
agreements consumated after September 30, 1985, are affected
by Section 104(d)(l)(C) of CERCLA, as amended, by SARA. Section
104(d)(l)(C) allows States to be reimbursed for advance match
contributions made from September 30, 1985 to October 17, 1986.
3. Reimbursement to States for Advance Hatch
Section 104(d)(l)(C) of CERCLA, as amended by SARA, authorizes
EPA to reimburse a State for the share of costs for which EPA
would be responsible If the State expended these funds subject
to a CA during the period beginning September 30, 1985,
and ending on October 17, 1986.
We believe Congress intended reimbursement to be available
regardless of the type of Section 104(d)(l) agreement used to
undertake a response action at an NPL site. Therefore, since
EPA permitted States to advance match on both State and Federal
lead remedial planning projects, therefore EPA will reimburse
States that contributed cash pursuant to a SSC.
Reimbursements are subject to the availability of appro-
priated funds. For cooperative agreements, costs must be
verified by audit. Regions should identify the States that want
reimbursement and should include reimbursements on the Superfund
Comprehensive Accomplishment Plan (SCAP) as appropriate.
For reimbursements on State-lead actions, advance match
CAs should be amended as soon as funds become available. The
following language, or Its equivalent, may be used in amendments
to these CAs:
Pursuant to §104(d)(1)(C) of CERCLA, as amended, the
State of has requested reimbursement of $
of State funds expended for respin-e actions at (site,
These ac it is were taken dur1n«, the period beginning
September 30, 1985 and ending on October 17, 1986,
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9375.1-Q9
pursuant to cooperative agreement # . The State
has requested reimbursement of the Federal share of the
costs Incurred by the State at this site. Verification
of the alloy/ability of expenditures will be done by
audit and, If necessary, the letter of credit will be
adjusted.
Reimbursement or cash advance matches tor Federal-lead
actions will be accomplished by amending the SSC using language
similar to the preceding paragraph. This will create an
obligation for the Agency, and with proper agency approvals, your
financial management office will Initiate preparation ot a check
for reimbursement to the State.
If a State does not seek reimbursement, advance match will
be used to off-set the State's required cost share for remedial
action at the site. In this case, advance match may not be used
for credit at any other site nor reimbursed until fund-financed
remedial response activities have been concluded.
State advance match is tracked in the Financial Management
System (FMS). Adjustments to the balance (either reimbursement
or use as cost share) is presently handled in the Headquarter's
Financial Management Division. This responsibility will eventually
be transferred to Regional Financial Management Officers.
B. Cost Share for Publicly Operated Facilities
1. Cost Share Requirements Prior to Enactment of SARA
Section 104(c)(3) of CERCLA requires States to share in the
cost of Fund-financed remedial actions performed at sites on the
NPL. Prior to the enactment of SARA, the percentage of a State's
cost share depended on the ownership of the site at the time of
the hazardous substance disposal. At privately owned sites,
the State was required to pay only 10 percent of remedial action
costs. At publicly owned sites (those owned by a State or political
subdivision thereof), the State was required to fund at least
50 percent of all response costs. This included all removals,
remedial planning, remedial action and that phase of the remedial
action necessary to ensure that remedy was operational and func-
tional. A State was not required to pay its share of removal
and remedial planning costs at a publicly owned site until a
Fund-financed remedial acf\n was undertaken there. State
cost shares could be in th form of cash and/or services.
2. Cost Share Requirements After Enactment of SARA
Under section 104(c)(3) of CERCLA, as amended, States are
required to cost share a minimum of 50 percent of all response
costs at any tacility operated by a State or political'subdivision
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9375.1-09
thereof at the time ot disposal of hazardous substances at the
facility. Section 104(d)(l) of CERCLA, as amended by SARA, defines
response to include enforcement activities. Enforcement activities
that require a cost share are discussed below under State credit
provisions.
SAKA changes the criteria for the 50 percent cost share from
ownership to operation. States will be required to fund 50
percent of any removals taken at publicly operated facilities at
which remedial action is also taken. A State is also still
required to pay its share of remedial planning costs at a publicly
operated site when a Fund-financed remedial action is undertaken
therei The 10 percent State cost share requirement for remedial
action costs still applies to privately owned sites and, since
the enactment of SAKA, it applies to those sites which were
publicly owned, but not operated, at the time of disposal of
^hazardous substances at those sites. State cost shares can still
be in the form of cash and/or services. From the date of SARA
enactment forward, all new CAs and SSCs must contain these new
cost share requirements.
C. State Credit Provisions
The credit provisions contained in SAKA are complex. Each
provision and implementation activities are contained in Exhibit I
and discussed below.
1. CERCLA Credits for 1978-1980 Response Activities
Before the amendments, CERCLA Section 104(c)(3)(C) allowed
a State to off-set its cost share with a credit for site-specific
expenses associated with response taken by it or a political
subdivision at an NKL site between 1978-1980. SAKA has kept
this provision intact with one modification that is also applicable
to all new credit provisions of section 104(c)(5)(F) of the new
amendments. That is, SARA permits excess credits earned between
19/8-198U at one site to be used by the State to off-set its
cost share at another site. Any State still wishing to receive
credit for 1978-80 expenditures should submit an accounting of
its eligible costs as soon as possible, but no later than the
time when all assurances are required.
Current guidance (contained in the manual State Parti^pa-
tion in the Superfund Program) on the Sj^nnssion of credi t "^ei iod
costs will remain in effect. That guic'ince includes the following
requi rements:
0 States must identify the specific amount being claimed
for credit. Estimated amounts are not acceptable.
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Exhibit I
SUMMARY OF SUPERFUND CREDIT PROVISIONS
9375.1-09
CERCLA 1978-1980 Credit Provisions
State or political subdivision
expenditures or obligations from
1978-1980 for response actions at
an NPL site may be used by the
State to off set its cost share
at that site.
Expenditures/obligation must be
documented, direct, out-of-pocket
non-Federal funds.
Credit is limited to cost eligible
response actions and claims for
damage compensable under §111.
Credit granted may not exceed
total response costs relating
to the release.
SARA 1978-1980 Credit Provisions
State or political subdivision
expenditures or obligations at
an NPL site from 1978-1980 for
cost-eligible response actions
and claims compensable under
§111 may be used by the State
to off-set its cost share.
The President may require item-
by- item approval of each
expenditure as a condition for
granting credit [§104(c)(5)(E)].
Excess credit may be used to
reduce a State's required cost-
share for remedial action at
another site [§104(c)(5)(F)].
A State 1s not entitled to any
direct payment of excess credit
[§104(c)(5)(F)J.
Implementation from the Date of
Reauthorization (10-17*86) forward
0 Credit summary must be provided
by State before CERCLA fund-financed
remedial action begins
0 Credit 1s entered and tracked by
FMD
- Unverified credit tracked until
IG verifies by audit
- Verified credit 1s entered and
tracked by FMD
0 CA/SSC required before credit
earned at a site can be used
at that site to off-set cost share
0 Excess credit earned at one site
may be used to off set State's
required cost share at another
site when:
- Cost estimates in ROD for that
site and/or final bid price
for the remedial action indicate
at least 50% of credit earned at
the site will remain as excess,
- A consent decree has been entered
in court to clean up the site
or to fund the entire remedial
action, or
- A no action alternative is
selected
0 Excess credit will not be
reimbursed.
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CERCLA 1980-1986 Credit Provisions
0 No post-CERCLA credits allowed
0 States required to share (50/50)
In the cost of any response under-
taken at a site owned by the State
or political subdivision.
SARA 1980-1986 Credit Provisions
0 If State shared 50/50 in the .
cost of response at a site
publicly owned but not .operated
by the State or a political sub-
division, then the State may
receive a credit for expenses
Incurred 1n excess of 10%.
0 Credit opportunity Is limited
to State expenses Incurred
pursuant to a cooperative
agreement or contract in effect
during 1980-1986.
.° Credit applicable to expenses
incurred for all phases of
response.
0 Administrator may require item-
by -Item approval of each
expenditure as a condition of
granting credit [§104(c)(5)(F)J:
- CA provides item-by-item list
of approved expenditures,
- SSC contains dollar value of
cash contributions
0 Excess credit may be applied to
any site [§104(c)(5)(F)].
0 A State 1s not entitled to any
direct payment of excess credit
[§104(c)(5)(F)].
Implementation From the Date of
Reauthorization (10-17-86) foTward
0 State cost share for remedial
action at publicly owned but
not operated sites Is now 10%
L§104(c)(3)(C)J.
0 State must share in the cost
(50/50) for any sums expended
at a site operated by the State
or political subdivision
0 Cost Incurred by State via CA or
SSC in excess of 10% at publicly
owned sites entered as credit In
FMS:
- Unverified credit tracked until
IG verifies by audit
- Verified credit entered and
tracked by FMD
0 Amend CA/SSC at time of remedial
action to apply credit earned at
site to required cost share.
0 Excess credit earned at one site
may be used to off set State's
required cost share at another
site when:
- Cost estimates in ROD for that
site and/or final bid price for
the remedial action indicate
at least 50% of credit earned
at the site will remain as
excess,
- A consent decree has been entered
in court to clean up the site or
to fund the entire remedial
action, or
- A no action alternative is select-
ed.
0 Excess credit will not be reimbursed
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ur iUKtKt-UNU LKLUil KKUV1S10NS
9375.1-09
Post-CERCLA Credit Provisions
0 Not applicable.
Post-SARA Credit Provisions
0 Credit opportunities limited ^
to remedial action only
[§104(c)(5)(A)]:
- State expenses for remedial
action are creditable,
- Political subdivision expenses
for remedial action are not
creditable.
0 State expenses for remedial
action at an NPL site may be
used as credit, if ,[§104(c)(5)
(A)]:
- State remedial action expenses
are incurred pursuant to a
CA/SSC,
- State expenses for remedial
action are reasonable, docu-
mented, direct, out-of-pocket
non-Federal funds
• CA documents costs to be
incurred, or
• SSC contains dollar value
of cash contributions.
0 State expenses for remedial
action at a non-NPL site may
be used as credit, if site is
ultimately listed on NPL, and
if [§104(c)(5)(B)]r
- State enters into CA/SSC to
establish credit
- State expenses for remedial
action are reasonable,
documented, direct out-of-
pocket non-Federal funds
[§104(c)(5)(E)J:
• CA documents costs incurred.
- EPA determines expenses would
have been covered by CA if the
site had been listed at the
time costs were incurred.
Implementation From the Date of
Reauthorization (10-17-86) forward
0 CA/SSC required before State under-
takes remedial action at an NPL site
.- Expenses/cash contributions are
entered and tracked by FMD as
credit
- Unverified credit tracked until
16 verifies by audit
- Verified credit Is entered and
tracked by FMD.
0 CA required to document costs In-
curred by a State at non-NPL site
which Is subsequently listed:
- CA required when site is listed
- EPA conducts technical review of
actions taken to ensure remedial
action was not inconsistent with
NCP
- Cost of eligible activities
entered and tracked by FMD as
credit
- Unverified credit tracked until
IG verifies by audit
- Verified credit is entered and
tracked by FMD.
0 Excess credit earned at one site
may be used to off set State's
required cost share at another site
0 Excess credit will not be reimbursed
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9375.1-Oy
0 States must identify which units of government
(State agency, County, local) incurred the credit
costs where the statute allows credit for costs
incurred by political subdivisions.
0 Costs by governmental unit must be provided by cost
element (i.e., labor, travel, contracts, etc.).
0 A brief description ot the specific function per-
formed by each governmental unit as it pertains
to the CERCLA site must be provided.
0 Each governmental unit must provide a certifi-
cation that the credit period costs have not been
reimbursed or used for matching purposes under any
other federal program or grant. In addition, the
governmental unit's certification must also state
It was not reimbursed for any of its costs by non-
Federal sources [i.e., potentially responsible
parties (PKPs)J. This certification must be signed
by the State's fiscal manager or the State agency's
financial director.
0 States must send requests for verification of
credit to the Regions. The Financial Management
Office in each Region is responsible for entering
the credit in the Financial Management System (FMS),
reporting status of credits to the remedial project
manager (RPM), and ensuring that debits from the credit
are recorded when a credit is used to off-set a State's
cost share requirements.
Section 104(d)(l) °f CERCLA, as amended by SAKA, defines the
term "response" to include enforcement. Therefore, the list of
activities that may be eligible for credit include the following:
0 Conducting PRP searches and issuing notice letters
at NPL sites;
0 Overseeing of PRP conducted response actions;
0 Reporting to public and private party response
actions; and
0 Negotiating and administrating judicial enforcement
actions to encourage or compel PRPs to initiate response
actions at NPL sites.
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9375.1-09
2. Credit for 1980-1986 Response Activities
As discussed above, the previously implemented 50-50 cost
share for publicly-owned, but not operated, facilities changes
to 90-10. Section 104(cj(5}(D) of CERCLA as amended by SARA,
authorizes credit tor 90 percent of State expenditures for all
response costs incurred at facilities owned, but not operated,
by such State or political subdivision thereof from December 11,
1980 to October 17, 1986.
If a State.wants to receive credit toward its cost share
obligations for expenses pursuant to this provision (1) a
CA or SSC must have been in effect prior to October 17, 1986
and (2) State expenditures must have been incurred at a facility
owned, but not operated, by a State or political subdivision
pursuant to the agreement.
It has been EPA's interpretation of ChKCLA that remedial
planning/removal cost shares were not required until the time of
remedial action. So while CAs/SSCs may have been in eftect tor
publicly-owned sites, a preliminary survey by Headquarters indicates
that to date no States have actually contributed funds for
actions at these facilities.
3. Post-SARA Credit Opportunities
a. NPL Credit Opportunities
Section lU4(c)(5)(A) ot CERCLA, as amended, authorizes credits
for remedial actions at NPL sites for documented State costs.
For credits to be applied at an NPL site, a UA will be required
to document expenses before the State incurs costs. A SSC
will be required tor casn contributions at a l-edera I-1 ead NPL
site.
b. Non-NPL or Pre-Agreement Credit Opportunities
Section 104(c)(5)(B) of CERCLA, as amended, authorizes
credits for State expenditures for remedial action at non-NPL
sites prior to listing or prior to a CA or SSC. For credits
to be applied for non-NPL or pre-agreement expenditures, a CA
will subsequently be required to document State expenses and
project activities conducted after October 17, 1986, rather than
a SSC since =» SSC is used by EPA to obt» n a State's cost share
for Federal lea- Fund-financed actions.
The State should consult with EPA on the proposed remedy
for the site after the RI/FS has been completed and a site has
been ranked to determine that it meets NPL listing criteria.
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9375.1-09
After the site has been listed on the final NPL, the State may
enter into a CA with EPA to apply its expenditures for remedial
action as credit toward its cost-share obligations.
Before approving a credit for post-SARA remedial actions for
non-NPL or pre-agreement sites, the Regions will conduct a
technical review of the actions taken to ensure that they were
not Inconsistent with the requirements of CERCLA, as amended, and
the National Contingency Plan (NCP). At a minimum, the State
must demonstrate that:
0 The Investigation of the facility was at least as
broad 1n scope as described in 40 CFR 300.68(d) and
0 A program for worker health and safety was implemented,
as described in 40 CFR 300.38(a);
0 The remedy complies with the cleanup standards under
CERCLA Section 121; that 1s, 1t
protects human health and the environment;
attains compliance with applicable or relevant
and appropriate Federal and State public health
and environmental requirements;
Is cost effective; and
utilizes permanent solutions and alternative
treatment technologies or resource recovery
technologies to the maximum extent practicable.
0 A public comment period prior to selection of the
remedial action was provided, consistent with the
requirements of 40 CFR 300.67(d) and (e);
0 Documentation was collected and maintained to form the
basis for cost recovery, as required by 40 CFR 300.69(a);
and
0 Procedures equivalent to those in.40 CFR Part 30; 40
CFR 300, Subpart F of the revised NCP; and 40 CFR Part
33 were followed if -in^ractors or equipment were
procured for tV rer.-didl action.
A cooperative agreement is required to establish credit
whether the remedial action is completed, underway, or about to
begin at the time the site is listed.
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9375.1-09
4. Additional SARA Credit Requirements
Sections 104(c)(5)(A), (E) and (F) of CERCLA, as amended,
establish specific requirements for granting States credit
toward their cost-share obligations.
Credit under paragraph Section 104(c)(5) of CERCLA, as
amended, is limited to reasonable, documented, direct out-of-pocket
expenditures by States of non-Federal funds. In addition, SARA
strengthens EPA's policy of requiring item-by-item approval of
expenditures as a condition of granting credit under section
104(c)(5) of CERCLA. EPA will require prior approval before
a State expends funds at a site as a further condition of granting
credit at NPL sites. EPA does not plan to require prior approval
of expenditures at non-NPL sites or prior to an agreement with
EPA. Credits at NPL sites subject to Section 104(c)(5)(A)
of CbRCLA requires States to enter into a CA prior to expending
funds at a site if States wish to receive credit for remedial
action expenditures.
With the enactment of SARA, excess credit from one site may
now be applied to the State's required cost-share at any other
NPL site in the State. Generally, excess credit earned at one
site may be used to off set the State's required cost share at
another site when:
0 The cost estimates in the Record of Decision (ROD) and/or
final bid price for the remedy indicate at least 50
percent of the credit will remain as excess credit at
the completion of the remedy; or
0 A consent decree has been entered in court to clean up
the site completely or to fund the entire remedial
action; or
0 A no action alternative is selected.
CERCLA, as amended, also stipulates that a State is not
entitled to reimbursement of a credit. The Agency has decided
that it will not reimburse credits to any State.
The Financial Management Division (FMD) will track State/site
credits in FMS, and Regional Financial Management Officers a-e
responsible for recording, debiting i d fcransferring credits to
ensure that all credits (verified and unverified) plus State cost
share contributions equal 10 or 50 percent as required.
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9375.1-09
III. OTHER STATE ASSURANCE REQUIREMENTS
A. Operation and Maintenance
1. Current Requirements/Guidance
In accordance with section 104(c)(3) a State must assure EPA
prior to remedial action that it will assume responsibility for
all future operation and maintenance (O&M) for the expected
life of each remedial action taken at a site. Under current
policy EPA may share in the costs for that phase of remedial
action that ensures a remedy is operational and functional for a
period not to exceed one year. Costs will be shared on the same
percentage basis as applied to the remedial action. This policy
will remain in effect for remedies that do not address ground and
surface water restoration.
The State will generally assume the lead for this phase of
remedial action. For Federal-lead sites, EPA may continue as
lead for a short period of time to enable the State to affect an
efficient transfer of responsibilities. The State must assume
full responsibility after EPA assistance ends.
2. Ground and Surface Water Restoration
Section 104(i) of SARA adds paragraph (6) to CERCLA Section
104(c) to address treatment to restore contaminated ground or
surface water to levels that assure protection of human health
and the environment. SARA provides that the operation of such
treatment or measures, for a period up to ten years after the
construction or installation and commencement of operation,
or until a protective level as defined in the ROD is obtained,
shall be considered remedial action. Activities required to
maintain the effectiveness of such treatment or measures following
this period, shall be considered O&M. The one-year period
discussed in the previous section to ensure that the remedy is
operational and functional is not applicable to these situations.
States are encouraged to continue or to assume the lead through
a cooperative agreement for that portion of remedial action required
to restore surface or ground water to adequate levels to ensure pro-
tection of human health and the environment. If a State agrees
to undertake the lead, the full Federal share of the cost of
restoration for up to ten years may be obligated in i cooperative
agreement. For Federal-lead response, EPA may cont' ue- in some
instances, as lead for a portion of the restoration to enable a
State to effect an efficient assumption of the restoration activities
The following language or its equivalent may be included in
SSCs to address the restoration of ground or surface water and
this 10-year cost-sharing requirement:
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9375M-09
Pursuant to CEKCLA section 104(c)(6), EPA is authorized to
cost share in the restoration of ground or surface water
for a period of up to ten years or until a sufficient level
of protectiveness as defined in the ROD is achieved. The
remedial design must include a plan for restoring the ground
or surface water to this level of protectiveness. This
plan shall include at a minimum: a schedule of restoration
activities and an estimate of the duration of such activities;
staffing requirements; equipment and materials requirements;
annual restoration costs; and designation of the agency
responsible for the restoration activities. This agreement
will be amended to provide EPA's cost share for restoration
activity to the State through a cooperative agreement if the
State agrees to undertake the lead for this portion of the
•remedial action.
The ten-year clock for this period will begin when the last
operable unit ROD addressing ground or surface water restoration
.for the site is implemented. The State will be required to cost
'share during this period of remedial action at the same percentage
applied to the rest of the remedial action. At the conclusion
of EPA's participation, the State must assume full responsibility
for any further treatment and any 04M.
B. Off-Site Disposal Assurance
The off-site disposal assurance language under CERCLA remains
unchanged. However, section 121(d)(3) of CERCLA, as amended by
SARA, defines the requirements that facilities must meet in order
to accept CERCLA wastes. The Agency's off-site policy is still in
effect although the Office of Waste Programs Enforcement (OWPE)
is currently revising that policy for incorporation in the NCP.
When the State provides its assurance on the availability of an
off-site facility, the facility must be acceptable to EPA. In
some instances, wastes may be sent to facilities regulated under
and in compliance with other Federal Statutes (i.e., Toxic Substances
Control Act). Acceptability will be determined by EPA's criteria
for treatment, storage or disposal of hazardous substances from
Superfund response sites and compliance with the requirements of
Subtitle C of RCRA. The facility must have had a recent compliance
inspection prior to receipt of the wastes and must have sufficient
capacity to handle the wastes. SARA provides explicitly that,
where the use of off-site land disposal facilities is contemplated,
units receiving CERCLA wastes must have no releases; other units
with releases (including soiid waste management units) must be
under a corrective action program approved by EPA. Treatment
and storage facilities will not automatically be deemed inelig.ble
based on releases from other units. Instead, EPA must determine
that the release presents no significant threat to human health
or the environment. Releases do not include releases permitted
under Federal or State laws. This assurance is only required
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9375.1-09
for remedial actions including off-site treatment, storage or
disposal of hazardous substances as necessary part of the remedy.
However, wastes from removal actions may only be sent to facilities
meeting these same criteria.
C. Access and Acquisition of Property
EPA's policy has been that States must obtain access to
sites for both State- and Federal-lead response activities.
Section 104(e)(3) of CERCLA authorizes EPA and its represen-
tative, including contractors for Fund-financed response
activities, to enter any vessel, facility, establishment, or
other property where a hazardous substance may be or has been
generated, stored, treated, disposed of, transported from, or
released or where release may be threatened, or where entry is
needed to determine the need for or to undertake a response.
States acting under a CA or a SSC may also use this authority.
.In the absence of such agreements, States are expected to use
their own authorities to gain access.
The need to enter private property for response purposes
sometimes raises the issue of acquiring an interest in the
property. Under Section 104(j) of CERCLA, as amended, States are
required to assure EPA that they will accept transfer of the
acquired interest following the completion of the remedial action.
The Assistant Administrator for the Office of Solid Waste and
Emergency Response with the the concurrence of the General Counsel
will determine when the purchase of a property interest is necessary
If EPA determines that an interest in such property is
required, it is EPA's policy that States acquire the interest
upfront before the fund-financed response action can proceed.
States must enter into a CA to receive Federal funds to purchase
the real property even on a Federal-lead action. If acquisition
is approved by EPA, States must comply with applicable Federal
regulations for property acquisition under assistance agreements
(40 CFR Part 4 and 40 CFR Part 33).
The Federal Emergency Management Administration's procedures
for acquiring real property as part of a relocation remain in
effect. As stated above, a State must agree to take title to
such property before relocation can begin.
D. Twenty-Year Waste Capacity
By October 17, 1989, States must provide EPA with an assurance
that they have capacity for disposal or treatment of all hazardous
wastes expected to be generated within the States in the next 20
years. EPA must determine if these State assurances are adequate.
States may enter into regional compacts to assure future capacity.
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937 5'. 1-09'
A Capacity Work Group will address the policy issues which
must be resolved prior to providing Regions and States with
detailed guidance on what constitutes an adequate assurance.
Regions and States will be involved in developing guidance on
the capacity assurance. Further guidance will be issued as
policy decisions on the implementation of this assurance are
made.
IV. COOPERATIVE AGREEMENT REQUIREMENTS
A. Statutory 90-Day Review of Cooperative Agreement Applications
Section 104(d)(l)(A) of CERCLA, as amended by SARA, requires
the Agency to make a determination on an application for a CA
within 90 days of receipt. The 90-day clock will begin when the
Regional Assistance Office receives the final CA application
from the State. Regions and States will need to work together
•'to ensure that this statutory timeframe is met and that the final
application is submitted directly to the Regional Assistance Office
rather than Superfund program managers. This 90-day requirement
can work both for or against EPA and the State. While EPA will
make a decision on an application in 90-days, EPA will of course,
have the option of disapproving an application if it is incom-
plete or inadequate. Therefore, Regions and States should work
together prior to formal submission of the CA application to
ensure that the application is complete.
Regions should Initiate pre-application assistance to States
at least two quarters prior to the target quarter for funding.
Regions should request from the State a pre-application outline
of activities to be covered by the assistance agreement. States
should submit final applications to EPA at least one quarter
before funds are scheduled to be awarded in order to satisfy SCAP
and Strategic Planning and Management Systems (SPMS) targets and
the 90-day review at the same time.
Amendments to CAs will not usually take 90 days to review.
In cases where the amendment adds a new activity/site to a multi-
activity/multi-site CA or will fund a new phase of response,
the full 90-days may be required to make a decision on the appli-
cation.
Under the 90-day review limitation, Regions should conduct
a thorough r»v aw within 30 days of receipt of the CA application
n order to notify States ot clarification needs or additional
data requirements. The States should take no longer than 30
days to provide the required information so that the review of
the revised application can be completed in the final 30 days of
the 90-day review period. If the State does not respond to the
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9375.1-09
Region's request for additional Information, the Region may act
on the application with the data available prior to the end of
the 90-day review.
The Office of Emergency and Remedial Response (OERR) recognizes
that a precedent for stopping the clock or extending the 90-day
review may exist in other EPA regulations which address
similar statutory requirements. However, such regulations do
not currently exist for the Superfund program. The statutory
90-day review requirement means that EPA must either approve or
disapprove the final applications within the 90-day time period.
B. Cooperative Agreements with Indian Tribes
Section 126 of SARA mandates that the governing body of an
Indian tribe be treated substantially the same as a State
for implementing sections 103(a), 104(c)(2), 104(e), 104(1) and
'105 of CERCLA. SARA also authorizes EPA to enter into CAs with
Federally recognized Indian tribes. However, State assurances
do not apply to CAs or contracts with Indian tribes. Section
101(36) of CERCLA, as amended, defines the term Indian tribe as
meaning any Indian tribe, land, nation, or other organized group
or community, including any Alaska Native village but not
including any Alaska native village corporation, which is recognized
as eligible for the special programs and services provided by
the United States to Indians because of their status as. Indians.
Only Federally recognized tribes may enter Into CAs to receive
assistance from the fund and to take the lead for remedial response
at an NPL site on Indian lands.
Generally, remedial response on Indian lands will be Federal-
lead with management assistance CAs available for Federally
recognized Indian tribes. Removals will also be undertaken as
Federal-lead actions on Indian lands. Guidance on CAs with
Indian tribes is under development.
C. Eligible Funding Activities Under SARA
EPA's current policies and procedures for funding site-
specific State-lead activities will continue without modifi-
cation. Since SARA endorsed EPA's multi-site/multi-activity
CA concept, EPA will continue to enter into these with States as
we I I.
The 'or "erence Report for the SARA amendments to section
104(d)(l) includes a broad range of activities that can be funded
to support State participation in the Superfund program. Therefore,
EPA intends to implement core program funding for States as a
means of extending our existing policy of covering States' adminis-
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9375:1-09"
trative expenses that are a necessary part of State partici-
pation in the implementation of CERCLA activities.
The core program funding mechanism will, subject to the
availability of appropriations, provide States with a continuous
funding source to develop and maintain program staff to conduct
and support site-specific CERCLA activities. The State Issues
Reauthorization Workgroup has worked with EPA to develop a
list of core program functions eligible for Federal funding and
is developing interim guidance for such funding. Some examples
of functions eligible for this funding are program management
and supervision, interagency coordination, general legal assistance,
contract and fiscal management, and clerical support for the
preceding functions.
The core program funding guidance will be issued to Regions
and States for comment in early summer. Core program funding
.should be available to all States by the beginning of FY 88.
V.' PRE-REMEDIAL REQUIREMENTS
A'. Cooperative Agreements for Pre-Remedial Activities
Pre-remedial activities can be conducted either*by EPA or
by the State. EPA and the State negotiate annually to determine
who will be responsible for each site. The State pre-remedial
program is intended to supplement EPA's program, not duplicate
or replace it. Federal assistance for State-lead pre-remedial
activities is provided through CAs in accordance with existing
policy and guidance. Site discovery is not an eligible activity
for pre-remedial funding.
B. Citizen Petitions for Preliminary Assessments (PA)
Section 105(d) of SARA requires EPA to perform a pre-
liminary assessment of any release when petitioned by any person
who may be affected by the release. The revised NCP will establish
guidelines for addressing these petitions. States may undertake
the lead for these PAs and will be required to meet statutory
and regulatory requirements for performing PAs initiated by
citizen petitions.
The PA must be completed within one year of the receipt of
the petition or EPA must notify the petitioner of its determination
that a PA is not appr^r-'ate. The factors to consider in making
this determination ai .• whether the site is eligible for CERCLA
response and has the petitioner provided sufficient information
to suspect there may be a release. Further guidance on citizen
petitions for PAs will be developed later and will include what
the State's role will be in responding to these petitions.
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9375.1-09
VI. SARA STATE INVOLVEMENT REQUIREMENTS
A. Status of Regulations
Section 121(f)(l) of SARA requires EPA to promulgate
regulations to ensure "meaningful and substantial" involvement
of States in pre-remedia 1 and remedial response. Section 121(f)(2)
and (3) mandate specific State involvement in enforcement response
and clean ups by Federal facilities. The State involvement
regulations will be promulgated in Subpart F of the revised NCP.
The proposed rule is scheduled for publication in July of 1987
and the final for April 1988, in order to meet the statutory
timeframe of 18 months from the date of enactment of SARA for
revisions to the NCP. The revised NCP is now undergoing Agency
review.
Subpart F wi11 introduce a consultation process for Regions
.and the States intended to establish a working partnership. The
consultation process will be driven by an EPA/State Superfund
Memorandum of Agreement (SMOA). EPA will encourage States to
enter into a SMOA, but the SMOA is not mandatory. Subpart F
will establish stringent requirements for State involvement in
the absence of a SMOA.
The primary goals of the SMOA are (1) to provide maximum
flexibility to EPA and States in planning and implementing
response actions; (2) to ensure equity for States and EPA as
partners in response actions; and (3) to reduce or eliminate
misunderstandings by clarifying EPA and State expectations. The
SMOA will address the State's role and EPA's role in both Federal-
and State-lead remedial and enforcement response. It may also
include a discussion of State/Federal interaction on removals, in
particular State assumption of post-removal site control measures
when necessary.
EPA/State Enforcement Agreements will be incorporated into
the SMOA where they exist. In the absence of a SMOA, States and
Regions should develop EPA/State Enforcement Agreements for
State-lead enforcement sites. CAs will continue to be the instrument
for delinating EPA and State responsibilities for all site-specific
response actions where the State has the lead for a Fund-financed
remedial or enforcement action. SSCs will be used to obtain
State assurances for Federal-lead Fund-financed remedial action.
Until now, tPA has relied on either a letter or Memr.randum of
Understanding to document State coi^ufence on Fede-al-.ead
remedial planning activities. Nei ner will be required if there
is a SMOA in place. The SMOA will serve the purpose of ensuring
that the State is an informed and willing partner in Federal-lead
remedial planning.
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937 5'. 1-09
SMOA Guidance Including a model agreement will be distributed
to the Regions and States for comment by early summer.
Subpart F also proposes a larger role for States during the
remedy selection process when the State has the lead for remedial
response. Based on the results of a capability analysis and site-
specific facts, some States will be afforded an opportunity to
prepare the ROD and select, with EPA concurrence, the remedy. This
new initiative is being addressed by the NCR workgroup now.
Additional information and guidance is forthcoming.
B. Interim Guidance for State Involvement
•Until the NCP is final, Regions should formally document
(by letter, memorandum, written notice, call documentation,
etc.) their efforts to assure State involvement at the following
points during response:
Consultation on Information used to rank sites in a
State for possible NPL listing
Review of Rl/FS workplan and draft FS, including
proposed plan
Consultation on State applicable or relevant and
appropriate requirements (ARARs) which must be
considered during Federal-lead remedial response
actions :
after site characterization data is available,
solicit contaminant and location-specific ARARs
after initial screening of alternatives prior to
comparative analysis conducted during the detailed
analysis, solicit technology or action-specific
ARARs
if EPA intends to waive State ARARs, under section
121(d)(4) of CERCLA, notify and solicit State
comments
respond to State comments on waiver when submitting
the selected remedy for concurrence
••consult with State during desln, on ARARs
Provide a copy of the ROD and Responsiveness Summary
to the State
Concurrence on selected remedy
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9375.1-09
Consultation on remedial design
Concurrence on NPL deletion.
VII. CONTRACT REQUIREMENTS
A. Minority Contracting Reporting Requirements
The manual on State Participation in the Superfund Program
and 40 CFR Part 33 addresses Minority Business Enterprises/
Women's Business Enterprises (MBE/WBE); these requirements
still apply. The Agency's policy has always been to foster the
Inclusion of MBE/WBt firms in Its contracting efforts.
Section 105(f) of CERCLA as amended by SARA now requires
that EPA report annually to Congress on MBE/WBE contracts
for response activities. States must continue to comply with
existing assistance agreement requirements on MBE/WBE contract
'reporting. Regions must collect this data for inclusion in the
Annual Report on Superfund prepared for Congress. The Regional
Superfund MBE/WBE coordinator ca-n provide additional guidance
on MBE/WBE reporting requirements.
B. Conflict of Interest Requirements
The manual on State Participation in the Superfund Program
and 40 CFR Part 33 also address conflict of interest requirements
for State- and Federal-lead actions. These requirements are
still applicable. In addition, the revised NCR will formalize
the Agency's policy on the award of contracts to PRPs and possible
conflicts of interest. In the interim, the following guidance
will be applicable when considering PRPs for remedial response
contracts.
In some instances, construction contractors, who are PRPs
at a site may have conflicts of interest which would prevent
them from serving the best interest of the State and/or the
Federal government as a remedial action contractor. To protect
the interests of the State and Federal government under such
circumstances, the lead agency (Region or State) will include
appropriate language in the bid solicitation requiring potential
contractors to provide information on their status, and that of
their parent companies, affiliates and subcontractors as PRPs at
the site. The potential contractors will be required to certify
that they have disclosed such information or that no such inT^r-
mation exists, and that any such information discovered afte
submission of their bids, proposals or the contract award
will be disclosed immediately.
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9375:1-09-
Prior to contract award, the lead agency will verify that
the potential contractor and subcontractors do not have conflicts
of interest which in the EPA's opinion might impair their perfor-
mance. In the event that a member of the low bidder contract
team might have such a conflict, the bid may be declared non-
responsive if the contract team cannot substitute with an acceptable
subcontractor.
C. Contractor Indemnification Requirements
Section 119 of SARA amends CERCLA to authorize the Federal
government to idemnify response contractors for liability related
to damage from releases arising out of the contractor's negligent
performance when adequate pollution liability insurance is not
available to the contractor. Detailed guidance will be proposed
in the Federal Register in late FY 87 or early FY 88. This
guidance will address what constitutes adequate liability
Insurance and when contractors for State-lead response can be
indemnified by the Federal government. Interim guidance on
contractor indemnification is being developed now- and will be
available soon. All State requests for indemnification and
questions on indemnification should be addressed to the Agency's
Indemnification Task Force, Office of Waste Programs Enforcement.
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CONTACTS FOR STATE ISSUES INTERIM GUIDANCE
Name/Title
Jan Wine, Chief
State Involvement
Section
Betty Winter
SLCB/HSCD
Provisions
All provisions
All provisions except
as specified below
Phone
(202- or F1S)
382-2443
382-2450
Richard Johnson
GAD
40 CFR 30
40 CFR 33
382-5296
Bob Cluck
FMD
Stan Fredericks
FMD
Financial Management
Requirements for State
Credits
Reimbursement of Cash
Advance Match
382-5160
382-2268
Bob Mason/Tom Gi1 I is
OWPE
Contractor Indemnifi-
cation
382-4U15/
382-4524
Jim Jowett
SAB/HSED
Lucy Si bo Id
SAB/HSED
Mike Kilpatrick
OWPE
Paul Nadeau
HSCD
Bobbie Lively-Diebold
SLCB/HSCD
Gary Pulford
SLCB/HSCD
Malcolm Bliss
OSWER
NHL Listing Process
HRS System
Citizen Petitions
Pre-Remedial Activities
Oft-Site Disposa I
Contractor Conflict of
Interest
Supertund Indian Policy
Core Program Funding
SMOA
Twenty-year Waste
Capacity
475-8195
382-2454
47b-82b9
382-2346
382-7992
382-2443
382-4677
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