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Unind Slates
Environmental Proieeitor
Aqtrcy
Office o'
Solid Waste and
F-nergerc. Resporse
SEPA
DIRECTIVE NUMBER: 9831.7
TITLE: Supporting State Attorneys General CERCLA Remedial
and Enforcement Activities at NPL Sites
APPROVAL DATE: JUN 2 I [988
EFFECTIVE DATE: JUN 2 I fggg
ORIGINATING OFFICE: OWPE/OERR
~ FINAL
~ DRAFT
LEVEL OF DRAFT
Q C — Review & Comment
REFERENCE (other documents): 983L.6
S WER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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r&EPA
UnIt«siate3!?rwfonme!uaIT'rorectIon^c«ie^
Washington. DC 20490
OSWER Directive Initiation Request
I. Originator Information
1 Directive Number
9831.7
Name of Contact Person
TONY DIECIDUE
Mail Cod*
WH-527
Office
WASTE
ITetepnone Code
PROGRAMS ENFORCEMENT 382-4841
3 Title
SUPPORTING STATE ATTORNEYS GENERAL CERCLA REMEDIAL AND ENFORCEMENT RESPONSE
ACTIVITIES AT NPL SITES
J Su-nnary of Diresir.e (include onef statement of purpose)
Reaffirms role of State lead agency for award of cooperative agreements and that
funds can none-the-less be available to State Attorneys General via pass through
from the lead agency. Summarizes types of cooperative agreements available.
5 Keywords
State Attorneys General/Cooperative Agreements
6a Does This Directive Supers«a« Previous Directs els)1
j x | No ) | Yes What directive (number, title)
b Ooes It Supplement Previous Oirective(s)'' I i I
j [ No ; Xj Yes What directs* (numOer, tSOe)
9831.6
7 Draft level
j | A - Signed By AA/DAA | x | B - Signed by Office Director | j C - For Review 4 Comment | | 0 - In PeMtapinent
8. Document to be distributed to States by Headquarters? Qy« I INo
This Request Meets OSWER Directives System Format Standards.
9 Sgrattire of Lead Office Directives Coordinator
Oaie ,
&/<2f/rr
10 Name and Tjla^of Approirin/Official j j
EPA Form tltS-17 (Rev. S-87) Previous editions are obsolete
OSWER OSWER OSWER 0
VE DIRECTIVE DIRECTIVE DIRECTIVE
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,i° St,,.
ISSKj
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 21 1988
OFFICE OF
SOLID WASTE ANO EMERGENCY AESPONSf
9831.7
MEMORANDUM
SUBJECT:
FROM:
Supporting State Attorneys General CERCLA Remedial
and Enforcement Response Activities at NPL Sites
TO:
PURPOSE
Henry L. Longest, Director
Office of Emergency and Remedial
Jonathan Director
Office/of Waste Programs Enforcement
Waste [Management Division Directors
Regions I - X
Les an NfLi iites /
Response £
The Agency has received several inquiries over the last few
months about the eligibility of State Attorneys General (AG) to
receive funds to support their CERCLA response activities at NPL
sites, and the specific funding mechanisms for awarding these
funds. Administrator Lee M. Thomas has also asked that we
clarify the Agency's position on funding State AGs.
This memorandum reaffirms that it is the Agency's policy to
enter into cooperative agreements with a single designated State
lead agency. However, it also reaffirms that CERCLA funds may be
available to State AGs, and describes three types of cooperative
agreements by which funds may be passed through the State lead
agency to the State AG.
BACKGROUND
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), authorizes EPA to enter into
cooperative agreements with States to conduct response actions at
hazardous waste sites. A Superfund cooperative agreement award
is the assistance vehicle that transfers funds for response to
the States and documents both EPA and State responsibilities for
a site. EPA will only enter into cooperative agreements with the
State lead agency (usually the State's pollution control agency)
as designated by the State's Governor.
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9831.7
To involve other essential State agencies, such as the State
AG's office, the State lead agency typically enters into an
intergovernmental agreement with these other agencies.
Therefore, the mechanism for providing funds to other State
agencies is:
° A cooperative agreement with the State lead agency;
along with
° A pass-through by the State lead agency to another
agency by way of a two-party intergovernmental
agreement prior to costs being incurred.
PROCEDURES FOR STATES AND EPA REGIONAL OFFICES
The State
The State AG may require Fund money to conduct their
responsibilities for the State's CERCLA program, or the State
lead agency may require State AG support to conduct their
responsibilities. In either case, any request for funding from
EPA must come from the State lead agency.
Therefore, in developing a cooperative agreement
application, the State lead agency must:
° indicate which portion of the funds requested are for
the State AG's efforts; and
° Identify the specific tasks the State AG will conduct
with the funds.
The EPA Regional Office
When reviewing cooperative agreement applications, Regional
offices must consider how CERCLA funds will be allocated among
State agencies, such as the State AG, whose participation may be
necessary or required to achieve cleanup of the site. This step
is essential, in order to determine that the State lead agency
will have the necessary technical and legal support for
completing all remedial and enforcement response activities at
the site.
Knowledge of each State agency's roles and responsibilities
will also enhance communication between those offices and between
the State lead agency and Regional office in developing and
implementing State projects.
Therefore, in reviewing a cooperative agreement application,
the Region must determine:
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9831.7
° Whether the funding requirements and tasks of the State
AG are addressed; and if not reflected in the
application,
° Whether the State AG has been notified and consulted
with by the State lead agency prior to awarding the
agreement.
This will ensure that the State AG is fully informed of the
project, and will have the necessary or required resources and
staff to uphold its project responsibilities.
TYPES OF COOPERATIVE AGREEMENTS AVAILABLE FOR AG FUNDING
Generally, the three existing types of cooperative
agreements will continue to be used to fund State AG efforts.
These are (1) a Core Program Cooperative Agreement; (2) a
Cooperative Agreement for Support Agencies at Federal-lead sites;
and (3) a Site-specific Cooperative Agreement.
Core Program Cooperative Agreements (CPCAs1)
CPCAs were created by EPA to ensure that each State has the
funds it needs to develop and manage a program to carry out its
CERCLA activities at NPL sites. Under a CPCA, a State may
receive up to $250,000 to cover administrative, management and
coordination costs associated with building, strengthening and
maintaining a State's CERCLA program.
Under a CPCA, the State lead agency requests funds for
developing, managing and/or supporting the State's CERCLA
response program. Of the several functions that are eligible for
CPCA funding some portion of the $250,000 may be provided to the
State AG for its assistance in these areas, including such things
as:
o
o
o
o
Development and refinement of a State CERCLA
enforcement program and procedures for implementation;
Development of legal authorities;
Protocols for document review for legal sufficiency and
enforceability;
Legal assistance, such as for coordinating the
identification of ARARs and development of
administrative records; and
o
Other general legal assistance as appropriate.
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9831.7
With specific regard to the above tasks, if the State lead
agency needs to identify a portion of the State's CPCA funds for
the State AG, it must do so both in the cooperative agreement
application and statement of work. If the State AG agrees to
provide such assistance, a copy of the intergovernmental
agreement to this effect must be attached to the application.
Please refer to the "Final Guidance on State Core Program
Funding Cooperative Agreements," dated December 18, 1987, (OSWER
Directive Number 9375.2-01) for more information on CPCAs.
Cooperative Agreements for Support Agencies at Federal-lead Sites
EPA coordinates all site-specific Federal-lead response
activities with States. To monitor progress and meaningfully
consult with EPA at these sites, States may review significant
documents produced during a project, attend important meetings
about site progress, arid make site visits. Such site-specific
activities performed by the State are known as management
assistance.
Management assistance applies to Federal-lead enforcement
sites as well as Federal-lead Fund-financed sites. With specific
reference to Federal-lead enforcement sites, States may request
management assistance funds so that they may be involved or
participate in programmatic discussions and review activities
with EPA and potentially responsible parties (PRPs). One example
of this programmatic responsibility may be making a legal
determination of applicable State requirements for an NPL site as
part of the ARAR identification process. Management assistance
funds are available to the State lead agency for these tasks.
Assistance for such tasks may be provided by the State AG.
However, even where the State AG is directly responsible for
various tasks, the State lead agency must still request the funds
from EPA for the State AG.
Cooperative Agreements for Site-specific Response at State-lead
Sites (Single or Multi-Site Agreements)
EPA and the State will typically negotiate annually to
determine who will have the lead for response activities at NPL
sites. This holds true for both Fund-lead and enforcement-lead
sites. Again, with specific reference to enforcement sites, EPA
and the State may agree to designate a site as State-lead
enforcement. If so, the State may receive funding for various
enforcement activities, including (1) PRP searches; (2) issuance
of notice letters to PRPs; (3) negotiations with PRPs to secure
their commitment for site cleanup; (4) administrative or judicial
enforcement actions to compel PRP cleanup; and (5) oversight of
PRP response activities. The State lead agency may either have
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9831.7
the legal capability or responsibility to perform these tasks
itself, or it may request or require that the State AG perform
these tasks. In the latter case, the State lead agency must
request the funds in its cooperative agreement application for
State AG performance of these tasks. Under a multi-site
cooperative agreement, the State lead agency may request funds
for the State AG allocated to the sites at which the State AG may
have a role.
Please see OERR's manual on "State Participation in the
Superfund Program" and OWPE's "Interim Final Guidance Package on
Funding CERCLA State Enforcement Actions at NPL Sites," dated
April 7, 1987, (OSWER Directive Number 9831.6) for additional
information on management assistance and site-specific
cooperative agreements.
STATUS OF FUNDING TO SUPPORT STATE AG EFFORTS
For your information, we have attached a list of States
which have identified funds for their State AG in either a CPCA
or site-specific cooperative agreement with EPA. The site-
specific cooperative agreements which have funds for pass-through
to the State AG are currently all related to management
assistance at enforcement sites.
Should you have any questions on this matter, please contact
Tony Diecidue at FTS-382-4841 (enforcement-lead) or John Banks
(Fund-lead) at FTS-382-2450.
Attachment
cc: Superfund Branch Chiefs, Region I - X
Superfund Section Chiefs, Region I - X
Regional Counsels, I - X
Grants Administration Contacts, Region I - X
National Association of Attorneys General
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9831.7
ATTACHMENT
STATUS OF FUNDING TO SUPPORT STATE AG EFFORTS*
REGION
1
2
3
4
5
6
7
8
9
10
SITE-SPECIFIC
COOPERATIVE AGREEMENTS
None
None
None
None
None
Management assistance
CA at an enforcement
site (Combustion Inc.,
LA) .
None
Colorado
None
Oregon and Idaho
CORE PROGRAM
COOPERATIVE AGREEMENTS
None
Regional discussions with
Puerto Rico indicate they
may fund AG.
Virginia and Maryland
Regional discussions with
South Carolina indicate
they may fund AG.
None
None. All State lead
agencies have own legal
support.
None
Colorado
None
None
~Information gathered from phone survey of Regions I-X.
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