s>EPA
United
Erwltonmental PrafetSof
Agency
Transfer of Long-Term
Response Action (LIRA)
Projects to States
July 2003
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Section
104(c)(6), provides the statutory basis for the transfer of ground water and surface water restoration
projects from the Environmental Protection Agency (EPA) to State Operation and Maintenance (O&M).
The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR§300.435(f)(3),
states, "for fund-financed remedial actions involving treatment or other measures to restore ground water
or surface water quality to a level that assures protection of human health and the environment, the
operation of such treatment or other measures for a period up to ten years after the remedy becomes
operational and functional (O&F) will be considered part of the remedial action. Activities required to
maintain the effectiveness of such treatment or measures following the ten-year period, or after the
remedial action is complete, whichever is earlier, shall be considered O&M." EPA defines the ten-year
period between the O&F determination and the start of O&M as a long-term response action (LTRA) and
federal funding is still provided as it was for the remedial action. If cleanup goals have not been achieved
upon completion of the ten years, the remedy transitions into O&M to be conducted by the State. Federal
funds cannot be used to conduct O&M.
This fact sheet identifies key elements of the LTRA transfer process and provides guidance for Remedial
Project Managers (RPMs) concerning the transfer of responsibilities from EPA to the State for O&M.
Users of the Remedial Design/Remedial Action (RD/RA) Handbook are encouraged to place this fact sheet
in Appendix I-Operations & Maintenance. This fact sheet can be downloaded from the superfund
website: httv://www.eva.£ov/suyerfund/action/vostconstruction/index.htm.
This document provides guidance to EPA personnel. It is not a regulation, and does not create any legal obligations on any person or entity. EPA
will apply the guidance to any particular project only to the extent appropriate in light of the facts. EPA welcomes public comment on this
document at any time.
TABLE OF CONTENTS
Topic
Page Number
A. Overview 1
B. Key Definitions and Milestones 2
C. Optimization Considerations During LTRA 4
D. Preparing for LTRA Transfer 5
E. Transition from LTRA to O&M 6
F. EPA Oversight During O&M 9
G. Conclusion 9
A.
Overview
This fact sheet provides guidance to RPMs and
others who have responsibilities for
transferring LTRA projects from EPA to
States. It gives practical information on
planning for the transfer of a remedy from the
LTRA to the O&M stage, including roles and
responsibilities, documentation, and record
keeping. This fact sheet complements the fact
sheet, Operation & Maintenance in the
Superfund Program, dated May 2001, OSWER
9200.1-37FS.
-------
B. Key Definitions and Milestones
What is NOT considered an LTRA ?
The concepts defined in this section are shown
graphically in Exhibit 1. The actions and
subactions are also defined in the Superfund
Program Implementation Manual (SPIM) and
are reported in the WasteLAN database.
What is a long-term response action (LTRA)?
The NCP, 40 CFR§300.435(f)(3), states: "For
fund-financed remedial actions involving
treatment or other measures to restore ground-
or surface-water quality to a level that assures
protection of human health and the
environment, the operation of such treatment or
other measures for a period of up to ten years
after the remedy becomes operational and
functional will be considered part of the
remedial action." The ten year period between
the O&F determination and the start of O&M is
defined for the purposes of this fact sheet as a
long-term response action, LTRA, and federal
funding is still provided as it was for the
remedial action. Ground water pump and treat
and monitored natural attenuation (MNA)
remedies with objectives of aquifer restoration
are currently the most common LTRA
remedies.
The LTRA provision is limited to remedies
involving ground water and surface water
restoration. A restoration remedy is a
remedial action with the objective of returning
all or part of a surface water body or ground
water aquifer to cleanup levels specified in the
Record of Decision (ROD).
It should be noted that restoration can be the
objective of interim remedies as well. Thus, an
O&F determination for an interim remedy with
a restoration objective will also initiate the
LTRA ten-year period.
The NCP, 40 CFR§300.435(f)(4), identifies
two remedies that are not considered
restoration measures:
• Source control maintenance measures
and
• Ground- or surface-water measures
initiated for the primary purpose of
providing a drinking water supply (not
for the purpose of restoring ground
water).
In addition, the following measures do not have
ground water restoration as an objective, and
therefore, would NOT be considered LTRAs:
• A ground water pump and treat remedy
with containment as the only objective
and
• Ground water monitoring only (with no
restoration objective).
How are nonaqueous phase liquids (NAPLs)
addressed?
Special consideration may be needed for
response actions where the specific remedial
action objective is the removal of nonaqueous
phase liquid as a source material through direct
extraction [e.g., pumping or collection trenches
for light nonaqueous phase liquid (LNAPL)] or
enhanced recovery techniques [e.g., in-situ
thermal treatment for dense nonaqueous phase
liquid (DNAPL)]. The remedial action
objective for these actions is generally source
removal or recovery. As such, these actions
generally do not trigger the LTRA phase.
However, DNAPL or LNAPL recovery
frequently will be done concurrently
-------
L
1'
Interim Final RA Report
RA Report (Cleanup Goals Achieved)
+ , 1
^ | ^, LTRA K. | ^i ° & M V
i^°*F^r "ioyrs *r
••lyi.
H
Exhibit 1- Fund-lead Ground Water and Surface Water Restoration Pipeline
with response actions to restore a ground
water plume containing dissolved contaminants
(using technologies such as pump and treat or
MNA). In these cases, the response action
addressing restoration of the ground water
plume will transition to LTRA following the
O&F determination.
What is the operational and functional (O&F)
determination ?
The NCP, 40 CFR§300.435(f)(2) states, "A
remedy becomes operational and functional
either one year after construction is complete
("shake-down" period), or when the remedy is
determined concurrently by EPA and the State
to be functioning properly and is performing as
designed, whichever is earlier. EPA may grant
extensions to the one-year period, as
appropriate." This reference to 'construction is
complete' means the date when physical
construction activities have been completed for
the particular remedy component and is not the
same as the 'construction completion'
milestone for the entire site.
Formal O&F determinations are made for fund-
financed remedies because the O&F milestone
governs when EPA turns these remedies over
to the States for O&M. For fund-financed
remedies, EPA and the State conduct a joint
inspection at the conclusion of construction to
determine that the remedy has been constructed
properly. The joint inspection also marks the
beginning of the one-year O&F period
described above. The O&F milestone,
determined by the approval of the Interim or
Final Remedial Action (RA) Report, begins the
ten-year LTRA period.
In cases where LTRA is not applicable, the
O&F milestone begins the O&M period. See
the Operation & Maintenance in the Superfund
Program fact sheet for more information on
O&F documentation.
What if EPA did not make an O&F
determination or did not enter a date of "O&F
Actual Completion" in WasteLAN?
As indicated in the current version of the
SPIM, the date of O&F completion is
documented in the Interim or Final RA Report.
It may also be documented by letter to the
interested parties. For remedies that were O&F
prior to fiscal year 2000, however, the
documentation requirements were not as clearly
specified.
-------
If an O&F completion date has not been
documented and entered in WasteLAN, it is
critical that the Region establish this date in
order to properly track the start of the ten-year
LTRA period and transfer the remedy to the
State at the end of LTRA. Possible approaches
are:
1) Check the site files for any letters or other
correspondence to the State that may have
established the O&F completion date. Enter
that date in WasteLAN.
2) Check the site files for documentation of
when construction was completed for the
restoration remedy OU, which establishes the
start of the one-year O&F period. A contractor
progress report, documentation of a contract
final inspection, or documentation of a joint
inspection with the State may exist to establish
when construction was completed for the
relevant OU. The OU is considered O&F
complete one year after physical construction is
complete, unless EPA extends the period.
3) If remedial action completion has been
documented for the restoration remedy OU,
through an Interim or Final RA Report, this
document can also establish the O&F
completion date.
Regardless of the approach used for entering
the O&F completion date in WasteLAN, the
Region also should notify the State in writing
of the O&F date established to properly
document when the remedy will be transferred
to the State.
Does the ten-year LTRA period ever restart?
The ten-year LTRA period would not change
or restart following the initial O&F
determination. Adjustments to ground water
restoration remedies are routine (e.g., following
an optimization review) to ensure effective and
efficient operations. These adjustments would
not impact or change the LTRA period.
C. Optimization Considerations During
LTRA
EPA intends to transfer to States ground water
and surface water restoration systems that are
operating effectively and efficiently.
Optimization reviews by an independent party
are an important tool used to evaluate operating
systems. The major questions that should be
addressed during an optimization review
include:
• Has an evaluation been conducted on
the efficiency of extraction, treatment,
and overall performance?
• Can adjustments be made to the
extraction or treatment systems to
reduce costs?
• Is the system making progress toward
achieving restoration cleanup goals?
• Is the plume contained and contaminant
migration under control?
• Are recovery wells properly located to
maximize capture?
• What exit strategy will be used to guide
decisions on when to shut down the
ground water restoration system?
• Were any performance issues identified
during the previous five-year review
and have they been addressed?
• Do adjustments need to be made to the
monitoring effort?
-------
• Are system components outdated? Is
there newer technology which would
improve the efficiency/effectiveness of
the system and reduce long-term costs?
In general, optimization reviews to verify
remedy effectiveness and identify opportunities
for cost savings should be conducted early in
the LTRA period. In particular, this allows
more time for construction and operation of an
optimized system prior to transfer. If an
optimization review is not conducted within the
first few years of system operation, RPMs are
encouraged to conduct the review and
implement recommendations prior to
transferring an LTRA project to the State.
During the LTRA period, expenditures for an
optimization review, design and
implementation of an optimized system are
usually pipeline operations or ongoing remedial
action expenses. RPMs should ensure that
funding is identified and coordinate with the
State to ensure the State provides its ten percent
cost share. Where feasible, Regions are
encouraged to coordinate the timing of any
optimization reviews with five-year reviews.
D. Preparing for LTRA Transfer
State involvement in fund-financed ground
water and surface water restoration projects can
begin at different stages. For remedies where
the State has assumed the lead role for remedial
action under a cooperative agreement, the State
may design and build the remedy, and then
operate the system, with EPA funding,
throughout the ten-year LTRA period. Where
EPA maintains the lead for remedial action,
EPA will likely operate the system throughout
the LTRA period. In both cases, the State
continues to provide ten percent of the cost
during the LTRA period. States can assume the
lead at any time during the LTRA period, but
no later than at the end of the ten-year period.
This fact sheet is written from the perspective
often years of EPA operations followed by
transition to the State. However, the general
principles would apply even if the State is the
lead agency during the LTRA period.
Planning ahead for transfer from LTRA to
O&M should start during Remedial Design
(RD) of the system. Early preparation helps to:
• Clarify State financial and performance
commitments,
• Ensure that adequate language is
incorporated into the State assurances
embodied in Superfund State Contracts
(SSC) and Cooperative Agreements
(CA), and
• Provide an opportunity for State input
to system design, operation during the
LTRA period, and for State-funded
O&M after the transfer.
As discussed in the Operation & Maintenance
in the Superfund Program fact sheet, the O&M
Plan developed during Remedial Design (RD)
stage is a critical component of the transfer
process, and helps to ensure the proper
transition of responsibility for O&M of
fund-lead projects from EPA to the State. The
O&M Plan should define the administrative,
financial, and technical details and
requirements for inspecting, operating, and
maintaining the various components of a
remedy. An O&M Plan for an LTRA project
should generally contain the elements identified
in Exhibit 2
During the Remedial Action stage, major
considerations should include updating the
O&M Plan and encouraging State officials to
visit the site during construction. The joint
inspection and the O&F determination are also
-------
Exhibit 2 - Typical O&M Plan Elements to Consider for LTRA Transfer
Designation of the organizational unit of the State government responsible for O&M
Identification of the availability of State funding mechanisms for O&M activities
Milestone dates for State assumption of O&M responsibilities
Criteria for determination of O&F
Description and duration of O&M activities
Summary of O&M staffing needs (including training and certification requirements)
Summary of O&M performance standards
Contingency plan for handling emergency and abnormal occurrences
Safety requirements for O&M activities
Equipment and material requirements
Estimates of annual O&M costs
Reporting requirements
Conditions for O&M termination
Description of site use and disposition of facilities following completion of O&M
Modification of existing site health and safety plan (HASP) and quality assurance project plan (QAPP)
Access and property issues
Description of all required institutional controls
completed during the RA stage. During the
LTRA period, the O&M Plan should be
updated to reflect actual remedial activities.
For LTRA projects, as well as all other
projects, the State and EPA should have
frequent discussions about the O&M Plan, the
determination of O&F, the joint EPA/State
inspection, the O&M Manual, and any facility,
cost, or schedule changes. This early
involvement would help to:
Provide adequate time for the State to
prepare for transfer, including such
components as bidding and securing
contractor services, receiving training
on plant operation and maintenance,
and securing funding;
Allow the State adequate opportunity to
participate in the evaluation of plant
performance and efficiency; and
Allow the State to work through site
access issues as needed.
Additional considerations are discussed in the
Operation & Maintenance in the Super fund
Program fact sheet.
E.
Transition from LTRA to O&M
If cleanup goals have not been achieved upon
completion of the ten-year LTRA period, the
remedy transitions from LTRA into O&M.
This O&M designation is made only to
distinguish the funding from federal to State. It
is not related to any operational change in the
system. Once the cleanup goals have been met,
either during or after the ten-year period, a
follow-on monitoring component may be
required, which also is defined as O&M. If
cleanup goals are achieved at any time before
the end of the ten-year LTRA period, the
remedy may also transition to O&M, if
appropriate.
Many issues need to be addressed before an
LTRA project can be successfully transferred.
Exhibit 3 is a checklist of considerations that
the Region and State can follow over the life of
a project to minimize LTRA transfer issues.
-------
Exhibit 3 - Checklist of LTRA Considerations During a Superfund Project
Project Phase
Remedial Design
Remedial Action
O&F through Year 6 of
LTRA Period
Year 7 of LTRA
Year 8 of LTRA
(PLANNING AND
PERFORMANCE
REVIEWS)
Year 9 of LTRA
(IMPLEMENT
SYSTEM CHANGES)
Year 10 of LTRA
(COMPLETE
TRANSFER)
O&M Period
LTRA Considerations
• • Ensure that the RD statement of work includes development of an O&M Plan for LTRA;
• • Consult with the State to develop an O&M Plan for the selected remedy; and
• • Ensure signed SSC/CA includes language on the process for determining O&F date, EPA and State
obligations, and disposition of real property.
• • Ensure that the RA statement of work and design specifications require training of O&M staff
before the remedy is turned over;
• • Update O&M Plan;
• • Coordinate review and finalization of the O&M Manual with the State;
• • Draft the Interim RA Report at the completion of construction, including section on required O&M
activities;
• • Encourage State officials to visit site during construction;
• • Conduct joint EPA/State inspection at completion of remedy construction; and
• • EPA and State make an O&F determination and document it in the Interim RA Report as well as in
a letter to the State.
• • EPA (or State) operates system, makes adjustments, repairs, replacements, as appropriate;
• • Conduct a five-year review, consistent with the schedule for the site;
• • Consider an optimization review to ensure effective and efficient operation; and,
• • Strengthen communication with State (e.g., share performance and monitoring data, results of
performance reviews, etc.).
• • EPA initially notifies State by letter of date of LTRA transfer; and
• • State should initiate funding requests for continued O&M after LTRA is complete.
• • Revise O&M Plan as appropriate;
• • Continue to share cost and performance data and other technical data with State;
• • Review property transfer and site access requirements;
• • State begins staffing activities for O&M (e.g., hiring initiatives, procurement strategy and time line
for contract support);
• • Identify equipment for repair/replacement; and,
• • Consider an optimization review, if not previously performed.
• • EPA notifies State again by letter of date of anticipated transfer from LTRA to O&M so State can
have ample time for budgeting O&M costs, agree on schedule and milestones;
• • Design/construct revisions to system, as required;
• • EPA (or State) operates system;
• • Revise all manuals, sampling plans, and monitoring plans;
• • Conduct second five-year review, consistent with the schedule for the site; and,
• • Prepare to transfer permits, warranties, certificates of occupancy, deeds, and other agreements.
• • State completes arrangements for conducting O&M services;
• • State personnel or contractor should observe operations and receive training on the treatment
system;
• • Complete all transfer documents/arrangements; and
• • EPA sends final letter confirming transfer date and schedule for any remaining actions.
• • State assumes responsibility for conducting O&M;
• • State provides progress reports to EPA as agreed;
• • State (or EPA) conducts subsequent five-year reviews;
• • State and EPA determine when cleanup goals have been achieved; and
• • State or EPA prepares final RA Report.
-------
However, suggested actions may be completed in a
shorter time period. Regions are encouraged to
review and discuss LTRA transfer schedules with
the States on a routine basis (e.g., during annual
work planning meetings).
O&F through Year 6 of the LTRA Period
For the first 6 years of the LTRA period, major
activities are those associated with routine system
operations (e.g., operating the pump and treat
system, performing required maintenance,
evaluating the effectiveness of the MNA
monitoring network, and conducting an appropriate
level of monitoring to ensure system effectiveness).
In addition, the RPM should review remedy
performance, assess progress toward achieving
goals, and conduct a five-year review consistent
with the schedule for the site. An optimization
review should be considered during this period.
Year 7 of the LTRA Period
During year 7 of the LTRA period, EPA should
send the first notice of transfer to the State signator
of the SSC. This notice should also provide State
legislatures with at least two sessions to obtain
needed funding after the LTRA period. An
optimization review should be considered at this
time if one has not been previously performed.
Year 8 of the LTRA Period
During year 8 of the LTRA period, detailed
planning for the transfer of the ground water
restoration system should begin. EPA intends to
transfer to States, ground and surface water
restoration systems that are operating effectively
and efficiently. To accomplish this, specific
actions should be taken prior to the transfer of an
LTRA project to the State. The Region should
meet with the State to define the process, clarify
roles and responsibilities, and establish a schedule
and milestones. Then, EPA should conduct a
review of the treatment system, with State
participation. The review should document the
repairs or adjustments that will be corrected to
allow for the transfer after year 10. For
example, EPA may need to replace remedy
components that are obsolete, inefficient, or
nearing the end of their useful life before
transfer to the State. Follow-up actions should
be completed to the extent possible prior to
transfer to the State or as soon as possible
thereafter. An optimization review should be
considered at this time if one has not been
previously performed.
Year 9 of the LTRA Period
During year 9, any changes required from the
optimization review should be designed and
constructed, and any required changes to the
O&M Plan should be made. The State should
also receive official notification, by letter, of the
transfer date so there will be sufficient time for
their required budgeting and contracting
activities.
Year 10 of the LTRA Period
During year 10, EPA should continue to operate
and maintain the LTRA in an effective and
efficient manner making appropriate
modifications and improvements. EPA should
arrange, assist, or verify the transfer of title for
all permits, warranties, access arrangements,
lease agreements, easements, certificates of
occupancy, and real property deeds. EPA
generally will need to identify any equipment,
vehicles or facilities it intends to remove at the
time of transfer to allow the State an opportunity
to obtain substitute equipment, vehicles, or
facilities. EPA should also identify any
equipment or property that it seeks to maintain
title to and to participate in the disposal of any
equipment no longer needed for the operation of
the system. EPA should make revisions to any
manuals or plans as necessary. EPA also should
send another letter to the State confirming the
date of transfer and providing a schedule for any
remaining actions. By this time, the State should
have completed its contracting activities and
have a contractor in place to receive training on
-------
the system.
To facilitate transition of the system from EPA to
the State, the State should have its contractor
observe and receive EPA training to operate the
remedy and may jointly operate the system for the
final month(s) before transition.
What documentation is used for transfer?
It is recommended that all agreements associated
with the transfer of the ground water or surface
water restoration system be presented in a letter to
the file or to the record, signed by both EPA and
the State. This letter should include the following
as attachments:
Updated O&M Plan (see Exhibit 2),
O&M Manual,
• Remedial design documents, updated with
as-built drawings,
• Remedial Action Reports,
• Long-term monitoring results,
• Site Inspection Reports,
• Transfer documents for all permits
warranties, access arrangements, lease
agreements, easements, etc., and
• Description of all required institutional
controls.
F. EPA Oversight During O&M
Five-year reviews continue throughout the
O&M period as long as waste is left on-site
above levels that allow for unlimited use and
unrestricted exposure. EPA will either conduct
the five-year reviews or provide concurrence if
the State conducts the subsequent five-year
reviews.
EPA will provide funds for conducting five-year
reviews; however the State assumes full
responsibility for funding all actions associated
with O&M at the site. Federal funds cannot be
used for O&M activities.
G.
Conclusion
This fact sheet focuses on key elements of the
LTRA transfer process. Issues such as the
achievement of cleanup goals and exit strategy
are beyond the scope of this fact sheet but will
be considered in future guidances. For
additional information concerning the transfer of
LTRA projects from EPA to State for O&M,
please contact the appropriate Headquarters
Regional Coordinator.
This fact sheet is available electronically at:
http://www.epa.gov/superfund/action/postconstr
uction/index. htm.
As discussed in the Operation & Maintenance in
the Super fund Program fact sheet, the RPM is
responsible for assuring that O&M is performed by
the State and that required progress reports are
submitted to EPA.
-------
Office of Solid Waste and Emergency Response OSWER 9355.0-81FS-A
Washington, DC 20460 EPA 540-F-01 -021
10
------- |