State Remedy Selection Reform
Closeout Report
I. Background
In 1993, U.S. Environmental Protection Agency
announced the first of three rounds of Superfund
Reforms. Each round of Reforms consisted of
various initiatives and pilots focusing on changes
that EPA could implement within the existing
statutory framework of the Superfund program.
The Reforms were intended to accomplish various
goals, ranging from national programmatic
changes to changes affecting individual sites at
every stage of the cleanup and enforcement
processes.
The first round of Reforms responded to common
stakeholder concerns about expediting site
cleanups and increasing liability fairness. EPA
introduced the second round of Reforms in
February 1995. Round two Reforms produced
both pilot projects and guidance designed to
promote economic redevelopment and innovative
technology, enhance public involvement, and
empower States and tribes. In October 1995, EPA announced the third set of Superfund reform
initiatives. The goal of this package of Reforms was to promote cost effective cleanup choices,
reduce litigation and transaction costs, and ensure that States and communities are informed and
involved in cleanup decisions.
"Pilot Remedy Selection by Selected States and Tribes," otherwise known as the State Remedy
Selection Reform, was one of the third round Reforms. The objectives of the reform were to
pilot State selection of remedy at certain sites, evaluate these pilots, and publicize the lessons
learned from experience at the pilot sites. A decision that the State should lead the remedy
selection process was based on site- and State-specific circumstances. This reform effort is part
of a broader initiative to enhance the role of States and Tribes in the Superfund program and is
intended to build State interest and capability to support more broadly distributed program
implementation and work sharing.
The activities conducted under this reform included identifying pilot sites where the State would
Summary of Key Findings
EPA Regions considered 7 of 11 pilots as
successful
EPA oversight was low/medium (consistent
with intent of reform) at 80% of pilots
Written agreements are in place for all but
one of pilots, though roles, responsibilities
and requirements are not as clear as
desired
Durations for remedial activities were
comparable to EPA's historical experience
States selected a broad range of treatment
and containment technologies to address
soil and groundwater contamination
No supplemental Community Involvement
was required by EPA for any pilot
June 19,2002 OSWER 9375.3-07
Page 1
-------
State Remedy Selection Closeout Report
select the remedy, gathering information for the purpose of evaluating the pilots, reviewing and
analyzing experiences of Regions where States lead the remedy selection, and documenting the
lessons learned in the State remedy selection process. The information gathered and the lessons
learned will be subsumed under EPA's "Plan to Enhance the Role of States and Tribes in
Superfund" workgroup for any further work.
II. Purpose of this Report and Limitations
The purpose of this report is to provide lessons learned through an assessment of regional
experiences in State remedy selection. The assessment requested facts and opinions from EPA
Regional personnel responsible for managing remedy selection pilots to assess the overall status
of pilot projects and seek information regarding the degree of success in State remedy selection
for these pilots.
The small sample (11 projects) in this study provided an insufficient basis to draw significant
conclusions about the possible outcome of any further program in which States select remedies
at NPL sites. However, anecdotal evidence collected during this study suggests that the success
of State remedy selection varies among the pilots. EPA Regions should consider future State
Remedy Selection projects under appropriate conditions and limits as described later in the
findings section of this report.
III. Selection of Pilot Sites
In April 1996, EPA's Office of Emergency and Remedial Response (OERR) requested that EPA
Regions identify sites to be considered for the State Remedy Selection pilot. Following the
issuance of that memorandum, EPA formed a State Remedy Selection reform workgroup. The
workgroup developed pilot selection criteria and evaluation factors, and provided them to the
Regions in June, 1997.
Six EPA Regions identified a total of 31 sites (11 pilots) to participate in the State Remedy
Selection reform. These sites are shown in Table 1. Note that the South Bay pilot in Region 9
consists of 21 sites in the geographical area south of San Francisco Bay. These sites were
handled as a group due to their similar contaminant problems, location within the same
geographic region, and a similar time-frame for their discovery.
June 19,2002 OSWER 9375.3-07 Page 2
-------
State Remedy Selection Closeout Report
Table 1
Pilot States and Sites
EPA Region
Region 1
Region 2
Region 6
Region 7
Region 9
Region 10
State .
Connecticut
New Jersey
New York
Oklahoma
New Mexico
Kansas
California
Oregon
Pilot Site
Barkhamsted-New Hartford Landfill
Day co Corporation/L.E. Carpenter
Hercules, Inc.
Onondaga Lake
Blackwell Zinc
National Zinc
Terrero Mine
Fourth and Carey
Obee Road
South Bay Sites
McCormick and Baxter Creosoting
IV. Evaluation Process
To evaluate the State Remedy Selection process, EPA identified key areas of the reform on
which it wanted regional feedback. OERR prepared a questionnaire to gather information on
EPA's oversight, types of agreements adopted for the pilot, the use of EPA regulations and
guidance, the extent of community involvement, and lessons learned during the pilots. This
survey included background information on the site, including site size, contaminants, current
pipeline action, RI/FS lead, selected remedy, and time/cost information. The questionnaire was
forwarded to a representative from each EPA Region participating in the pilot. These
representatives were then interviewed based on the questionnaire, and their responses were
noted.
V. Site Characteristics and Project Administration
The information below summarizes key characteristics of the 31 sites selected for the State
Remedy Selection reform.
June 19,2002 OSWER 9375.3-07
Page 3
-------
State Remedy Selection Closeout Report
A. NPL Status
One of the site selection factors was whether the site is on the NPL or could be listed on the
NPL. The majority of the pilot sites (22 sites, or 71 percent) were final or proposed to the NPL
prior to the beginning of the pilot. Nine sites (29 percent) were not on the NPL.
B. Lead
At all 31 sites, the State, rather than EPA, had a lead role during the RI/FS stage. At 29 of the
sites (94 percent), the potentially responsible party (PRP) performed the RI/FS under State
direction. At the remaining two sites, the State managed the RI/FS. Regional personnel indicated
that the cooperation of PRPs during the RI/FS was among the most important factors contributing
to the success of the reform.
C. Types of Agreements
EPA and the States used three types of agreements to define the roles and responsibilities and the
conditions for participating in the State Remedy Selection pilot. EPA and the States negotiated
Memoranda of Agreement at five sites. EPA and the States signed cooperative agreements that
covered activities under four pilots, including the 21 South Bay sites which were addressed under
one multi-site cooperative agreement. An enforcement agreement was used at one site. EPA and
the State did not sign an agreement at one site where the PRPs are doing the work under State
direction. Both EPA and the State will write remedy decision documents for this site.
D. EPA Oversight
EPA's oversight was considered "low" if EPA only reviewed final documents and attended
meetings at the State's request. Oversight was considered "medium," if EPA reviewed drafts of
major deliverables and participated in key meetings held by the State. Oversight was considered
"high," if EPA reviewed all deliverables, concurred on acceptability, and assisted in ROD
preparation.
Most Regional personnel reported either a low or medium level of EPA oversight during their
pilot (9 of 11 pilots). Oversight for the pilot sites was less than the oversight typically provided
for traditional State-lead sites where EPA selected the remedy.
Only two pilots reported a high level of oversight. At one pilot, EPA oversight was high because
the issues at the site were complex. At the other pilot, the PRPs were performing the RI/FS
before EPA's guidance was final; as a consequence, EPA oversight was high during the remedy
selection phase.
Regions reported that at four pilots, EPA oversight decreased over time, as the State gained
June 19,2002 OSWER 9375.3-07 Page 4
-------
State Remedy Selection Closeout Report
experience and EPA gained confidence that the cleanup at the site was proceeding on track. At
one site, EPA increased its oversight because the proposed plan was not fully consistent with
CERCLA and the NCP. Subsequent coordination with the State ensured that the PRP was in
compliance with the RD/RA order, and the action is now consistent with EPA requirements.
Oversight also differed by activity at the site, often depending on the State's experience with a
particular activity. At one site, for example, EPA provided more oversight during the design of
the remedy than during construction. Overall, the amount of EPA oversight provided was based
on site- or State-specific needs, although no clear trend was evident throughout or among the
pilots.
E. Community Involvement
At five of the 11 pilots, the Regions reported a medium level of community involvement. Three
sites reported high and three sites reported low levels of community involvement. High levels
were largely the result of controversy at the site, whether it was related to the cost of cleanup or
the cooperativeness of the PRPs. In general, community involvement was high because of site-
specific conditions and not because the State was selecting the remedy.
In some cases, the level of community involvement changed during the course of the pilot. In
most cases, the community was more involved during the remedy selection phase and less
involved during the design and construction phases.
EPA generally adjusted its level of involvement with the community to suit site-specific
conditions. If community interest was high, EPA stayed more involved and active at the site.
During the pilot program, none of the Regions had to conduct additional community involvement
activities to fulfill the requirements of the NCP. In general, involving the community in the
decision-making process made the pilot more successful.
F. Durations
The majority of RD and RA projects were complete in under two years. These durations are
roughly comparable to the duration of remedial activities conducted by EPA at NPL sites.
G. Remedy Selection
At a majority of sites the selected remedy addressed soil and groundwater contamination,
although sediment contamination was also a problem at several sites. In some cases, a site had
more than one operable unit, and each operable unit addressed more than one medium during the
remedy selection process..
June 19,2002 OSWER 9375.3-07 Page 5
-------
State Remedy Selection Closeout Report
VI. Findings
When asked to rate the level of success of the pilot, regional personnel at seven of the 11 pilots
(64 percent) reported that the State Remedy Selection pilot was "Successful" or "Highly
Successful". Note that in the analysis of the findings, the South Bay sites are presented as one
pilot.
The Regions identified the following factors as keys to the success:
• Cooperative and financially viable PRPs (3 pilots);
• Good working relationships between the PRPs and the State (3 pilots) and between the
States and EPA (2 pilots); and
Regions generally considered the pilots to be successful if the States were capable of
undertaking the action and either knew, or quickly learned, the Superfund program,
performed the cleanup at a reasonable pace, and maintained a good flow of
communication with EPA.
Regional personnel managing four of the pilots rated them "Somewhat Successful." One Region
reported that the biggest problem was inconsistencies between State and Federal requirements; at
two sites, the State originally signed a ROD that was not entirely consistent with CERCLA and
the NCP. At both these sites EPA oversight increased and both sites achieved consistency.
Another Region reported that while the State took early action at the site, the remedy took longer
to construct under the State's direction than expected by the Region.
During the evaluation interviews, regional personnel generally agreed that a formal agreement
between EPA and the State was one of the keys to success. However, the presence of a formal
agreement did not eliminate all the issues associated with remedy selection. At a number of pilot
sites, the roles, responsibilities, and requirements that apply to the selection of the remedy were
not clearly defined in the agreement. As a result, EPA has learned that agreements between EPA
and States need to be clear to ensure that remedies selected are consistent with Federal
requirements, and that EPA concurs in the selected remedy.
VII. Lessons Learned
The foregoing analysis of the pilots led to the following recommendations and actions which
should be considered during future efforts on the State remedy selection:
EPA Regions should perform an analysis of State laws, regulations, and guidance, and
identify areas where there may be inconsistencies with Federal requirements and guidance
before entering into agreements for state remedy selection. Resolving inconsistencies is
particularly important when they may result in CERCLA or NCP requirements not being
met for a specific cleanup action.
June 19,2002 OSWER 9375.3-07 Page 6
-------
State Remedy Selection Closeout Report
• EPA has entered into memoranda of agreement (MO A) with States on the use of their
Voluntary Cleanup Programs (VCP) to address the cleanup of sites not on the NPL. This
report is not intended to affect the current policies of EPA as they relate to VCP
memoranda of agreement.
EPA and the State should identify specific roles and responsibilities, levels of EPA
oversight needed, the desired level of community involvement activities the State will
conduct, requirements for a CERCLA-equivalent cleanup, and planned use of EPA
guidance on remedy selection.
• EPA should concur on the Record of Decision in coordination with State officials, and
consistent with the NCP, to reduce complications during the deletion process.
• EPA Regions should consider a higher level of involvement during early planning and
scoping efforts, and during ROD development. As the State begins the RI/FS and remedy
selection process, higher EPA involvement and oversight helps to build State capability
and increases EPA's confidence in the protectiveness of the remedy selected. EPA and the
State should outline oversight responsibilities in the agreement. When the State has
substantial CERCLA experience, the anticipated remedy is not complex, or when a State
has a proven track record of successful Superfund cleanups, lower levels of oversight may
be appropriate.
VIII. Recommendations
Based on the findings and the lessons learned in the remedy selection pilots, the State Remedy
Selection reform provides valuable information on the State remedy selection approach and
implementation. Though the number of participants in the pilot program was small, an important
finding is that States were able to successfully take the lead role for many of the pilots. OERR
recommends that EPA Regions continue to seek further opportunities to enter into agreements
with States authorizing them to select remedies at appropriate sites. Because EPA will take
further action under this State remedy selection administrative reform through EPA's "Plan to
Enhance the Role of States and Tribes in Superfund," the Agency may use the process provided
in that plan to evaluate further State remedy selection candidates. The experiences of the Regions
and States that participated in the reform will be valuable in the ongoing and future efforts to
expand the State role in the remedy selection effort.
IX. Contact
For more information on the State Remedy Selection reform, the evaluation process, and this
report, please contact Kirby Biggs: (703) 308-8506, e-mail: Biggs.Kirby @ EPA.GOV
June 19,2002 OSWER 9375.3-07 Page 7
------- |