UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFF1C.T in
SOLID WASH-: AND IMI.Kdi NO'
RESPONSE
APR 26 OSWER 9375.2-12
MEMORANDUM
SUBJECT: Directive on Paying for Remedy Repairs or Modifications during the
State-Funded Period f Operation and Maintenance (O&M)
FROM: I^mesETWoolfefa, Director
Office of Superfund Remediation and Technology Innovation (OSRTI)
TO: Superfund National Policy Managers (Region I - X)
Office of Regional Counsel (Region I - X)
PURPOSE
The purpose of this memorandum is to transmit the final guidance entitled
"Directive on Paying for Remedy Repairs or Modifications during the State Funded Period of
Operation and Maintenance (O&M)."
This Directive presents the Office of Superfund Remediation and Technology
Innovation's (OSRTI) guidance on when it may be appropriate for the Agency to pay for remedy
repairs or modifications once a state has assumed responsibility for operation and maintenance
(O&M) at a Fund-lead Superfund site. It also provides some factors the Regions should consider
in evaluating site-specific circumstances and establishes a consultation process with OSRTI
when addressing certain remedy repairs and modifications.
This guidance provides information to the public and to the regulated community on how EPA intends to exercise its discretion in
implementing its regulations at con I animated sites. !l is important lo understand, however, thai this document does not substitute for statutes EPA
administers or their implementing regulations, nor is it a regulation itself. Thus, this document does not impose legally binding requirements on
EPA, states, or the regulated community, and may not apply to a particular situation based upon the specific circumstances. Rather, the document
suggests approaches that may be used at particular sites as appropriate, given site-specific circumstances. This guidance may be modified in the
future.
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BACKGROUND
Operational and Functional (O&F)
The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40
CFR§ 300.43 5 (f)(2), states, "A remedy becomes operational and functional either one year after
construction is complete, or when the remedy is determined concurrently by EPA and the State
to be functioning properly and is performing as designed, whichever is earlier."
For Fund-financed remedies, the O&F milestone generally guides when the Region
transfers the remedy to a state for O&M.
Operation and Maintenance
For Fund-financed remedies, CERCLA§104(c) requires states to pay for or assure
payment of all future O&M costs. Generally, prior to a Fund-financed remedial action, the state
also provides its assurance in accordance with CERCLA section 104(c)(3)(A) to assume
responsibility for operation and maintenance of implemented remedial actions for the expected
life of such actions. The state and EPA normally consult on a plan for operation and
maintenance prior to the initiation of a remedial action.
The NCP, 40 CFR§300.45(f)(l), describes O&M as the measures "initiated after the
remedy has achieved the remedial action objectives and remediation goals in the ROD (Record
of Decision), and is determined to be operational and functional, except for ground- or surface-
water restoration actions covered under 40 CFR§300.435 (f)(4)."2
Remedies that involve O&M generally include actions that may require CERCLA§121
five-year reviews (e.g., landfill caps; gas collection systems; ground-water containment; ground-
and surface-water restoration remedies, including monitored natural attenuation). A state's
O&M responsibilities generally should be designed to ensure that the remedy remains protective
of human health and the environment and may include the repair and replacement of all
damaged, worn and obsolete equipment and structures.3 EPA uses its appropriations for
oversight of a state's O&M activities, but not for conducting actual O&M.
2 Typically, ground- and surface-water restoration remedies, including monitored natural attenuation, would go
directly from remedial action into O&M upon construction of the treatment plant, monitoring system and the O&F
determination. However, the NCP 40 CFR §300.435(f){3), makes an exception for fund-financed remedies. It states
that treatment or other measures to restore ground- or surface-water quality to a level that ensures protection of
human health and the environment, and the operation of such treatment or other measures for a period up to ten
years after the remedy becomes 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, generally are considered O&M.
3 A more complete overview and description of the O&M planning and implementation process in Superfund can be
found in OSWER Directive 9200.1-37FS "Operation and Maintenance in the Superfund Program" (EPA 540-F-Q1-
004. May 2001).
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IMPLEMENTATION
In certain site-specific circumstances, the Agency may determine that it is appropriate to
pay or partially pay for certain repairs or modifications to operating remedies even though a state
has assumed responsibility for O&M.
When evaluating whether it is appropriate for the Agency to pay some or all of the costs
to repair or modify a remedy after a state has assumed responsibility for O&M, Regions should
consider whether:
* A latent design or construction defect in a remedy that affects protectiveness is
discovered after the construction has been completed and O&M has begun;
• A new, previously not identified contaminant of concern is discovered, which
necessitates a fundamental change to the operating treatment system chosen in the
Record of Decision (ROD); or
• An Applicable or Relevant and Appropriate Requirement (ARAR) change
requires a more stringent cleanup level than the one established in the ROD.
If the remedy is damaged by some form of natural disaster, then the State should be
prepared to make the necessary repairs. Federal disaster funds may be made available, if the area
has been declared a disaster under the Stafford Act.
FUNDING THE REMEDY REPAIR OR MODIFICATION
The Region may consider the use of EPA appropriations or Special Account money to
pay for a repair or modification to the remedy. If the Region proposes to use Fund money,
priority funding generally will be given to all remedy repairs or modifications with a total cost of
$250,000 or less; remedy repairs or modifications costing in excess of $250,000 generally will be
subject to National Risk-Based Priority Panel review and approval. The Remedial Project
Manager (RPM) should ensure that funding for any remedy repair or modification is coordinated
with the state with regard to its cost share.
HEADQUARTERS CONSULTATION
If a Region determines that it may be appropriate for the Agency to pay for remedy
repairs or modifications after a State has assumed responsibility for O&M, the Region must
consult with the Director of the Assessment and Remediation Division, OSRTL Information
requested for the consultation with OSRTI is provided below.
The documentation provided by the Region should:
1. Provide a brief background and description of the site;
2. Identify the type of remedy(ies) to be repaired or modified, the reason the repair or
modification is necessary, and the estimated cost and timeframe to repair or modify
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the remedy;
3. Discuss the rationale for using the Fund or Special Account money to make the
needed remedy repair or modification; and
4. Identify the proposed decision document to be used to document the repair or
modification.
This information should be sent to the Chief of the appropriate Regional Support Branch
in the Assessment and Remediation Division (ARD) of OSRTI. The information will be
reviewed by the ARD Director and appropriate Branch Chief. The purpose of this review is to
determine whether the proposed remedy repair or modification warrants the expenditure of Fund
or Special Account money. If the Region requests the use of Special Account funds to
accomplish the repair or modification to the remedy, the Office of Site Remediation Enforcement
(OSRE) may also be asked to review the site documentation submitted by the Region.
Upon completion of ARD's review, the findings will be provided to the RPM and
Regional management. If the ARD Director concurs with the Region's request to repair or
modify the remedy, the Region should document the action in an Explanation of Significant
Differences (ESD), as an amendment to the ROD, or in a letter to the file, as appropriate.
For questions regarding this Directive, please contact Rafael Gonzalez at 703-603-8892
or David Lopez at 703-603-8707.
cc: Susan Bodine, OSWER
Barry Breen, OSWER
Scott Sherman, OSWR
OSRTI Managers
Debbie Dietrich, OEM
David Lloyd, OBCR
Matt Hale,'OSW
Gail Cooper, FFRRO
Susan Bromm, OSRE
Dave Kling, FFEO
Mary-Kay Lynch, OGC
Joanne Marinelli, Superfund Lead Region Coordinator, US EPA Region 3
NARPM Co-Chairs
OSRTI Documents Coordinator
Federal Facilities Leadership Council
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