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OSWER Directive 9200.3-14-1G-W
Region 9
Region 10
Cincinnati Finance Center
Las Vegas Finance Center
Research Triangle Park
Finance Center
Yvonne Fong
David Wood
Carrie Williams
Scott Ryan
Gloria Owens
Betty Hamilton
415-972-3698
415-972-3709
206-553-1194
206-553-0285
919-541-0052
919-541-4280
B.F REGIONAL BUDGET COORDINA TORS
Location/Region
Region 1
Region 2
Region 3
Region 4
Region 5
Region 6
Region 7
Region 8
Region 9
Region 10
Name of Contact
Joan Buonopane
Courtney McEnery
Leslie Peterson
(Enforcement)
Robin-Faux Williams
Charlotte Whitley
Vincent Saunders
Helen Newman
Carlene Chambers
(Alternate)
Teri Hankins
Antoinette Singletary
(Alternate)
Lourdes Deppmeier
Jackie Easley (Enforcement)
Danielle Dunbar
Eugene Rainwater
(Alternate)
Lynne Kershner
E-mail
mcenei3U3™tnexi3)e|iig0v
Phone Number
617-918-1227
212-637-4295
212-637-4298
215-814-3133
404-562-8863
312-353-9077
214-665-6657
214-665-3181
913-551-7118
913-551-7491
303-312-7040
303-312-6758
415-972-3104
415-972-3217
206-553-6518
FY 12 SPIM
B-5
March 20, 2012
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OSWER Directive 9200.3-14-1G-W
This Page Intentionally Left Blank
March 20, 2012 B-6 FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
Superfund Program Implementation Manual FY 12
Appendix C: FY 12 Work Planning Memorandum
FY 12 SPIM March 20, 2012
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OSWER Directive 9200.3-14-1G-W
This Page Intentionally Left Blank
March 20, 2012 FY 12 SPIM
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^ UNiYHC PPOTtC PCM ;v>7£W''
WASHING'"ON, D.C. :0«C
OSWER: 9200.2-95
MEMORANDUM
SUBJECT:
FROM:
TO:
FY 2012 Superfund Remedial and Enforcement Work Planning
Robin H. Richardson, Director kLrO"*—v Vc.
Resources Management Division
Office of Superfund Remediation and Technology Innovation (OSRTI)
"""' - >''* ,
Monica Gardner, Director " 7 C-" •••. '.>• - - -"'' ^ •,•:-,.<>>-> ,:*"" /•./• .. •
Policy and Program Evaluation Division
Office of Site Remediation Enforcement (OSRE)
Superfund National Policy Managers, Regions 1-10
Regional Counsel, Regions 1-10
Purpose
The Superfund Remedial and Enforcement programs are joining together again to coordinate a unified
approach toward annual work planning with the regions. This memorandum identifies the scope and
schedule of FY 2012 work planning activities and contains a description of topics to be discussed by
the national program offices during the summer meetings and a schedule of due dates for data entry or
decisions.
This year's work planning memorandum contains four major content areas: Key Work Planning
Activities and Dates; Focus Areas for FY 2012; Agency Level Performance Measures; and Program &
Resource Management. The agenda for the work planning meetings may not be in this exact order, but
will be organized to meet each Region's needs and allow the discussion to flow and build upon topics
cumulatively.
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Contacts & Logistics
Please inform your headquarters regional budget coordinator in advance if you would like to discuss any
additional Region-specific issues during the work planning sessions. If you have any questions about
this memo, please call Art Flaks (OSRTf) at 703-603-9088 or Vincent Velez (OSRE) at 202-564-4972.
I. Key Work Planning Activities and Dates
Beginning July 2011, Headquarters will schedule work planning meetings to be held with the regions
during August and early September.
A1[RA fundingjteeds must be entered into CERCLIS for FY 2012
Activity
HQ schedules Region-specific work planning meetings
OSRE prepares extramural resource allocation for interim operating plan based on President's
request. ___________________ „______„ „__ __™_ , _
Date
Early July
Late Jyne
Regions enter initial commitments reflecting DRA approval for FY 2012 performance
measures into ACS
Regions enter preliminary CERCLIS planning data for Special Accounts
JuIyS
July 22
July 22
Regions enter target estimates and Pipeline resource planning in CERCLIS
HO and Regions conduct work planning meetings
Regions enter final commitments reflecting DRA approval for FY 2012 performance measures
into ACS (Unresolved commitment must be elevated for resolution to DRA/DAA)
Regions enter final FY 2012 RA planning data and summary level response targets into
CERCLIS
Regions enter final FY 2011 EOY GPRA accomplishment data into CERCLIS
Regions enter final FY 2011 non-GPRA EOY accomplishment data into CERCLIS
Regions make final updates to their FY 2012 Special Account plans
"OSRTI develops Initial FY 2012 Ongoing RA Funding Plan "
OSRTI issues memorandum initiating Remedial unliquidated obligations review
HQ and Regions concur on the final FY 2012 regional performance commitments
HQ/RegioRS elevate any unresolved FY 2012 Performance commitments to OCFO for dispute
resolution. NPMs and regions send an email to OCFO indicating that final performance
commitments entered in Measures Centra! have been approved by DRAs and DAAs and that
DRAs and DAAs are aware of unresolved FY 2012 commitments^ __ __ _ _____
Regions enter final FY 2012 Pipeline Allocation target data and detail level site-specific
t response targets
i Regions submit unliquidated obligations review results to OSRTI
OSRTI runs draft Pipeline Operations Site Allowance allocation model
EPA posts final FY 2012 GPRA targets on EPA Quickplace website
ACS is locked to prevent further adjustments to FY 2012 commitments
4 days before
your Region's
___ meeting _
August 1 -
September 8
October 3
October 7
October 7
October 15
October 17
Mid-October
Mid-October
October 21
October 28
November 7
Mid-November
Mid-November
November 18
November 28
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OSRTI issues deobligation targets for FY 2012
OSRTI determines FY 2012 Regional Pipeline Operations Site Allowance Allocations
Regions submit initial FY 2012 Deobiigation Plans to HQ
FY 2012 Check in, FY 2013 plans, FY 2014 outyear projections
OSRE issues call to Regions for submission of additional extramural funding requests
OSRE submits reprogrammirtg of third quarter allocation based on regional requests
Mid-December
Pending
Appropriation
Mid-January
February
Late March
Late April
II. Focus Areas for FY 2012
This section provides key focus areas for discussion during the summer work planning meetings that
are new or have a change in emphasis.
A. integrated Cleanup Initiative
OSWER is well into the second year of the three-year Integrated Cleanup Initiative (ICI) announced on
March 12, 2010, by the Assistant Administrators of OSWER and OECA. The goal is to "better utilize
EPA's assessment and cleanup authorities, in an integrated, transparent and accountable fashion, to
address a greater number of contaminated sites, accelerate cleanups, and put those sites back into
productive use while protecting human health and the environment." The ICI is organized into four
objectives: 1) Starting Cleanups, 2) Advancing Cleanups, 3) Completing Cleanups, and 4) Performance
Metrics,
During the first year, significant progress was made in these areas by both the Superfund remedial and
enforcement programs and more work is planned for FY12,
The actions for the Enforcement and Remedial Programs under the four objectives are outlined below:
1. Enforcement Program
The Superfund enforcement program identified five actions that support the objectives of the ICI
(Also see Attachment A - SEALS Major Focus and Reporting Areas for FY 2012.) For purposes of
work planning, OSRE will provide a status on each action. In addition, we will discuss how the Regions
will be involved in meeting the obligations related to the actions with deliverables planned in 2012,
a) Objective I - Starting Cleanups
i. Objective 1,3: Process for early identification of responsible parties to support changes
in site assessment, NPL listing and early enforcement activities. OSRE is evaluating and
analyzing existing regional and headquarter resources and training needs for PRP search
activities and will issue recommendations, if any, for changes in those areas. Also, OSRE
is evaluating opportunities for accelerating PRP search activities to maximize PRP
performance of the work earlier in the pipeline and will revise national PRP search
guidance, policies, and/or performance measures, as appropriate, to reflect any
recommended changes.
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b) Objective 2 - Advancing Cleanups
ii. Objective 2, II, A - Expedite response action by holding all parties accountable to
negotiation timeframes. OSRE has developed a new CERCLIS report that includes the
full RD/RA negotiations pipeline - from planned Records of Decisions fRODs) and
upcoming or ongoing RD/RA negotiations. The report will be used at regional dockets,
OSRTI and DOJ bi-weekly meetings, and other regional visits to better track compliance
with the Interim Policy on Managing the Duration of RD/RA Negotiations. Also, an
evaluation of the Interim Policy is currently underway to explore its effectiveness and
possible actions that may be necessary to improve the process. In addition, as part of the
work planning process, we will discuss the status of planned RA negotiation starts and
completions and identify major obstacles preventing the completion of the negotiations,
for those situations where negotiations will exceed 120 days from issuance of SNL.
iii. Objective 2.1 l.B: Expedite response action by holding parties accountable to scheduled
cleanup commitments. OSRE has established and analyzed baseline data on the status of
PRP compliance with work obligations under enforcement instruments. A memorandum
is under development encouraging Regions to consider unilateral EPA modification of
deficient PRP deliverables as a tool to limit cleanup delays. A substantial noncompliance
(SNC) tracking measure is under development supporting timely and appropriate EPA
enforcement responses to bring responsible parties into compliance with enforcement
instruments. It should be ready for implementation by the end of FY 2011. In FY 12,
compliance trends and existing procedures for responding to SNC will be evaluated and a
compliance strategy will be developed, if appropriate,
iv. Objective 2.12, A: Promote strategy for early enforcement at removals. A new
"Enforcement First5' policy is pending that addresses completing the preliminary PRP
search prior to initiating the non-emergency removal, A Removal Enforcement
Workgroup was formed which includes removal managers, enforcement managers, and
attorneys to share information on effective removal enforcement approaches.
v. Objective 2.12.B: Ensure enforcement authorities are used, "when appropriate, to
maximize PRP performance of remedial investigations/feasibility studies. OSRE is
currently reviewing site-specific data and information related to EPA's decision to use
the Trust Fund to perform RI/FS at a site to evaluate whether EPA's current approach for
ensuring "enforcement first" for Rl/FS is effective at maximizing PRP performance of
the RI/FS. Once complete, a recommendation will be made to continue the current
approach or develop and implement improvements to further promote PRP-Iead RI/FSs.
During the work planning meetings, we would like to discuss each Region's list of
potential Fund-lead RI/FS starts for FY 2012 and each Region's strategy for completing
and documenting the preliminary PRP search prior to using the Fund to perform the
RI/FS. We would also like to review Regional FY 2011 decisions to use the Fund for
Rl/FS.
2. Remedial Program
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During FY 2012, OSRTI will continue to have substantial work under the four JCI objectives.
This work is highlighted below,
a) Objective I - Starting Cleanups
i. Objective 1.5A-E: Strengthen CERCLA 's site assessment and listing processes to
improve effectiveness. OSRTI will continue its work to improve the effectiveness of site
assessment and the listing process, including:
A. Improve the effectiveness of the current site assessment process under CERCLA
B. Explore opportunities to revise the Hazard Ranking System and related policies
C, Improve the transparency and effectiveness of the NPL listing process
D. Improve the transparency and effectiveness of the NPL-Caliber Approach
(formerly Superfund Alternative Approach),
ii. Objective 1,6: Evaluate the Superfund consultation process and policy far States, Tribes,
Local Governments, and Communities, OSRTI will continue its work to assess regional
practices for involving local communities, including states, local governments, and tribes
during the site assessment process.
b) Objective 2 - Advancing Cleanups
in. Objective 2.4A: Improve efficiency of administrative and contracting processes. The
Superfund program will be led by a joint OSWER, OARM team to review contracting
strategy while incorporating OMB's recent memoranda related to improvements and
efficiencies in the acquisition process.
iv. Objective 2.6A: Improve administrative efficiency of administrative grant and
contracting processes. Over the past few months, OSRTI has been leading an effort to
review our current remedial acquisition efforts and plan for the next five to 10 years, A
workgroup consisting of HQ and regional program personnel as well as regional and HQ
contracting staff (including the Office of Small Business Programs) is developing an
updated strategy for the remedial program to supplement the Contracts 2010 initiative.
The Contracts Management Branch in OSRTI will be coordinating the implementation of
the Contracts 2010 initiative as it applies to the Superfund remedial program. OSRTI
anticipates that guidance for implementing changes will be developed in conjunction with
Regional project officers and contracting officers and incorporated into standard
operating procedures for remedial contracting. In addition, OSRTI plans to conduct
Regional reviews of remedial contracting processes in order to foster cross-regional and
cross-program communication and sharing of best practices. OSRTI will discuss the
reviews further during work planning and will solicit ideas and participants for review
teams.
v. Objective 2.9: Streamline, as appropriate, Superfund remedial hoards and panels.
OSRTI will complete its work to evaluate opportunities to improve the functioning of the
National Remedy Review Board and the Contaminated Sediments Technical Advisory
Group and begin implementation of new protocol, including any increased opportunities
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for greater community and tribal input for consideration during deliberations.
vi. Objective 2.9: Evaluate opportunities to improve the timeliness, transparency, and
quality of Remedy Decision Documents at Superfvnd sites. OSRTI has convened a
Regional/HQ group to evaluate existing guidance and process, identify the need for
additional guidance based on emerging issues, evaluate opportunities to expand
community and tribal involvement, and review ways to streamline HQ's consultation
requirements for decision documents.
vii. Objective 2.12: Evaluate opportunities to provide greater support in optimizing cleanup
of Superfund sites, OSRTI will continue to work with EPA regions to finalize a national
optimization strategy and provide technical support mechanisms for use in conducting
site optimization work.
viii. Objective 2.12: Accelerate and improve the management of Superfund remedial projects.
OSRTI will support regions in implementing pilot projects to explore new ways to
accelerate or otherwise improve remedial project management at Superfund sites. In
addition, regions will continue to implement and evaluate the newly applied Best
Management Practices adopted from other regions. Finally, OSRTI will continue its work
with regions to strengthen Superfund remedial site-related technical support.
c) Objective 3 - Completing Cleanups
ix. Objective 3.3A-B: Improve consideration of institutional controls and improve
community understanding of five-year reviews. OSRTI will continue to:
A. Improve consideration of institutional controls at sites; and,
B. Improve community understanding of five-year reviews.
x. Objective 3.7: Explore opportunities to achieve Human Exposure under Control at NPL
sites. OSRTI will continue to assess exposure conditions and site cleanup progress at
Human Exposure Insufficient Data (HE ID) sites; and, in consultation with the National
Environmental Indicators Workgroup continue data analyses to identify areas where
increased focus may move sites out of HE ID. OSRTI will continue to explore region-
specific 5-Year Review planning data as an indicator of the potential for site fallback out
of the Human Exposure Under Control category,
d) Objective 4 - Evaluate Performance Metrics and the Effectiveness of the ICI Activities
XL Objective 4,2: Measure the effectiveness of the ICI activities and report annually on ICI,
The Center for Program Analysis (CPA) will work with OSRTI and others to annually
review and report publicly on the progress made on all commitments in the ICI. In
addition, an effort is underway within OSRTI to streamline and improve the Site Profile
pages for all NPL and SAA sites. The content presented on the individual pages is being
reviewed in concert with the regional site profiles in an attempt to re-engineer both pages
into one and present a unified One EPA message. OSRTI in conjunction with the regions
will work together to develop model content to be used as the format on all profile pages.
-------
Once completed, the model content will communicate a cohesive message of how
Superfund sites advance through the pipeline. The site profile pages will also be a
platform for conveying individual site progress on key program measures internally and
externally.
B. Community Engagement Initiative
In December 2009. the Assistant Administrators of OSWER circulated for public comment a draft
Proposed Action Plan for OSWER's Community Engagement Initiative (CEI). The CEI Implementation
Plan was released in May, 2010. The CEI seeks to enhance OSWER and regional office' "engagement
with local communities and other stakeholders (e,g.} state and local governments, tribes, acadernia,
private industry, other federal agencies, non-profit organizations) to help them meaningfully participate
in government decisions on land cleanup, emergency preparedness and response, and the management
of hazardous substances and waste." The CEI is organized into three goals:
> Develop transparent and accessible decision-making processes to enhance meaningful
community stakeholder participation;
> Present information and provide technical assistance in ways that will enable community
stakeholders to better understand environmental issues and participate in an informed way during
the decision-making process;
> Produce outcomes that are responsive to stakeholder concerns and arc aligned with community
needs and long-term goals to the extent practicable
The actions for the Enforcement and Remedial Programs under the three goals are outlined below.
Additional information about the CHI including detailed descriptions and specific actions can be found
on the web at Mipj^vy^-.vjM^
1. Enforcement Program
The Superfund enforcement program has identified the following action that supports the
objectives of the CEI. An update on the progress of these actions will be provided during work
planning.
a) Objective 2 — Enforcement Processes
/. Action 5 - Review and analyze current enforcement policies and activities to determine
how to engage communities affected by enforcement actions while still being consistent
with ethics rules, federal rules and applicable laws:
o Evaluate public access to relevant enforcement information and determine steps to
implement the findings,
o Take steps to increase public access to information relating to enforcement
activities under RCRA and CERCLA.
o Review existing guidance and policy materials to determine what additional
documents, if any, are needed to better explain the enforcement processes under
RCRA and CERCLA,
o Prepare a compendium of best practices.
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2. Remedial Program
OSRTI has been assigned as leads to specific actions under each of the three CEI goals, and
many of the CE! actions will require OSRTI work effort to complete.
a) Objective 1- Decision-making Processes
r. Action I-OSRTI will evaluate critical decision-making processes and guidance to
determine if changes are warranted to strengthen our community involvement efforts,
b) Objective 3 - Technical Assistance
il Action 7- OSWER evaluated the EPA technical assistance programs in FY1J. OSRTI
plans lo develop a guide for conducting a technical assistance needs assessment, and
explore opportunities to partner with outside organizations that provide technical
assistance,
c) Objective 4- Risk Communication
Hi. Action 11- OSRTI will deliver a specialized risk communication course to Regional staff
d) Delivery of Information
iv. Action I3b- Evaluate and Improve Delivery of Information: Superfund Information
Repositories. OSRTI will implement a series of recommendations that will allow for the
establishment of electronic information repositories.
e) Objective 6 - Community Engagement Training
v. Action 14 - OSWER and OSRTI will develop an OSWER-Wide/Regional Community
Engagement Training Program for EPA OSWER and Regional Employees
C. FY2011 - FY2015 Strategic PBan
The Agency has a new Strategic Plan for FY2011 - FY2015. The implementation of the plan was
delayed in FY 2011 due to the delay in passage of the FY 2011 budget. The current plan contains some
key changes for the Enforcement and Remedial Programs, highlighted below. The FY2011 - FY2015
Strategic Plan can be reviewed at hjijoi^Vww.^^
1. Enforcement Program Shift to Goal 5
The new Strategic Plan includes revisions lo the five major goals. Most notably, the Superfund
Enforcement program shifted from Goal 3 - Cleaning up Communities (formerly known as Land
Preservation and Restoration) to Goal 5 - Enforcing Environmental Laws. Within Goal 5, Superfund
Enforcement is under Objective 5.1 which states: Pursue vigorous civil and criminal enforcement that
targets the most serious water, air, and chemical hazards in communities. Assure strong, consistent, and
effective enforcement of federal environmental laws nationwide.
2, Remedial Program Shift to Objective 3.3
The new Strategic Plan moves the Superfund Remedial Program from Goal 3, Objective 2 to
Goal 3, Objective 3. Goal 3 is now Cleaning Up Our Communities and Advancing Sustainable
8
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Development. Objective 3 is to Restore Land, This programmatic objective is the same as in previous
years, but regions should be aware that the objective number in the Strategic Plan has changed.
D. Tailored Oversight
On December 22, 2006, "Using RCRA's Results-Based Approaches and Tailored Oversight Guidance"
was issued jointly by OSRE and OSRTI (see the following URL:
http:/Mww.epa.goy/compliancefe The
guidance suggests that Superfund program managers consider tailoring the oversight process
requirements to site-specific circumstances, so that the Agency and the PRPs may more efficiently and
cost-effectively manage site cleanups.
Using tailored oversight may provide substantial cost savings in the total costs expended for a site.
Accordingly, the Agency should reassess the level of oversight it performs on a site-specific basis and
make adjustments where appropriate applying the principles provided in Section III of the guidance
when developing oversight plans with PRPs for their respective Superfund sites.
In addition, there is another guidance titled the "Interim Guidance on Implementing the Superfund
Administrative Reform on PRP Oversight," OSWER Directive #9200,0-32P, and dated May 17, 2000.
See: httpiyAwww_.ej>a.gov/superfund/pro This document emphasizes the
need for open dialogue between EPA and PRPs to foster improved relationships and to help achieve
appropriate levels oversight. For instance, EPA cover letters for oversight bills should provide PRPs
with the ability to meet with the regions to discuss any concerns related to their oversight bill.
Pursuant to the Interim Guidance and the cover letter provision, OSRE will be asking each Region the
following questions:
I. Are you familiar with the guidance?
2. if so, what steps have you taken to implement the guidance?
3. How often have PRPs requested meetings to discuss their oversight concerns?
4, How often has the Region met with PRPs to discuss their oversight costs?
5. Were these meetings helpful and did they result in any formal modifications to the PRP oversight
plans and corresponding costs?
E. American Reinvestment and Recovery Act (ARRA)
The Superfund Remedial Program continues to work to expend the S578 million allocated to site work
in Recovery Act funding in an efficient and transparent manner, OSRTI will review Regional progress
toward meeting programmatic goals for expending ARRA funds., and meeting reporting requirements.
Regions will have an opportunity to discuss any difficulties they are having with accomplishing stated
goals under the Recovery Act as well as individual site progress.
F. Contracts Laboratory Program
In the 3rd and 4th quarters of FY 2011, the funding approach for the Contract Laboratory Program (CLP)
changed dramatically due to budgetary realities and Regions were given an allocation to use for CLP
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services. The 3rd & 4th quarter allocation amounts were agreed upon through the Analytical Services
Advisory Committee (AS AC). The AS AC will also determine the allocation methodology for FY 2012.
Since regions now have a fixed CLP budget, extra planning and tracking must take place to efficiently
and effectively use their funds. Each Region has a CLP Regional Sample Control Coordinator (RSCC)
to assist remedial project managers in obtaining sample analysis through the CLP. Close communication
and coordination between Superfund staff and CLP RSCCs is required to ensure adequate CLP fiinds are
available when sample analysis is needed.
In order to optimize the use of available CLP funds, regions should consider the following when
scheduling CLP work:
* Planning sampling work far enough in advance to allow for use of 21 -day turnaround times
(TATs), 21-day TATs are generally less costly than 7-day and 14-day TATs.
• Using special account funds for analysis at a site with a special account. Standard procedures
have been developed to apply these funds toward CLP work and track the funds accordingly.
* Evaluating sampling plans to ensure the minimum number of samples are taken and analyzed to
inform needed site-specific decisions.
Regions can supplement the CLP allocation with other funds if needed. The Regional CLP RSCC can
coordinate this with Analytical Services Branch staff as required.
Information on the CLP, including Regional contacts, can be found at
^^LJSM^ilY^H^^^
ill. Agency Level Performance Measures
As in previous years. Headquarters and the regions will negotiate regional targets for each ACS
performance measure for FY 2012 through a formal bidding process that is captured in OCFO's ACS.
This process culminates in the development of final regional commitments that have been agreed upon
by both Headquarters and each Region. These individual commitments are developed against the
backdrop of the Agency's 2011-2015 Strategic Plan. Detailed definitions and information requirements
associated with these measures are in the FY 2011 Superfund Program Implementation Manual (SPIM),
which is available at !nliKu}s\:';^:QD4oi^
In May 2011, Headquarters initiated the ACS commitment process for FY 2012 by finalizing the text of
all performance measures in ACS and by entering the value of zero in the "Proposed Bid" field for each
performance measure.
Headquarters will use ACS reports to confirm regional GPRA targets during work planning meetings.
Draft FY 2012 Regional Commitments are due and must be entered into ACS by July 8. Headquarters
will discuss draft regional commitments during the annual work planning sessions and will work with
the regions to try to ensure that the cumulative regional commitments meet the national commitments
10
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for FY 2012. In agreeing to a specific regional commitment for each of its performance measures, each
Region commits to accomplishing the agreed-upon results in FY 2012.
By October 3, Regions will enter their final FY 2012 commitment into ACS for all performance
measures. Headquarters and Regions must agree on the final FY 2012 regional commitments for all
performance measures by October 21. Finalized commitments must be entered into ACS by October
28. Unresolved performance commitments will be elevated for resolution to the DAA/DRA during the
week between those two dates.
The Superfund Remedial program will rely on the SCAP-15 GPRA Measure report and the SCAP 14
Accomplishments report to report FY 2012 measure accomplishments while the Enforcement Program
will rely on the SCAP 14 Accomplishments report and the ENFR 67 report for FY 2012 GPRA measure
accomplishments. All commitments and the associated resources will be subject to review during the
annual midyear reviews.
Finally, in FY 2012, OSRT1 will continue to track and report the measure status at sites with Superfund
Alternative Agreements (SAA). Accomplishments at these sites will be tracked in the SCAP 15 reports
devoted to such sites.
1. EnfofcementJPrQgram GPRA Measures
a) Existing GPRA Measures
Superfund Enforcement Program GPRA Measure
Maximize PRP participation by reaching a settlement or taking an
enforcement action by the time of the RA start at nonfederal Superfund sites
(with RA starts during the fiscal year) with viable, liable responsible jjarties
Address past costs at sites with Statute of Limitation (SOL) eases and
unaddressed past Superfund costs greater than or equal to $200,000
By 2015, obtain commitments to clean up 1.5 billion cubic yards of
contaminated soil and groundwater media as a result of concluded CERCLA
arid RCRA corrective action enforcement actions
ACS Code
OSRE-01
GSRE-02
FY 2012
National
Target
99%
100%
300M
cu yds
Under the new strategic plan, the Superfund enforcement program will continue to pursue the
"Enforcement First" strategy (also see Attachment A - SEALS Major Focus and Reporting Areas for
FY 2012). Under Goal 5 of EPA's Strategic Plan (Enforcing Environmental Laws), one of the
Enforcement's GPRA goals is to maximize PRP participation by "reaching a settlement or taking an
enforcement action by the time of the remedial action start at 99% of non-federal Superfund sites (with
RA starts during the fiscal year), including NPL sites and sites with Superfund Alternative Agreements,
that have known viable, liable parties." There has been no change to this measure.
In addition to ensuring PRP participation in conducting or funding cleanup, another objective of the
Enforcement Program under Goal 5 of the Agency's Strategic Plan is to recover costs from PRPs when
EPA expends Trust Fund money. The goal here is to "address all costs at sites with SOL cases and
unaddressed total past Superfund costs equal to or greater than $200,000." This goal addresses al! sites
11
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funded with Superfund dollars, not just Superfund sites. There has been no change to this measure,
As part of the Goal 5 sub objective. Support,Qemis^_yp_QuijCginmunitie_s, OECA added a new GPRA
measure which applies to the Superfund Enforcement and RCRA Corrective Action programs.
By 2015, obtain commitments to clean up 1.5 billion cubic yards of contaminated soil and groundwater
media as a result of concluded CERCLA and RCRA corrective action enforcement actions.
The OECA GPRA measure which was new in FY 2011, is a national measure with a target of 300
million cubic yards per year. As such, the regions are not required to post targets in the Annual
Commitment System. Regional ICIS data entry staff are responsible for entering VCMA information
into OECA's ICIS database. Further information on calculating VCMA may he found in the "Final
Methodology for Estimating Superfund and RCRA Corrective Action (CCDS) Environmental Benefits
12-12-03."
b) New Enforcement Measures
In alignment with the Assistant Administrator's external goal of pursuing pollution
problems that matter to communities, OSRE is currently conducting the Site Cleanup
Enforcement Performance Measures Evaluation (SCEPME) Project to better describe,
characterize and analyze performance measures with the objective of enhancing the portfolio of
Agency site cleanup enforcement performance measures. This process will include a review of
not only GPRA measures but also performance measures from a variety of accountability
systems including senior management measures, key management measures. Annual
Commitment System measures and others.
Site cleanup enforcement performance measurement evaluation can include, in addition to other
possible criteria, greater coverage and breadth for site clean up enforcement measures in terms of
inputs, outputs, behavioral outcomes, environmental outcomes through pilot projects, models and
case studies. Examples of new measure categories could include but are not limited to: refined
pollutant loading measures (e.g., hazardous substance pounds or pound equivalents), exposure
measures (e.g., groundwater wells protected), and economic metrics (property value appreciation
of adjacent properties to remediation sites).
Under the current SCEPME proposal, three new performance measures proposals should be complete by
the end of Fiscal Year 2011. At least one of these will have either a case study or pilot approved or
under way. Moreover, tool development supporting the development of more outcome oriented
measures will complement these efforts. OSRE is currently working in conjunction with the Office of
Compliance to develop a draft calculator to assist in estimating hazardous substance loadings from the
Volume of Contaminated Media Addressed.
2. Remedial ProgramJPerformanjce Measures
In FY 2012, the Remedial Program will continue to set commitments and report progress against
all of its current six ACS measures three of which are GPRA: Remedial Site Assessment Completions,
RA Project Completions, Human Exposure Under Control, Groundwater Migration Under Control,
12
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Sitewide Ready for Anticipated Use and Construction Completions. The proposed FY 2012 national
targets for each of these measures are included in the following table:
Superfund Remedial Program Priority Performance Measure
Remedial Site Assessment Completions
Remedial Action Project Completions
Construction Completions (CCs)
Human Exposure under Control (HEUC)
Ground water Migration under Control (GMUC)
Sitewide Ready for Anticipated use (SWRAU)
GPRA
V
^
V
ACS Code
122
131
141
151
152
sio
Proposed FY
2012 National
Target
800
130
22
10
15
65
IV. Program and Resource Management
A. Program Management
1. Remedial and Enforcement Targets
During work planning, OSRTI and OSRE will confirm the start and completion targets for the
Fund- and PRP-!ead actions listed below consistent with the SPIM guidance
(http;//www',epa.gov/superfund/ac-tioa/process/spimlO/pdfs/FY! 0_SPIM.pdf,). We will use the
Superfund eFacts webpage (Charts/NPL/Perforrnance Analysis) based on the SCAP 14A logic that
shows Targets, Plans and Accomplishments for the prior three fiscal years, as well as the future four
fiscal years. With the exception of special accounts,, this means that there will not be a specific pull date
that all regions must have their CERCLIS numbers updated by. Instead, regions should make sure that
CERCLIS is up to date three days prior to their scheduled meeting, in order to allow Headquarters
time to pull the most up to date numbers and prepare for the meetings,
i. Remedial Site Assessment Decisions
ii. RJ/FS Starts
iii. NPL Decision Documents (RODs, ROD Amendments, ESDs, Action Memos for NTCR)
iv. RD/RA Negotiation Starts and Completions
v. RD Starts and Completions
vi. RA Starts and Completions
vii. Five-Year Reviews
viii. NPL Deletions
ix. Past Costs Addressed
Regions should target those FY 2011 Fund-financed RA start projects for which they have entered
planned obligation data pursuant to the section on Planning Estimates for Remedial Construction.
Final QA of the summary level target data must be completed in CERCLIS by October 7, followed by
site-specific detail level targets on November 6.
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2, Five-Year Reviews
Five-Year Reviews (FYRs) continue to be a primary focus for ensuring remedy protectiveness
during post construction. In FY 2012, over 224 statutory and policy reviews and 28 addendums are
anticipated. Completed reviews are posted on the national FYR websites at:
!iUPJ^>i>V^,:?ri">:&9y^ ar>d summarized in the annual
SuperfundFive-Year Review Report to Congress.
OSRTI continues to work with the regions to improve five-year review data quality. The regions are
responsible for ensuring FYR planning information (due date, FYR type, and triggering action) is
accurate in CERCLIS. The results of FYRs (completion date, issues/recommendations, and
protectiveness statements) should be entered in CERCLIS within 10 working days of the signature date
of the FYR. In addition, branch chiefs in the regions should update the status of all outstanding issues
and recommendations in CERCLIS at a minimum of twice a year or as events warrant. As part of the
discussion on response targets, Headquarters will confirm the regions' targets and the accuracy of the
five-year review CERCLIS planning data,
3. Institutional Controls
Headquarters will continue to pursue discussions with the regions on 1C evaluation and
implementation issues and support their data entry efforts into the Superfund Enterprise Management
System (SEMS).
Headquarters and regional enforcement personnel are providing key support as the regions populate data
in SEMS, and report the status of CC sites to the public via the internet. As we continue to implement
the Strategy and populate the SEMS database, regions may determine that additional information or
work is needed at sites to effectively review and/or implement ICs. For sites where PRPs have entered
into consent decrees, the regions should use the processes and examples provided in the March 2006
memo entitled, Enforcement First to Ensure Effective Institutional Controls at Superfund Sites.
Additionally, the regions should incorporate the revised 1C provisions included as part of the 2009
revisions to the model CERCLA RD/RA Consent Decree (CD) and similar revisions to other model
enforcement documents. As part of their Sitewide Ready for Anticipated Use determinations, regions
should consider whether all ICs called for in the decision documents are in place and continue to be
effective. Finally, regions should continue to improve EPA's capacity to address the challenges of using
real property based ICs (e.g., implementing restrictive covenants and negative easements, and acquiring
title evidence for monitoring and compliance assurance purposes) at sites by conducting training on real
property law and procedure.
4, Site Assessment/NFL Listing
Regions must work toward meeting the FY 2012 proposed commitment of 800 remedial site
assessment completions and be prepared to discuss their contribution toward meeting this cumulative
goal. Assessment activities and outcomes must be tracked in CERCLIS as prescribed in the Superfund
Program Implementation Manual (SPIM) Appendix A.
Headquarters will measure regional progress on sites still needing assessment with special emphasis on
sites over one year old without any assessment started, and (as required by CERCLA section 106{b))
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sites over four years old without a listing decision. A listing decision is defined as a site assessment with
a No Further Remedial Actions Planned (NFRAP) decision, or with a decision to study/cleanup a site
via the NPL or a non-NPL cleanup approach. Regions should consider these assessment workloads
when planning FY20I2 assessment work; however, the primary goal within the assessment program
continues to be assessing worst sites first.
Regions should work in a collaborative manner with other waste cleanup programs (e.g., removal,
Brownfields, RCRA) to manage the identification and distribution of new sites to the appropriate
cleanup program. Regions should follow state and tribal consultation procedures as described in the
statute, NCP and current guidance, and document work-share agreements covering NPL-caliber sites
being remediated by states or tribes using a non-NPL approach. Regions should consult with the lead
agency on an annual basis to review progress at each NPL-caliber site covered under a work-share
agreement.
NPL Listing is one of several approaches for addressing sites where assessment indicates remedial
study/cleanup is needed to address human health and/or ecological risks. Once a site is determined to be
NPL-caliber and a decision has been made that the Federal Superfund program should manage the site
cleanup, regions should apply a strong initial presumption in favor of listing on the NPL.
B. Resource Management
1. Enforcement Resources
Starting in FY 2012, if approved by Congress in an enacted budget, Superfund Enforcement will
shift from Goal 3 to Goal 5, to better align the Agency's enforcement program measures and resources.
The new program code will be 501EC7.
The FY 2012 President's Budget Request includes reductions of approximately $800,000 to the
Superfund enforcement extramural resources budget. An initial allocation of $4.8M in FY 2012
extramural dollars has been prepared and will be discussed during the work planning sessions. This
represents approximately 60% of requested levels.
As in prior fiscal years, extramural resources will be directed to support new site-specific enforcement
activities while also recognizing need based on historical usage. For an explanation of the allocation
process, please refer to Chapter 2 of the Superfund Program Implementation Manual (SPIM) FY11,
section II.D.5 at
b!!Gl//^:DY'.£ES4L^
2, Remedial Resources
OSRTI expects possible budget reductions in FY 2012 since the FY 2012 President's Budget
Request contains a roughly $31 million reduction to the Superfund Remedial Program. If continuing
resolutions are adopted at the beginning of the fiscal year, OSRTI will work with the regions to ensure
that critical first quarter funding needs are addressed. First quarter resource needs should be highlighted
during work planning discussions. In FY 2012, as in previous fiscal years, Headquarters will adjust
resource allocations throughout the year based on actual end-of-FY 2010 accomplishments, site-specific
circumstances, final appropriations, carryover funds, and deobligations.
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a) Pipeline Operations Site Allowance (Pipeline SA)
For FY 2012 work planning, we will continue to collect Pipeline action target information
consistent with our standard implementation of the Pipeline allocation methodology. Due to possible
budget reductions in FY 2012, regions should plan to receive between 85-90% of the resources they
received in the Pipeline SA for FY 2011. OSRTI will use FY 2012 SCAP I4A site-specific detail
targets in CERCLIS as of November 8» 2010, for the following actions to run the Pipeline Allocation
Methodology Model, which is unchanged from FY 2011:
I. Fund RI/FS Starts
ii. RP RI/FS Starts
ili. Fund RD Starts
iv. RPRD Starts
v. RP RA Starts
Site-specific targets entered into CERCLIS in November most be consistent with the summary targets
agreed upon during the work planning meeting (these summary targets are to be entered into
CERCLIS by October 7 — see section of this memo on Remedial and Enforcement Targets),
OSRTI will issue a draft allocation in mid-November and a final allocation once an Agency Operating
plan is established.
b) Ongoing Construction Projects
For work planning, Ongoing Construction Projects include currently ongoing Fund-lead RAs,
new and ongoing Long Term Remedial Actions (LTRAs), Five-Year Reviews, currently ongoing Fund-
lead removal actions (RVs) funded through the Remedial program budget, and any ongoing or planned
Enforcement Fairness projects thai have been agreed to by OSRTI and OSRE.
By July 22, regions must update CERCLIS with revised project schedules and associated planned
obligations for a three-year period (FYs 2012-2014), by quarter, using the planned Alternate (ALT)
planning status code for Fund resources, Regions should assess whether special account and Superfund
State Contract (SSC) resources are available to fond a particular project and should enter planning data
into CERCLIS accordingly.
Planned obligations pursuant to annual funding agreements negotiated between OSRTI and the regions
must use the planned Alternate (ALT) planning status code. Additional estimates exceeding a
funding agreement must use the contingency (CON) planning status code for current and future
years.
Based on work planning discussions, regions should update planned obligation data in CERCLIS by
October 7. OSRTI will use the October data to verify work planning understandings and to develop an
Initial Ongoing RA Funding Plan in mid-October, which OSRTI will use as a guide to allocate quarterly
resources among the regions. As OSRTI reprograms funds per the ongoing funding plan, regions should
update accordingly.
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c) Mew Construction Projects
For work planning purposes, New Construction Projects include new remedial actions or
removal actions funded through the Remedial program budget.
As with ongoing construction projects, by July 22, regions must update CERCLIS with revised project
schedules and associated planned obligations for a three-year period (FYs 2012-2014), by quarter, using
the planned Alternate (AIT) planning status code for Fund resources. Regions should also assess
whether special account and Superfund State Contract (SSC) resources are available to fund a particular
project and should enter planning data into CERCLIS accordingly. Headquarters plans to send a separate
memorandum asking regions to identify "enforcement fairness" construction projects and resource
estimates for FY 2012 by this same date, where possible.
Regions should enter planning estimates only for those projects that will be ready to start construction in
FY 2012, and:
a) have been previously ranked through the National Priority Panel process and did not receive
assurance of funding as of the end of July 2011 (by October 7, regions must update planned
obligations for ranked projects that did not receive funding in FY 2011); or
b) will be ranked through the National Priority Panel process during FY 2012; or
c) will be completely financed by special accounts or a Region's 25% share of recertified
resources.
d) Special Accounts
Special account management remains a high priority for the Agency. The regions have done an
excellent job in planning uses for remaining resources, and we must continue to build on this success.
Special account available balances in CERCLIS will be updated from the Financial Data Warehouse
(FDW) on July I, and regions should enter planning information by COB July 22. Headquarters will
pull CERCLIS data on July 25 in preparation for summer work planning discussions. Headquarters will
contact regions during the week of July 18-22, to schedule work planning discussions for special
accounts between August 29 - September 2. During work planning meetings, Headquarters review
questions will focus on how special account existing balances are being used to achieve progress in site
cleanup and on special accounts of several types;
i. with unassigned or negative unassigned balances (especially those which have large dollar
amounts or percentages of unassigned remaining balances)
ii. which have FY 2011 and/or FY 2012 planning data for Fund resources;
iii. with "Other" planning estimates or funds planned as contingencies;
iv. with opportunities to reclassify and/or transfer resources to the Trust Fund;
v. where zero funds have been obligated;
vi. with past planned closure dates.
Special account available balances will be updated on October 1, and regions will make final updates to
their plans by October 14. Headquarters will pull CERCLIS data on October 17 for reports to senior
managers on plans for using special account resources and for use in the FY 2013 Congressional
Justification.
17
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e) State Cost Share Reimbursable Accounts
Similar to special accounts, state cost share reimbursable (TRl) accounts provide a significant
source of funds for site-specific remedial action and LTRA that may be used in lieu of appropriated
resources. OCFO issues a monthly SSC collections and available TRl balance report to the regions,
which the regions should use to ensure that available funds are planned, obligated and expended in a
timely manner. Regional program offices should also work with the regional finance offices to ensure
the report is accurate, since it provides the basis for OCFO approval of requests for reimbursable
authority for TRl funds. Regions have made excellent progress in recent years in using TRl funds and
whittling down available balances, though several accounts still have significant balances available for
obligation. We will use the July 2011 OCFO report for comparison with regional planned obligations for
remedial action and LTRA in preparation for our work planning discussions.
f) Unliquidated Obligations
As is done each year, regions should review unliquidated interagency agreements (lAGs), grants,
cooperative agreements, and contract obligations to determine whether funds can be deobligated from
these vehicles and recertified. Unless a State can legitimately document why existing balances cannot be
expended or deobligated, the Region should deduct from any proposed FY 2012 resource allocation the
value of unliquidated resources obligated prior to FY 2012.
In early October, OSRTI will issue a memorandum requesting regions to characterize, by early
November, remedial resources obligated through FY 2009 that remain unliquidated as of the end of
FY 2011. OSRTI will issue a memorandum in mid-December with draft deobligations targets to
recertify resources to the National RA Pool. OSRTI will request that, by mid-January, regions submit
deobligation plans to meet these targets.
Attachment
cc: James Woolford, OSRTI
Elliot Gilberg, OSRE
OSRTI Managers
OSRE Managers
Dana Tulis,, OEM
David Lloyd, OBLR
Reggie Cheatham, FFRRO
Chloe Metz, Superfund Lead Region Coordinator FY 11, Region 2
Superfund Program Branch Chiefs, Regions 1-10
Regional Counsel Superfund Branch Chiefs, Regions 1-10
Cost Recovery Coordinators, Regions 1-10
IMCs, Regions 1 -10
Budget Coordinators, OSRTI and Regions 1-10
Superfund Program Enforcement Contacts, Regions 1-10
Carolyn E. Williams, OSRTI Documents Coordinator
18
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Attachment A
Superfund Enforcement and Legal Support (SEALS)
Major Focus & Reporting Areas for FY 2012
These are the FY 2012 focus areas for the Superfund enforcement and legal support programs These focus areas will be reviewed and
updated annually. Also shown are annuallv reported SF enforcement statistics.
Reference
Name
Pre-RA
Enforcement Action
(GPRA}
Cost Recovery
(GPRA)
VCMA
(GPRA)
PRP Searches
(ici*)
Compliance
Monitoring
(icrj
RD/RA
Negotiations (ici*)
Special Account
Management
Revitalization
Institutional
Controls
Financial
Assurance
Referrals
PRP Response
Commitments**
Cost Recovery
Commitments
Oversight Costs
Collections
Major Focus Areas
Enforcement First/Polluter Pays: Reach a settlement or take an enforcement action
before a new RA start at 95% of non-Federal SF sites with RA starts during the FY
that have viable, liable PRPs.
Help maximize cost recovery by addressing all past costs > S200K at 100% of sites
with upcoming SOLs by referral to DOJ, settlement, write-off, or filing a bankruptcy
claim.
Improve the accuracy and timeliness of VCMA data. Report the estimated VCMA
achieved through enforcement actions, (national target: 1 .56 cu yds by 201 5)
Ensure effective PRP searches and enforcement at the earliest stage of the cleanup
pipeline, including Superfund removal and RI/FS stages
Enter Substantial Noncompliance status data for Superfund Enforcement
instruments in CERCLIS and annually review to identify serious violations and
ensure timely and appropriate enforcement response.
Efficiently negotiate settlements in order to begin cleanups as soon as practicable.
Effectively manage special accounts to maximize the use of funds for PRP- or EPA-
lead cleanup. (Reduce the balance of unplanned funds in special accounts.)
Facilitate the cleanup and reuse of Superfund properties by addressing, in an
enforcement document, the liability concerns of non-iiable parties at RAU sites
{counting site-wide RAU and acres RAU).
Ensure all ICs identified by an EPA document are in place at both PRP-lead and
Fund-lead SF sites.
Ensure that there is financial assurance (FA) in place for PRP clean-up obligations.
Report the total amount of response commitments secured through FA.
Ensure timely referrals of civil actions to DOJ. (# of civil referrals to DOJ.)
Additional Superfund Enforcement Information
Reported Annually by Headquarters to Congress
Estimated $ value of all PRP work commitments and/or cash payments toward
future response costs at a site (based on RODs, Action Memos, or BPJ) to be
completed under entered CDs, AOCs, or UAOs where PRPs have agreed to comply.
The dollar amount of past costs PRPs have agreed to pay to EPA through CDs,
AOCs and voluntary payments during a given FY.
Amounts billed to PRPs for EPA oversight performed pursuant to CDs or AOCs.
The amount of money deposited to the Trust Fund from: settlements, judgments,
billed oversight, UAOs and voluntary payments of past costs.
Data
Source
CERCLIS
CERCLIS
ICIS
CERCLIS
CERCLIS
CERCLIS
IFMS
CERCLIS
CERCLIS
ICTS
CERCLIS
ICIS
CERCLiS
ICIS
CERCLiS
ICIS
IFMS
IFMS
Integrated Cleanup Initiative objective
' OECA "injunettve relief obtained" data are derived from this data.
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OSWER Directive 9200.3-14-1G-W
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March 20, 2012 FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
Superfund Program Implementation Manual FY 12
Appendix D: American Recovery and Reinvestment Act (ARRA)
FY 12 SPIM March 20, 2012
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OSWER Directive 9200.3-14-1G-W
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March 20, 2012 FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
APPENDIX D: American Recovery and Reinvestment Act (ARRA)
Table of Contents
D.A General Information D-l
D.A.I Purpose, Contents, and Applicability D-l
a. Why is EPA issuing this guidance? D-l
b. What is in this guidance? D-l
c. To whom does this guidance apply to? D-2
D.A.2 Responsible Officials in the Superfund Program D-2
D.A.3 Ensuring Accountability for Recovery Act Implementation D-2
D.A.4 Roles and Responsibilities of Other EPA Offices D-2
D.A.5 EPA Governance and Risk Management Activities D-3
D.A.6 Inspector General Activities D-4
D.A.7 Links to Other Information D-4
D.B Superfund Remedial Program Provisions of the American Recovery and
Reinvestment Act D-5
D.B.I Availability of Funds D-5
D.B.2 Objectives of the Recovery Act Funding for the Superfund Remedial Program D-5
D.B.3 Comparison to Regular Appropriations D-6
D.B.4 Eligible Activities D-6
D.B.5 Distribution of Recovery Act Funds D-6
D.B.6 State Cost Share D-7
D.B.7 Monitoring and Evaluating Recovery Act Implementation D-7
D.C Superfund Recovery Act Communications and Reporting D-8
D.C.I Recovery Act Press Release Procedures D-8
D.C.2 Recovery Act Award Notification Procedures D-8
a. Monday Close of Business D-8
b. Tuesday Noon D-8
c. Thursday D-8
d. Friday D-8
D.C.3 Public Communication Procedures D-9
D.C.4 Recipient Reporting Requirements D-9
D.C.5 EPA Reporting Requirements D-10
D.C.6 Weekly Financial and Activity Reports D-10
D.C.7 Agency and Program-Specific Plans D-ll
D.C.8 Performance Measures D-ll
D.C.9 Reporting and Tracking Systems D-12
D.D Recovery Act Budget Execution Guidance for the Superfund Remedial ProgramD-14
D.D.I Budget Structure and Coding D-14
D.D.2 Allocating Recovery Act General Resources D-15
D.D.3 Allocating Recovery Act Management and Operation Resources D-15
D.D.4 Reprogramming of Recovery Act Funds D-16
D.D.5 CERCLIS Planning D-16
D.D.6 Projects that are Unable to Use Allocated Recovery Act Funds D-17
D.D.7 Cost Recovery D-17
FY 12 SPIM D-i March 20, 2012
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OSWER Directive 9200.3-14-1G-W
D.E Recovery Act Superfund Contracts, Interagency Agreements, and Cooperative
Agreements D-17
D.E.I Recovery Act Financial Award Vehicles D-17
D.E.2 Contracts D-18
D.E.3 Interagency Agreements and Interagency Assisted Acquisitions D-18
D.E.4 Best Interest Reviews for Assisted Acquisitions D-18
D.E.5 Direct Cite Programs D-19
D.E.6 Cooperative Agreements D-19
D.E.7 Superfund State Contract Payment Schedules D-19
D.E.8 Socio-Economic Goals D-20
D.E.9 Bona Fide Needs Rule D-20
D.E.10 Infrastructure and Buy American Provisions D-20
D.E.I 1 Davis Bacon Act D-21
D.E.12 Funds-In Interagency Agreements for Federal Facility Oversight D-22
List of Exhibits
D.I. Attachment A: Funding Award Notification Template D-23
D.2. Attachment B: OMB Definition of Obligation and Outlay D-25
D.3. Attachment C: Class Deviation Approval 3/9/09 D-27
March 20, 2012 D-ii FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
APPENDIX D: AMERICAN RECOVERY AND REINVESTMENT
ACT (ARRA)
D.A GENERAL INFORMA TION
D.A.I Purpose, Contents, and Applicability
a Why is EPA issuing this guidance?
The U.S. Environmental Protection Agency (EPA) developed this guidance in response
to the American Recovery and Reinvestment Act of 2009 ("Recovery Act" or "Act")
(ARRA) which provides a supplemental appropriation of $600 million for Superfund
remedial activities authorized by the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)1. The Recovery Act requires unprecedented
levels of transparency, accountability, and oversight to ensure that taxpayers know how,
when, and where their tax dollars are being spent. This program guidance is a resource to
assist Headquarters (HQ) and regional Superfund remedial program offices in the
effective management of Recovery Act activities and to help ensure that EPA expends
the Recovery Act funds in an accelerated and accountable manner.
b. What is in this guidance?
This guidance provides information on the implementation requirements of the Act for
the Superfund remedial program, the communication and reporting processes related to
Recovery Act funds, enhancements to standard budget execution procedures, and funding
award implementation information.
The goal of this guidance, consistent with the Office of Management and Budget's
(OMB's) accountability objectives for all agencies, is to establish and clarify the requisite
steps the Superfund remedial program, in consultation with regional acquisition offices,
must take to meet the following crucial accountability requirements of the Recovery Act:
Funds are awarded and distributed in a prompt, fair, and reasonable manner;
The recipients and activities related to all funds are transparent to the public and
the benefits of these funds are reported clearly, accurately, and in a timely
manner;
- Funds are used for authorized purposes and instances of fraud, waste, error, and
abuse are mitigated;
- Projects funded under this Act avoid unnecessary delays and cost overruns; and
1 This document provides guidance to Regional staff and states regarding how the Agency intends to interpret and
implement the American Recovery and Reinvestment Act of 2009. This document does not impose legally binding
requirements, nor does it confer legal rights, impose legal obligations, or implement any statutory or regulatory
provisions. This document does not change or substitute for any statutory or regulatory provisions. Any decisions
regarding a particular situation will be made based on the statute and the regulations, and EPA decision-makers
retain the discretion to adopt approaches on a case-by-case basis that differ from the guidance where appropriate.
FY 12 SPIM D-l March 20, 2012
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OSWER Directive 9200.3-14-1G-W
- Program goals are achieved, including specific Superfund remedial program
performance measure outcomes.
Work conducted with Recovery Act funds will supplement the current cleanup activity
projected to occur using base appropriated program resources.
c. To whom does this guidance apply to?
The provisions of this guidance apply to all EPA offices involved in or affected by the
Superfund remedial activities funded by the Recovery Act. States should work with EPA
regions to ensure funds are used consistent with the Act.
D.A.2 Responsible Officials in the Superfund Program
The National Policy Managers for the Superfund remedial program are the responsible
officials for ensuring that EPA implements and expends Recovery Act funds in accordance with
the requirements of the Recovery Act and the related procedures outlined in this guidance. In
HQ, the responsible official is the Director of the Office of Superfund Remediation and
Technology Innovation (OSRTI). In the regions, the responsible officials are the Superfund
Program Division Directors.
On March 20, 2009, President Obama issued a memorandum, Ensuring Responsible
Spending of Recovery Act Funds, which establishes requirements for ensuring merit-based
awards, avoiding imprudent projects, and disclosing communications with lobbyists. All federal
personnel involved in Recovery Act implementation must closely review this memorandum and
take all necessary steps to ensure full compliance. The memorandum can be found at
http://www.whitehouse.gov/the_press office/Memorandum-for-the-Heads-of-Executive-
Departments-and-Agencies-3-20-09/. On April 3, 2009, OMB issued an update to its initial
guidance, providing a second installment of government-wide guidance. The April guidance
supplements, amends, and clarifies the initial guidance. That memorandum can be found at
http://www.recoverv.gov/sites/default/files/m09-15.pdf
D.A.3 Ensuring Accountability for Recovery Act Implementation
The Superfund program will ensure that the expenditure and monitoring of Recovery Act
funds is transparent and that appropriate, qualified, and certified staff oversee the use of
Recovery Act resources. Working with established Agency and Recovery Act guidelines, the
Superfund program will ensure that it monitors and reports Recovery Act resource utilization and
project progress in an effective and timely manner. The responsible officials for the Recovery
Act funding (the Director of OSRTI and the Regional Division Directors) will have timely and
regular meetings to resolve any issues related to Recovery Act-funded projects. In addition, EPA
will update personnel performance standards for Agency management and staff to reflect
Recovery Act management and oversight activities.
D.A.4 Roles and Responsibilities of Other EPA Offices
Several EPA offices are responsible for overseeing aspects of the Agency's Recovery Act
implementation to ensure that the Superfund remedial program meets the Act's requirements:
March 20, 2012 D-2 FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
• Office of Environmental Information (OEI) manages the information to support the
goals of the Recovery Act, including transparency, reporting, and accountability. OEI
is responsible for facilitating the transparency of information related to Recovery Act
activities, and ensuring information collection and proper dissemination.
• EPA's Office of Inspector General (OIG) ensures that EPA manages its Recovery Act
funds economically and efficiently. The Act specifically authorizes EPA's OIG to
mitigate fraud, waste, error, and abuse in the use of Recovery Act funds.
• Office of the Chief Financial Officer (OCFO) manages financial services, strategic
planning, Agency budgets, annual plans, and performance and accountability
reporting. Under the Act, OCFO has major responsibilities for risk management tied
to the allocation and distribution of Recovery Act funds. OCFO is responsible for
accounting for EPA's expenditures of these funds.
• Office of Administration and Resources Management (OARM) directs the Agency's
acquisition management function, consistent with the Federal Acquisition
Regulations Office of Acquisition Management (OAM). OARM also manages EPA's
grants and debarment activities Office of Grants and Debarment (OGD) as well as the
Agency's human resource and facility management functions. OARM has developed
the Agency's procurement strategy for the Recovery Act to ensure that EPA awards
and distributes the funds in a prompt, fair and reasonable fashion. EPA has designated
Craig E. Hooks, Acting Assistant Administrator of OARM, as the Agency's Senior
Responsible Official (SRO). The SRO has responsibility and authority to coordinate
Recovery Act activities across Agency programs.
• Office of Public Affairs (OPA) coordinates and approves all press events related to
the Recovery Act. They also shepherd press announcements through the OMB and
White House approval process.
• Office of Congressional and Intergovernmental Affairs (OCIR) coordinates and
implements all Congressional Recovery Act notification activities.
• Office of Enforcement and Compliance Assurance (OECA) assists other federal
agencies in their timely compliance with National Environmental Policy Act (NEPA),
acquires other necessary EPA approvals for Recovery Act funded actions, and assists
with reporting and green principles coordination.
D.A.5 EPA Governance and Risk Management Activities
The Recovery Act (Division A, Title XV, Subtitle B, 1521) established the Recovery
Accountability and Transparency Board to coordinate and conduct oversight of covered funds
and to prevent fraud, waste, and abuse. OMB will work with agencies to meet the accountability
objectives.
OMB's guidance sets out the requirement that agencies designate a senior accountable official for
Recovery Act activities. EPA has designated Craig E. Hooks, Acting Assistant Administrator of
OARM, as the Agency's Senior Responsible Official (SRO). The SRO has responsibility and
authority to coordinate Recovery Act activities across Agency programs. In addition, EPA has
established a stimulus steering committee, chaired by Nancy Gelb, which is organized into four
FY 12 SPIM D-3 March 20, 2012
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OSWER Directive 9200.3-14-1G-W
subcommittees and three advisory members. The following chart shows the steering committee
structure and the chairpersons of each subcommittee. Each subcommittee includes an Office of
Solid Waste and Emergency Response (OSWER) representative.
Agency Senior
Responsible Official
Craig E, Hooks. OARM
Communications
and Outreach
Lisa Schlosser. OPA
Steering
Committee
Nancy Gelb, OARM
(Chair}
Grants and Ir.leragency
Agreements
Howard Corcoran. OARM
Interdisciplinary
Issuer
Joyce Frank. OCIR
(Itfnvwt , /JrfVMOfJ
D.A.6 Inspector General Activities
The Recovery Act allocated $20 million for the OIG to carry out Agency oversight of the
$7.2 billion of Recovery Act funding allocated to EPA (including the $600 million allocated for
the Superfund remedial program). The OIG has developed an initial plan (March 2009) for
oversight activities and their funds are available for obligation through September 30, 2012.
The OIG will assess whether EPA is using Recovery Act funds in accordance with the
requirements and whether EPA is meeting the Act's accountability objectives. They will also
monitor EPA's progress in achieving program goals and ensure that EPA accurately tracks and
reports expenditure of Recovery Act funds. Their work is being closely coordinated with the
Recovery Accountability and Transparency Board.
Once EPA has awarded its Recovery Act funds, the OIG will focus on performance and
financial audits of the Recovery Act programs. This focus will include evaluating and auditing
EPA's use of the Recovery Act funds and assessing the accuracy of the Agency's reporting
information. The OIG will continue to take proactive actions to prevent mismanagement of funds
and will undertake investigations tied to allegations of fraud, waste, and abuse.
D.A.7 Links to Other Information
More information on the Recovery Act and related guidance and implementation
activities can be found at the following web areas:
• National Recovery Act Website: http://www.recovery.gov/
• EPA Recovery Act Website: http://www.epa.gov/recovery/
• O SRTI Recovery Act Web site:
http://www.epa.gov/superfund/eparecovery/index.html
• Recovery Act Plan for the Superfund remedial program:
www. epa. gov/superfund/eparecovery
March 20, 2012
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OSWER Directive 9200.3-14-1G-W
• The American Recovery and Reinvestment Act:
http ://www. whitehouse. gov/the_press_office/ARRA_public_review/
• OMB's Recovery Act guidance documents:
- Updated guidance (April 3, 2009)
http ://www.recovery. gov/sites/default/files/m09-15 .pdf
Initial guidance (February 18, 2009
http://www.recovery.gov/files/Initial%20Recoverv%20Act%20Implementing%20
Guidance.pdf.
• EPA Office of Inspector General initial plan for oversight:
http://www.epa.gov/oig/reports/2009/InitialEPAOIG_StimulusPlan03-05-09.pdf
D.B SUPERFUND REMEDIAL PROGRAM PRO VISIONS OF THE
AMERICAN RECOVERY AND REINVESTMENT ACT
D.B.I Availability of Funds
The Recovery Act provides $600 million for Superfund remedial activities. In accordance
with the provisions of the Recovery Act, up to 3% may be retained by the Agency for
management and oversight purposes. As such, EPA will allocate $18 million to internal EPA
activities related to the management, oversight, and reporting of Superfund Recovery Act funds,
and will allocate $582 million to remedial cleanup activities at sites.
Recovery Act resources for Superfund remedial activities were obligated by September
30, 2010. Recovery Act resources placed on contracts are available for expenditure until
September 30, 2017. The Recovery Act management and oversight resources were obligated by
September 30, 2011, and are available for expenditure until September 30, 2018. Recovery Act
resources placed on Superfund grants (i.e. Cooperative Agreements) were obligated by
September 30, 2010. In light of the current economic situation and the need for further economic
stimulus, OMB has requested that all remaining Recovery Act grant funds be expended as
quickly and efficiently as possible. If those funds have not been spent by September 30, 2013,
agencies shall reclaim them to the extent permitted by law.
OMB Memo M-l 1-34 link:
http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/mll-34.pdf
D.B.2 Objectives of the Recovery Act Funding for the Superfund Remedial Program
The overall objectives for the use of Recovery Act funding for the Superfund remedial
program are to further cleanup at National Priorities List (NPL) sites, maximize job creation and
retention, and provide human health, environmental, and economic recovery benefits. EPA will
achieve these objectives by starting new cleanup projects, accelerating cleanups at projects
already underway, increasing the number of workers and activities at cleanup projects, and
returning affected sites to more productive use.
Cleanup activities at Superfund sites receiving Recovery Act funds may also yield
significant site-specific, non-environmental economic benefits, including improved site property
values and job opportunities. EPA will ensure that it conducts Recovery Act-related activities in
FY 12 SPIM D-5 March 20, 2012
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OSWER Directive 9200.3-14-1G-W
a manner that considers environmental justice at sites that suffer disproportionate environmental
impact to ensure that environmentally and economically distressed communities are protected.
The Superfund remedial program will also implement the Recovery Act activities in a
manner that creates an overall healthier environment and lays the groundwork for more efficient,
greener ways to clean up hazardous waste sites. The use of "green technology"2 can emphasize
low-carbon footprint technologies to lower greenhouse gas emissions as well as provide other
substantial "green benefits" such as increased energy and water efficiencies through technology
and use of renewable resources; reduction of land and water contamination and air emissions;
and development of new technologies for broader applications. EPA will consider, to the extent
feasible and permitted by law, using green remediation practices, clean diesel technologies, and
anti-idling practices at Superfund projects receiving Recovery Act funding.
D.B.3 Comparison to Regular Appropriations
There are two main differences between the Recovery Act remedial program funds and
the Superfund remedial program's regular, annual appropriations:
• Unlike the Agency's annual Superfund appropriations which have no required
timeframe for obligation or expenditure, EPA was required to obligate the Recovery
Act appropriation by September 30, 2010 (Recovery Act, Division A, Title XVI,
Subtitle D, 1603) and expend Recovery Act contract funds by September 30, 2017
(September 30, 2018 for management and oversight resources; September 30, 2013
for grant resources).
• The Recovery Act includes unique reporting and funds tracking requirements for
activities funded under the Recovery Act (e.g., jobs created, and more frequent
reporting).
D.B.4 Eligible Activities
The Recovery Act neither expands nor limits eligible uses of Superfund remedial funds,
with the exception of prohibiting Recovery Act funds from uses related to casinos and other
gambling establishments, aquariums, zoos, golf courses, or swimming pools. Under the
Recovery Act, EPA will fund cleanup projects it traditionally funds with its annual
appropriations.
D.B.5 Distribution of Recovery Act Funds
EPA will distribute Recovery Act funding in a manner that promotes both a healthier
environment and jobs that benefit the environment. Recovery Act funding will support both new
start and ongoing Superfund remedial projects to provide immediate short and longer-term
health, environmental, and economic benefits. The Agency anticipates that Recovery Act funds
will support at least 51 NPL sites in 28 states across the country. A list of the sites anticipated to
receive Recovery Act funding is on the Superfund Recovery Act web area and can be found at:
http://www.epa.gov/superfund/eparecovery/sites.html.
Green Remediation: Incorporating Sustainable Environmental Practices into Remediation of Contaminated Sites
US Environmental Protection Agency, Office of Solid Waste and Emergency Response, EPA 542-R-08-002 April,
2008. Link: http://www.cluin.org/greenremediation/
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For projects funded with Recovery Act resources, as with projects funded with regular
appropriations, the Superfund program used one of three types of financial awards to implement
remedial activities-contracts, interagency agreements or Cooperative Agreements (CA). (See
section D.E for more information)
D.B.6 State Cost Share
The Recovery Act did not provide a waiver from the provision in the Superfund statute
(CERCLA 104(c)(3)(C)) that requires states to pay a 10% (or more) cost share for all remedial
actions conducted with federal Superfund appropriations.
In order to ensure that states will agree to satisfy the cost share and other CERCLA
requirements under a Superfund State Contract (SSC) without delaying the use of Recovery Act
funds for Superfund remedial activities, EPA modified the timeframe requirements associated
with SSC cost share agreements. EPA's regulation normally requires that a state pay its cost
share upon completion of all activities within the scope of the SSC. Recognizing the economic
and budgetary constraints states currently face, EPA issued a class deviation to modify these
requirements. Under the class deviation, EPA negotiated with SSC signatories to set a mutually
agreeable final payment date for all SSCs signed or amended from February 17, 2009, through
September 30, 2010. (See section D.E for more information)
D.B.7 Monitoring and Evaluating Recovery Act Implementation
EPA HQ reviewed Recovery Act resource utilization and performance progress on a
regular basis. HQ also discussed any concerns related to Recovery Act resource utilization,
activities, and progress with the regions during established mid-year and end-of-year Superfund
remedial program work planning meetings.
Activity
Evaluate Recovery Act resource utilization and performance progress
Re-allocate funds, if necessary
Complete obligation of Recovery Act Funds to all sites
(Internal OSRTI goal: September 30, 2009)
Projected Date
Monthly
Quarterly
September 30, 2010
All EPA Recovery Act awards (i.e., cooperative and interagency agreements, and
contract work assignments or task orders) included reporting requirements. The purpose of these
reports is to provide EPA with detailed project progress information in a manner consistent with
the reporting requirements identified in the Recovery Act (Division A, Title XV, Subtitle A,
1512).
EPA also conducted quarterly in-depth reviews to ensure Recovery Act recipients are
making sufficient progress with Recovery Act funds. These reviews allowed EPA to ensure that
recipients were expending Recovery Act funds quickly and prudently. Funds that EPA identified
as being at risk of not being spent in a timely matter were re-obligated to another project in order
to meet the statutory deadline of obligating all funds by September 30, 2010. In order to monitor
and preserve accountability for Recovery Act expenditures, the Superfund remedial program will
follow OEI's Management Action Plan, "Quality Assuring EPA's ARRA Grants, Contracts, and
Interagency Agreements".
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D. C SUPERFUND RECOVERY ACT COMMUNICA TIONS AND
REPORTING
D.C.I Recovery Act Press Release Procedures
The Administrator announced on April 15, 2009 that EPA would be distributing
approximately $600 million to 51 Superfund sites; the announcement included a site list. With
the exception of three sites, the regions issued press releases for all of the sites receiving
Recovery Act funds.
The process and template for subsequent press releases on Recovery Act activities has
been provided to the regional Public Affairs Directors (PADs). If regions are interested in doing
a press release on site-specific Recovery Act activities they should contact OSRTI (Suzanne
Wells at 703-603-8863, wells.suzanne@epa.gov; and Lois Gartner at 703-603-8711,
gartner.lois@epa.gov) and the OSWER Communications Director (Marsha Minter at 202-566-
0215, minter.marsha@epa.gov).
D.C.2 Recovery Act Award Notification Procedures
Prior to the funding of any Recovery Act awards including contracts, Interagency
Agreements (lAs), and CAs (but not including management and oversight funds), EPA must
notified the White House in advance of the award according to this process. Note that the project
was ready to be funded when White House notification is made. The template for Recovery Act
financial award notifications can be found in Attachment A of this Appendix.
a. Monday Close of Business
Regional Recovery Act points of contact (POC) sent award notifications for
contract actions to OAM (Tim Farris) and award notifications for lAs and CAs to
OGD (Catherine Vass and Alexandra Raver) with a cc to OSRTI (James
Woolford, Robin Richardson, Elizabeth Southerland, and Phyllis Anderson).
b. Tuesday Noon
OARM completed a table for Recovery Act awards and submitted that table to the
White House by noon. OARM copies OP A, OCIR, OCFO, Susan Hazen, the
regions, and HQ program offices.
c. Thursday
- If there is no feedback from the White House, the Recovery Act awards moved to
"stand by" pending Congressional notification. Regional POCs were notified by
Thursday if there was a problem. It is important to note that Congressional
notification should be made prior to any public notification.
d. Friday
- If no problems had been identified, awards were signed and obligations
completed.
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OSWER Directive 9200.3-14-1G-W
D.C.3 Public Communication Procedures
On an ongoing basis, EPA will provide information on the performance, progress, and
accomplishments of Superfund-related Recovery Act remedial activities in a transparent fashion,
as outlined in the Agency and Recovery Act guidelines. The Agency will also continue to
publicize information regarding site activities as required by CERCLA.
Recovery Act progress information will be posted on the EPA Recovery Act web area at
www.epa.gov/recovery as well as on the federal Recovery Act web area at
http://www.recovery.gov. The Superfund remedial program has also created its own web area,
located at www.epa.gov/superfund/eparecovery and will publicly post information on activities
conducted with Recovery Act funds.
In addition, site-specific information for all sites receiving Recovery Act funding is
available through individual site fact sheets located on the Superfund program web area at
http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm. EPA's Cleanups in My Community web
tool can be used to create maps of Superfund sites receiving Recovery Act resources. The
Cleanups in My Community tool can be accessed by using the instructions on the following
webpage: http://iaspub.epa.gov/Cleanups/.
Superfund Remedial Program Recovery Act Public Communications Flow
recovery.gov
epa.recovery.gov
epa.recovery.gov/
superfund/epa recovery
Broad Detailed More Detailed
Information Information Information
*Bcact Web Address: http://cfpub.epa.gov/supercpad/cursites/srclisites.cfm
Site Factsheets on
epa.gov/superfund*
Site-Specific
Information
D.C.4 Recipient Reporting Requirements
The Recovery Act and OMB's guidance require extensive reporting from recipients of
Recovery Act funding. The Recovery Act defines "recipient" as any entity that receives
Recovery Act funds directly from the federal government (including Recovery Act funds
received through cooperative agreement or contract) other than an individual and includes a state
that receives Recovery Act funds. See Division A, Title XV, Subtitle A, 1512 of the Recovery
Act.
Section 1512(f) of the Recovery Act requires recipient reporting to begin 180 days after
enactment and for reports to be submitted by recipients 10 days after the end of each calendar
quarter. This results in an initial statutory reporting deadline of October 10, 2009, with quarter
reports due 10 days after the end of each calendar quarter thereafter. Detailed reporting
instructions are available at http://www.FederalReporting.gov.
FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
D.C.5 EPA Reporting Requirements
OMB's Recovery Act guidance sets out the schedule for Agency reporting requirements
under the Recovery Act. The following table provides a sampling of Agency level Recovery Act
reports.
Reporting Requirement
Funding Award Notification
Reports
Regional Submissions for
the Weekly Financial and
Activity Reports (see section
D.C.6)
Weekly Financial and
Activity Reports (see section
D.C.6)
Award-level Reporting (as
required for
USAspending.gov)
OSRTI
From
Regional
POC
Regions
OSRTI
TBD
OSWER
To
OAM for contracts (Tim
Farris), OGD for lAs and
CAs (Catherine
Vass/ Alexandra Raver)
OSRTI (thru CERCLIS
web module)
OSWER
TBD
N/A
CC
James Woolford,
Elizabeth
Southerland, Robin H.
Richardson, Phyllis
Anderson
N/A
N/A
TBD
N/A
Projected Date
Immediate/ongoing
Weekly/ongoing
Weekly/ongoing
TBD
Draft: May 1, 2009;
Final: May 15, 2009
D.C.6 Weekly Financial and Activity Reports
OMB's guidance requires all agencies receiving Recovery Act funds to submit weekly
financial and activity reports. These are broad-level reports that are posted on the federal
Recovery Act web area at http://www.recovery.gov/?q=content/agency-weekly-reports. The
reporting frequency and details have changed slightly over time, reflecting the information needs
of the Administration and the public.
The weekly financial reports provide total obligations and gross outlays to date (See
Attachment B of this Appendix for OMB's definitions of obligations and outlays). For EPA, the
financial report was developed by OCFO and the information is drawn from the Agency's
Compass System. The monthly activity reports provide a short bulleted list of the major activities
taken to date and major planned activities. "Major" actions include those of likely interest to
senior government officials, Congress, and the public. The Superfund monthly activity reports
were developed by OSRTI, and then posted on
http://www.epa.gov/Superfund/EPARecovery/index.html.
Currently, the Superfund monthly activity reports are at a broad program level. OSRTI
anticipates collecting major activity information from the regions on a weekly basis for inclusion
in the report. It is anticipated that the regions will enter major site-specific activity information
into the Comprehensive Environmental Response, Compensation and Liability Information
System (CERCLIS) using a webform. The webform will be pre-populated with Superfund site
and Recovery Act program information already stored in CERCLIS. By the fifth business day of
each month, the regions will input information into the webform on any major cleanup activities
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achieved the previous month and any major activities anticipated in the month ahead. If there are
no major activities that have occurred or are planned, then the regions do not need to enter any
information in CERCLIS. On the following day, HQ will compile the regional contributions into
the Superfund monthly activity report summary that will then undergo EPA review and be
released to the public.
D.C.7 Agency and Program-Specific Plans
Guidance issued by OMB required programs receiving funding under the Act to develop
formal Agency and program-specific plans that summarized planned implementation activities.
Draft plans were due to OMB no later than May 1, 2009 and were finalized on May 15, 2009.
The Agency and Superfund remedial program Recovery Act plans are posted on recovery.gov.
D.C.8 Performance Measures
The Superfund program will measure its Recovery Act performance using the eight
performance measures listed in the table on the following page. These measures will be reported
for the public on EPA's Recovery Act website (https://www.epa.gov/recovery).
Performance
Measure
Total Number of
Sites in Receipt of
Recovery Act
Funding
Total Number of
Projects in Receipt
of Recovery Act
Funding
Total Number of
Sites with New
Construction in
Receipt of
Recovery Act
Funding
Total Number of
Projects with New
Construction in
Receipt of
Recovery Act
Funding
Percentage of
Recovery Act
Funding Obligated
Source
CERCLIS,
Compass,
eFacts
CFRCT IS
Compass,
eFacts
CERCLIS,
Compass,
eFacts
CERCLIS,
Compass,
eFacts
Compass
Description/Definition
The total number of National Priorities List (NPL)
sites where Recovery Act resources were
obligated.
The total number of projects at NPL sites where
Recovery Act resources were obligated.
The total number of NPL sites where Recovery
Act resources were obligated for new
construction.
The total number of new construction projects at
NPL sites where Recovery Act resources were
obligated
The amount of Recovery Act resources obligated
divided by the total amount of Recovery Act
funds.
Reporting
Frequency
Monthly
(fifth
Business
Day)
Monthly
(fifth
Business
Day)
Monthly
(fifth
Business
Day)
Monthly
(fifth
Business
Day)
As needed
Reporting
Office
OSRTI
OSRTI
OSRTI
OSRTI
OCFO
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OSWER Directive 9200.3-14-1G-W
Performance
Measure
Number of Projects
Receiving Recovery
Act Funding
Completion
Achieving
Construction
Completion (CC)
with Recovery Act
Number of Sites
Achieving Human
Exposure under
Control (HEUC)
with Recovery Act
Funding
Source
CERCLIS
CERCLIS,
eFacts
CERCLIS,
eFacts
Description/Definition
The number of projects receiving Recovery Act
funding achieving completion by the end of fiscal
year (FY)2012 (Completion of projects is defined
as those projects receiving Recovery Act funds
which achieve a CERCLIS action for remedial
action completion or remedial design completion
as defined through the Superfund Program
Implementation Manual).
The number of sites receiving Recovery Act
funding achieving construction completion by the
end of FY 2012 (The current FY 2009 through FY
2012 CC Government Performance and Results
Act (GPRA) targets for the Superfund remedial
program include accomplishments anticipated at
Recovery Act funded sites).
The number of sites receiving Recovery Act
funding achieving HEUC by the end of FY 2012
(The current FY 2009 through FY 2012 HEUC
GPRA targets for the Superfund remedial
program include accomplishments anticipated at
Recovery Act funded sites).
Reporting
Frequency
Monthly
(fifth
Business
Day)
Monthly
(fifth
Business
Day)
Monthly
(fifth
Business
Day)
Reporting
Office
OSRTI
OSRTI
OSRTI
EPA will use the first six measures, which are new, for Recovery Act reporting purposes
only. The last two measures are based on existing Government Performance and Results Act
(GPRA) measures that EPA uses for traditional Annual Performance Reporting and will now
also use to track Recovery Act accomplishments. EPA chose all of the measures to reflect new
and continuing cleanup activities at Superfund sites receiving Recovery Act funding.
EPA will use the Annual Commitment System (ACS) to track performance for these
measures, using codes to be created specifically for this purpose (more guidance will follow
from OCFO). OSRTI anticipates that these ACS codes will be similar to the parallel codes
previously established for the EPA Quarterly Report (EQR). Until HQ provides further
instructions, regions should continue to promptly enter their performance data into CERCLIS
according to normal business operations. HQ will utilize CERCLIS data to enter
accomplishments into ACS for all Recovery Act accomplishments.
D.C.9 Reporting and Tracking Systems
Recovery Act funding for the Superfund remedial program will be tracked and reported
from two EPA databases. Financial data will be reported from Compass and program data will be
reported from CERCLIS. The primary device used to automate reports, graphics, and charts for
Superfund remedial program Recovery Act information will be the OSWER Performance
Assessment Tool (PAT) and Superfund eFacts. The following diagram illustrates the flow of data
between these systems to support Superfund remedial program data moving to the EPA
Recovery Act web area.
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OSWER Directive 9200.3-14-1G-W
Superfund Remedial Program Recovery Act Data Flow
www.epa.recovery.gov
OSWER Performance
Assessment Tool
• Compass: This database will be the primary location of all financial information
related to Recovery Act funds. Compass has been designed to contain the necessary
budget structure and account coding for fiscal year (FY) 2009 Recovery Act funds
(See section D.D for more details on the budget structure and account coding). Data
for reporting actual obligation and expenditure data will be pulled from Compass.
• CERCLIS: This is EPA's primary database to report data for NPL sites and non-NPL
Superfund sites. EPA has modified CERCLIS to track budget accounting codes
related to Recovery Act data elements, including fund account coding and program
priority flags. The Superfund Comprehensive Accomplishment Plan (SCAP) reports
in CERCLIS also reflect new account coding. In addition, CERCLIS data may be
used to populate new eFacts reports, reports from OSWER's PAT, or ReportLink
reports specifically designed to track sites and projects receiving Recovery Act funds.
More detail will follow as EPA specifies additional job-related and progress-related
requirements and procedures for reporting.
• Superfund eFacts: This tool will serve as the primary internal servicing resource tool
for organizing and reporting data on Recovery Act activities. Information will be
extracted from both Compass and CERCLIS and used to populate eFacts to provide
the required Recovery Act reports. It is important to note that eFacts reports provide
CERCLIS data at a certain time (e.g., reports pulled on March 10th reflect
accomplishments in the database as of March 9th). A specific Recovery Act section in
the Superfund eFacts intranet web area will display frequently used charts, forms, and
graphics to report the performance measures previously noted in section D.C.8. Some
of these charts will allow site-specific drilldown capability to provide additional site
detail. For additional information on eFacts or to obtain intranet access to eFacts,
contact Sheldon Selwyn at 703-603-8776, or selwyn.sheldon@epa.gov.
• OSWER Performance Assessment Tool (PAT): This tool will serve as the primary
external servicing resource for organizing and reporting data on Recovery Act
activities. PAT is a central reporting mechanism for OSWER traditional performance
data, which collects information from OSWER program systems, and conforms it for
uniform reporting and data provisioning. OSWER has modified PAT to support not
only traditional OSWER reporting, but also for Recovery Act purposes. PAT will
collect Recovery Act measures data for Superfund, Brownfields, and Leaking
Underground Storage Tanks, then deliver that data to EPA staff and managers via a
business intelligence dashboard interface for analytic and reporting use. OSWER
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OSWER Directive 9200.3-14-1G-W
developed PAT reporting tools to report Recovery Act site information for program
reporting measures to include sites achieving Construction Completion, Human
Exposure Under Control, and Site-Wide Ready for Anticipated Use. In addition, PAT
will deliver the same data to the Agency's Recovery Act reporting facility for
submission to OMB's Recovery.gov site.
D.D RECOVERY ACT BUDGET EXECUTION GUIDANCE FOR THE
SUPERFUND REMEDIAL PROGRAM
D.D.I Budget Structure and Coding
To maximize the transparency of Recovery Act spending, agencies must separately track
Recovery Act apportionments, allotments, obligations, and expenditures. The following table
provides an outline of the budget structure and coding that EPA has established for Recovery Act
Superfund resources:
Recovery Act: Superfund Remedial Actions
Appropriation Code:
Fund Code:
Budget Fiscal Years:
NPM:
NPM Code:
PRC Codes:
Activity Codes:
Add-On Codes:(positions 5-7 of Budget Org Field):
Recovery Act: Reimbursable Superfund Remedial Actions
Appropriation Code:
Fund Code:
Budget Fiscal Years:
NPM:
NPM Code:
PRC Codes:
Activity Codes:
Add-On Codes:(positions 5-7 of Budget Org Field):
Recovery Act: Superfund Management and Oversight
Appropriation Code:
Fund Code:
Budget Fiscal Years:
NPM:
NPM Code:
PRC Codes:
Activity Codes:
Add-On Codes:(positions 5-7 of Budget Org Field):
T
TS
2009/2010
OSWER
D
302DD2
C,D,E
T
TRS
2009/2010
OSWER
D
302DD2
C,D,E
B
BS
2009/2011
OSWER:
D
ZZZDJ8
C,D,E
RSF
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D.D.2 Allocating Recovery Act General Resources
OSRTI is responsible for allocating "Recovery Act: Superfund Remedial Actions" (Fund
Code: TS) to the regions. By law, these resources were available for obligation until September
30, 2010, with contract funds available for expenditure until September 30, 2017 (September 30,
2013 for grant resources. In order to identify and track the allocation of TS funds, OSRTI
developed a region-specific "FY 2009 Recovery Act Remedial Action (RA) Funding Plan". This
plan contained information on a site/project-specific basis (site/RAT/ACT codes), including the
total amount of funds planned for allocation to the regions during FY 2009, the actual allocated
amounts, and the amounts remaining to be allocated for the remainder of the year. Although the
plan primarily pertained to funding RA activity, it also supported a small number of pipeline
(remedial design) activities in support of remedial action projects. Although no further
obligations will take place, EPA will maintain and update the plan in subsequent years until the
Agency expends or deobligates all TS funds. The plan does not include project obligations and
expenditures information; however, such information can be found elsewhere, as described in the
following sections.
The Recovery Act funding plan documents funding decisions and any later modifications
to those decisions. Throughout the FY2009 & FY2010, OSRTI monitored this plan in
partnership with the regions to accommodate changing project circumstances and to adjust
project-specific funding decisions. Regions immediately discussed any modifications to the plan
with their OSRTI/Assessment and Remediation Division (ARD) regional coordinator for
design/construction.
The Recovery Act RA Funding Plan is updated continuously as necessary and is
reviewed by OSRTI management on a bi-weekly (i.e., twice monthly) basis. OSRTI management
will also review Superfund eFacts reports to monitor the financial status of each project on the
Recovery Act RA Funding Plan. Also, in addition to routine staff level interaction with the
regions, OSRTI will use scheduled Superfund Remedial Program work planning discussions
with the regions to assess progress in using Recovery Act resources in a timely and efficient
manner and meeting Superfund program and Recovery Act objectives.
D.D.3 Allocating Recovery Act Management and Operation Resources
*Note: this section is pending further edits*
OSRTI is also responsible for allocating "Recovery Act: Superfund Management and
Oversight" ("BS") resources to the regions. These resources were available for obligation until
September 30, 2011. Because BS resources are used for management and oversight purposes,
they were allocated on a region-specific rather than site-specific basis over a three year period.
Pursuant to the pending Program/Project Description Book narrative for the new Recovery Act
Program/Project "J8", Superfund management and oversight resources were used to:
• Coordinate, monitor, and evaluate an analytical, technical, and financial aspects of
Recovery Act funded Superfund remedial cleanups, including making site visits and
overseeing contracts, contract modifications, lAs, and CAs;
• Provide liaison to states and communities affected by Recovery Act funded
Superfund remedial cleanups, including managing state cost share agreements (SSCs
or CAs);
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OSWER Directive 9200.3-14-1G-W
• Provide high level review and analysis of project and financial information submitted
to EPA and reported to Agency management and the public (e.g., Recovery.gov);
• Provide resources to states and tribes through support Agency CAs to support
Recovery Act funded Superfund remedial cleanups; and
• Modify existing information technology (IT) systems to address collection and
reporting requirements of Recovery Act required data and information.
OCFO has subdivided the BS budget into three portions, to be allocated each of three
years. In FY 2009, OSRTI will reprogram the FY 2009 BS resource allotment to the regions
based on the following methodology:
• Each region will first receive a fixed share (5%) of FY 2009 BS resources, based on
the presumption that each region has a minimal BS requirement, regardless of the
amount of Recovery Act remedial resources it receives.
• The remainder of "BS" resources will be allocated to each region based on the total
amount of Recovery Act remedial construction resources it will receive based on the
OSRTI Recovery Act Remedial Construction Funding Plan.
HQ intends to retain this methodology for allocating subsequent years BS resources but
minor adjustments will be considered based on regional utilization and changes in regional plans.
D.D.4 Reprogramming of Recovery Act Funds
*Note: This section is pending further edits*
OSRTI reprogrammed BS resources from another 9R account in Compass to the
appropriate region pursuant to the Management and Operations (M&O) methodology described
in the previous section. As noted in the table above, OSRTI reprogrammed all BS resources to
the "ZZZDJ8" Program Results Code (PRC) and will use the "RSF" add-on code in the fifth
through seventh positions of the Budget Organization field of the Compass account number.
A region could choose which Budget Object Class (BOC) and which Allowance Holder
should receive BS resources ("A" or "O" account). "A" account resources are for extramural
(BOCs 36, 37, 41) remedial program purposes only and their use must be planned out in
CERCLIS. Payroll (BOC 10) and site travel resources (BOC 28) should be reprogrammed to the
"0" account, though other BOCs may also be used in the "0" account. Although OSRTI expects
that most BS resources will be used site-specifically, BS resources may also be used non-site-
specifically but they must directly support implementation of Recovery Act Superfund remedial
program activities. Regions may only use BS resources for costs incurred from 3/15/2009
forward. Site travel resources may only be used at sites that are receiving TS funds.
D.D.5 CERCLIS Planning
The CERCLIS database will be used to plan obligations of TS and BS resources.
Appropriate revisions to CERCLIS planning screens and reports contain the required code
structures.
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OSWER Directive 9200.3-14-1G-W
Management and Oversight (Fund Code: BS) resources have significantly more coding
requirements than TS resources. The BS resources not only use different fund and PRC codes
(akin to Environmental Programs and Management (EPM) resources), but also require the use of
add-on codes in the Budget Organization field of the Compass account number that override the
Site Allowance code. CERCLIS has been modified to automatically assign the appropriate PRC
and add-on codes to any planned obligation that used the BS fund code.
Since BS resources are three-year appropriations, both the BFY (budget fiscal year) and
EFY(end fiscal year) must also be included in the Compass account number. Procurement
officials must take care to add the appropriate data ("2011") into the EFY field (or alternatively
"2009-20011" into the BFY field, as appropriate) in procurement request forms and when
entering commitment and obligation information for BS resources into Compass. Once a region
obligates Recovery Act BS resources, it must make a corresponding adjustment to its approved
planned obligation financial transaction data in CERCLIS. Planning data may not be modified at
the time of resource commitment.
D.D.6 Projects that are Unable to Use Allocated Recovery Act Funds
On September 30, 2010, budget authority to incur new obligations against the Recovery
Act appropriation of TS resources expired. Once this budget authority ended, no new obligations
can be incurred against the appropriation. Expired obligated contract balances (unliquidated
obligations) and unobligated balances will remain available until September 30, 2017
(September 30, 2013 for grant resources), to liquidate obligations (expended funds) that were
properly incurred prior to September 30, 2010.
D.D.7 Cost Recovery
For cost recovery purposes, the Recovery Act is a supplemental appropriation and thus
should be treated the same as the annual Superfund remedial program appropriation. Any cost
recovery funds must be returned to the Trust Fund for future appropriations as required by 26
U.S. C. 9507 or, if future work is anticipated at the site, placed into a special account, under the
authority of CERCLA 122(b)(3). Unlike annual Superfund remedial program "no-year"
appropriations, by law Recovery Act funds had to be obligated by September 30, 2010, and
therefore, expenditures of contract stimulus funds were included in any reclassification of special
account resources unless they could have been recertified and obligated before September 30,
2010 and liquidated by September 30, 2017 (September 30, 2013 for grant resources). There are
no stimulus-specific coding requirements for recoveries of EPA costs incurred using Recovery
Act funds or for the establishment of special accounts using such recoveries.
D.E RECOVERY ACT SUPERFUND CONTRACTS, INTERAGENCY
AGREEMENTS, AND COOPERATIVE AGREEMENTS
D.E.I Recovery Act Financial Award Vehicles
The support for Superfund remedial program activities under the Recovery Act occurred
through three types of financial awards: EPA contracts, interagency agreements, and CAs. The
following table identifies the type of financial vehicle in conjunction with the anticipated
recipient and description.
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OSWER Directive 9200.3-14-1G-W
Type of Financial Vehicle
EPA Response Action Contracts (RACs), Site-
Specific Contracts, and Emergency and Rapid
Response Services (ERRS) Contracts
lAs with the US Army Corps of Engineers
(USAGE), primarily Interagency Assisted
Acquisitions (lAAs)
CAs
Type of
Recipient/Beneficiary
Contractors
Contractors
states, political
subdivisions, or tribes
Description
Use of existing competitively
awarded contracts and some new
awards to site-specific contracts
Use of lAs with existing
competitively awarded contracts and
some new awards
All CAs with states, political
subdivisions, or tribes are non-
competitively funded
Each of these vehicles has unique programmatic and administrative procedures as
described in the following sections. For acquisition or contract guidance, please refer to the
contract guidance issued by the OAM. http://oamintra.epa.gov/files/OAM/recoveyact.pdf. For IA
and CA guidance, there are separate guidance documents prepared for each by the OGD.
(http ://epa. gov/ogd/).
D.E.2 Contracts
Typically, Superfund remedial activities are conducted using RACs, site-specific
contracts, or task orders awarded under the ERRS contracts. Information regarding other vehicles
for Superfund remedial work appears in subsequent sections.
When adding funding to an existing contracting vehicle, regions needed to issue a new
tasking document to the contractor to ensure segregation of Recovery Act activities and funds
and to comply with OMB's contract guidance. Regions could "cross-over" to another region to
obtain additional contract capacity, although the region should consult the headquarters RAC
liaison in OSRTI prior to making a RAC "cross-over" decision.
D.E.3 Interagency Agreements and Interagency Assisted Acquisitions
Superfund remedial program activities conducted through lAs are typically agreements
with the U.S. Army Corps of Engineers (USAGE) for their support in the acquisition and
management of remedial contracts (i.e., lAAs). For ongoing work, the regions may choose to
amend existing lAs, provided that the amendment is within scope of the existing lAs, or award
new lAs. If the region intends to use an IA amendment, that IA amendment must show how the
Recovery Act work will be segregated and tracked. Regions should work with the USAGE to
ensure site-specific monthly progress reports adequately segregate Recovery Act funded
activities and associated costs. The Interagency Agreement Shared Service Center (IASSC) Web
site, http://intranet.epa.gov/ogd/IASSC/main/index.htm contains the applicable IA forms and
terms and conditions for lAs with the USAGE.
D.E.4 Best Interest Reviews for Assisted Acquisitions
USACE's IAs utilizing contractors for remedial work are considered lAAs. Only new lAs
with contracting require best interest determinations. OSWER requested a class best interest
determination, which OAM approved on April 7, 2009. OAM has provided a cover
memorandum outlining the roles and responsibilities of project officers and contracting officers
in implementing the determination. The class determination and the form for Contracting Officer
March 20, 2012
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FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
(CO) review can be found on the IASSC Web site. Additionally, as part of the class
determination, regions must continue to follow the justification and documentation requirements
of OSRTI's April 3, 2008 policy on selecting another federal agency to acquire and manage
remedial contracts, http://www.epa.gov/superfund/cleanup/pdfs/rdra/iagpolicv2008.pdf
D.E.5 Direct Cite Programs
Obligation and payment of Superfund Remedial Program work through lAAs with the
USAGE follow a unique procedure.
http://www.epa.gov/superfund/cleanup/pdfs/rdra/payment.pdf.
Under the "EPA/U.S. Army Corps of Engineers Payment Process, Direct Cite/Revised
Reimbursement Methods," issued March 21, 1990, the USAGE receives the contractor invoices
and after review and approval, submits them to EPA's Cincinnati Financial Management Center
for payment directly from EPA's appropriation. A copy of the payment request is sent by
USAGE to the Remedial Project Manager for review. The USAGE staff time, or in-house costs,
is reimbursed by EPA through the standard intergovernmental payment process. Regions may
use the Superfund Remedial Program Recovery Act appropriation (TS) for both revised
reimbursable and direct cite costs.
D.E.6 Cooperative Agreements
Superfund Recovery Act remedial activities may also be conducted through CAs with
states, tribes or political subdivisions. EPA's OGD has issued guidance regarding the use of
Recovery Act funds under grants and CAs. This guidance, which includes standard terms and
conditions for Recovery Act funds, can be found on the OGD website: http://epa.gov/ogd/.
Integrated Grants Management System (IGMS) will use program code 2S to track all Recovery
Act-related CAs.
D.E.7 Superfund State Contract Payment Schedules
On March 9, 2009, EPA issued a class deviation to permit an additional option for the
timing of EPA's invoice to the state for final payment under the state's payment schedule. The
two options for EPA to invoice a state for its final payment, with the exception of any change
orders and claims handled during reconciliation of the SSC, are: 1) upon completion of activities
in the site-specific statement of work (SOW) (currently permitted), or 2) after the final payment
date as negotiated by the signatories in the SSC (additional option), whichever is later. This class
deviation will permit signatories to an SSC to negotiate a payment schedule that extends beyond
the completion of activities in the site-specific SOW. The payment schedule negotiated should
generally not exceed five years after completion of SOW activities.
While EPA issued this class deviation to facilitate Recovery Act implementation, it is
only available for SSCs signed or amended from February 17, 2009 through September 30, 2010,
at which time the deviation will expire (See Attachment C of this Appendix). Note: Although a
state cost share is required for remedial actions under both the SSC and a cooperative agreement,
under a cooperative agreement states generally satisfy the cost share requirement without making
payments to EPA. Therefore, this guidance does not address a state payment schedule under a
cooperative agreement.
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OSWER Directive 9200.3-14-1G-W
D.E.8 Socio-Economic Goals
EPA regions are encouraged to award Superfund remedial program appropriations,
including Recovery Act funds, to contractors meeting EPA's socio-economic goals. The
Administration and the Agency would like to see overall improvement in this area; therefore,
Regions should keep the utilization of such contractors in mind when determining their
Superfund remedial program contracting strategy.
EPA anticipates the use of standard reporting tools for tracking progress in achieving
socio-economic goals, including the Federal Procurement Data Systems' New Generation
(FPDS-NG). Thus, obligations using the EPA treasury symbol established for the Superfund
remedial program's Recovery Act appropriation will be used to track and report socio-economic
contract utilization. Obligations under both EPA contracts and USAGE contracts will be entered
into FPDS-NG using the EPA treasury symbol by the respective agencies and credited towards
EPA's socio-economic goals. Obligations through CAs are not reported in FPDS-NG and, thus,
are not included in EPA's socio-economic calculations.
D.E.9 Bona Fide Needs Rule
All funds appropriated under the Recovery Act were obligated by September 30, 2010 to
meet bona fide needs that arose prior to that date. If the Bona Fide Needs Rule is satisfied, the
work may extend beyond September 30, 2010, unless the funds are used for severable services. If
Superfund remedial activities are deemed to be non-severable, the contractor may perform work
and costs may be incurred after September 30, 2010. See section D.D of this Guidance for more
details on OSRTI's goals for timely obligations and expenditures.
The Bona Fide Needs Rule applies differently to Superfund CAs and EPA contracts and
lAs. For Superfund CAs, the award of the cooperative agreement meets a bona fide need to
provide financial assistance to the eligible recipient that arises on the day of the award. The fact
that the cooperative agreement recipient performs the work funded by EPA after September 30,
2010 does not implicate the "severable versus non-severable services" concept that applies to
contracts and lAs. If a contractor's services for Superfund remedial activities under EPA
contracts or lAs are non-severable, the Agency must have obligated funds prior to September 30,
2010 even though the contractor performs all or part of the service after that date.
The severable versus non-severable services analysis may be made on a case by case
basis in consultation with the Office of General Counsel.
D.E. 10 Infrastructure and Buy American Provisions
Division A, Title XVI, 1605 of the Recovery Act (Buy American) requires that Recovery
Act funded projects for the construction, alteration, maintenance or repair of a public building or
public work, use only iron steel and manufactured goods produced in the United States. OMB
has implemented this provision for direct procurement in Federal Acquisition Regulation; FAR
Case 2009-008, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Buy
American Requirements for Construction Material, 48 CFR Part 25, Subpart 25.6. The Buy
American provision as applied to assistance agreements is implemented in 2 CFR Part 176,
Subpart B and the provisions contained therein are uploaded into IGMS as terms and conditions
for all Recovery Act assistance agreements. Under Superfund CAs, projects that are subject to
March 20, 2012 D-20 FY 12 SPIM
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OSWER Directive 9200.3-14-1G-W
the Buy American provision include, but are not limited to, projects for the construction,
alteration, maintenance, or repair of caps, wells, reservoirs, water distribution systems, and water
treatment plants. The Recovery Act provides some exceptions to the Buy American requirement.
The exceptions involve complex issues that are addressed in the OMB regulations and are
beyond the scope of this guidance3.
Some Superfund remedial activities conducted by states and local governments pursuant
to a CERCLA 104(d) cooperative agreement may be considered infrastructure investments for
purposes of the Recovery Act under the Agency's interpretation of the term "infrastructure."
Examples include, but are not limited to, projects where the principal purpose is to
construct a cap to be directly incorporated into a public building or public work project as
defined in 2 CFR 176.140(a)), or to extend a municipal water supply to residents and businesses
affected by contaminated drinking water. If a project is an infrastructure investment, the grantee
must comply with Division A, Title XVI, 1602 (Preference for Quick-Start Activities). If the
grantee is a state or local government and the project is an infrastructure investment, then the
grantee must also comply with Division A, Title XV, Subtitle A, 1511 (Certifications). Also, if
the grantee is a state or local government conducting a project that constitutes an infrastructure
investment, there are additional reporting requirements for the infrastructure investment imposed
under Division A, Title XV, Subtitle A, 1512(c)(3)(E). The Recovery Act terms and conditions
uploaded into IGMS define infrastructure investment and set forth the reporting, preference for
quick-start activities, and certification requirements applicable to infrastructure investments. The
Recovery Act does not require infrastructure investment certification or reporting requirements
for contracts and I As.
D.E.ll Davis Bacon Act
As a practical matter, the Davis Bacon Act applies to expenditures of Superfund
Recovery Act funds to the same extent as it does to remedial activities funded from EPA's annual
Superfund appropriation. Division A, Title XVI, 1606 of the Recovery Act (section 1606).
section 1606 requires that contractors and subcontractors on projects funded directly by or
assisted in whole or in part with Recovery Act funds pay prevailing wages as determined by the
Secretary of Labor under the Davis Bacon Act. However, pursuant to CERCLA, section
104(g)(l), the Davis Bacon Act already applies to "construction repair, or alteration work"
funded with annual Superfund appropriations.
Detailed information on how EPA applies the Davis Bacon Act to Superfund Remedial
work is found in the January 27, 1992, memorandum entitled "Superfund Guidance on the
Applicability and Incorporation of the Davis Bacon Act and Service Contract Acts into
Superfund Acquisitions" ("1992 Davis Bacon Guidance"). EPA will continue to insert the Davis
Bacon clauses required by FAR Part 22 when applicable into Agency contracts funded with
Recovery Act appropriations. EPA will include the term and condition that OMB prescribed at 2
CFR 176.190 for compliance with the Davis Bacon wage rate requirements in section 1606 of
the Recovery Act for Superfund CAs awarded with Recovery Act funds.
3 The Buy American provision, however, will not be applied if doing so is inconsistent with United States
obligations under international agreements. Additionally, EPA, in certain circumstances, may waive the Buy
American provision.
FY 12 SPIM D-21 March 20, 2012
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OSWER Directive 9200.3-14-1G-W
D.E.12Funds-In Interagency Agreements for Federal Facility Oversight
EPA's Federal Facility program oversees Superfund cleanups at certain properties owned
and operated by other federal Agencies. EPA may receive Recovery Act funds from other federal
Agencies to support increased oversight requirements for accelerated cleanup actions at their
facilities. These funds would be transferred to EPA through lAs for Regional Oversight Contract
support and/or EPA intramural expenses. Funds-In agreements for Federal Facilities are outside
of the scope of this guidance. Regions should work with their Federal Facility Restoration and
Reuse Office (FFRRO) counterparts for additional information.
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OSWER Directive 9200.3-14-1G-W
Exhibits
D.I. ATTACHMENT A: FUNDING AWARD NOTIFICATION TEMPLATE
Funding Notification Version 1.3
Agency Name:
Sub mission Date:
Submitter Name:
Submitter
Contact Info:
Funding
Notification
Amount
(020) Enivronmental
Protection Agency
OX/OX/2009
Name
E-mail
Award Type
Contract
Interagcy Agreement
Cooperative Agreement
CFDA
Program
Number
CFDA
Program
Title
Program
Description
Superfijnd
Superfand
Superftind
US Indicator
Y-US
v-us
Y-US
Place of
Perform
ance
County
Place
of
Perfor
mance
State
Place of
Performa
nee Zip
Code
Performa
nee
Congress
ional
District
Program
Source/Treas
ury Account
Symbol:
Account Code
Source/Treasury
Account
Symbol:
SubAccount
Code
For clarification, the table categories are:
Agency Name
Submission Date
Submitter Name
Submitter Contact Info
Funding Notification Amount
- Award Type
CFDA Program Number (if applicable)
CFDA Program Title (if applicable)
Program Description
US Indicator
Place of Performance County
- Place of performance state
- Place of Performance Zip Code
Place of Performance Congressional District
- Program Source/Treasury Account Symbol: Account Code
Program Source/Treasury Account Symbol: SubAccount Code (Optional)
FY 12 SPIM
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D.2. ATTACHMENT B: OMB DEFINITION OF OBLIGATION AND OUTLAY
The table below defines Obligations and Gross Outlays for purposes of the reporting
required in the Office of Management and Budget (OMB) guidance. Please note that the title
"Total Expenditures" has now been updated to Total Gross Outlays (As noted in OMB Circular
A-l 1, Gross Outlays are also called Disbursements).
Term
Obligations, as adjusted
Gross Outlays, as adjusted
Definition
A binding agreement that will result in outlays, immediately or in the future.
Budgetary resources must be available before obligations can be incurred
legally. This term includes obligations as well as recoveries of the current and
prior year obligations. Recoveries of prior year obligations are reported as
budgetary resources in budget execution reporting rather than as obligations.
Here is a link to the definition in OMB Circular A-l 1.
iyyBLL/Zwvw_^^
Amount of obligations paid. Includes payments in the form of cash (currency,
checks, or electronic fund transfers) and in the form of debt instruments (bonds,
debentures, notes, or monetary credits) when they are used to pay obligations.
This term includes obligations paid as well as refunds of payments made in
current and prior years. Refunds collected from prior year obligations that have
been paid are reported as budgetary resources in budget execution reporting
rather than as gross outlays. Here is a link to the definition in OMB Circular A-
11.
iyyjLL/Zwi^^
FY 12 SPIM
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D.3. ATTACHMENT C: CLASS DEVIATION APPROVAL 3/9/09
MEMORANDUM March 9, 2009
SUBJECT: Class Deviation from 40 C.F.R. §35 .6805(j)(3)
FROM: Howard F. Corcoran, Director
Office of Grants and Debarment
TO: James E. Woolford, Director
Office of Superfund Remediation and Technology Innovation (OSRTI)
This responds to your request (copy attached) for a class deviation from the requirements
of 40 C.F.R. §35.6805(j)(3) under the regulation, "Subpart 0 — Cooperative Agreements and
Superfund State Contracts for Superfund Response Actions". This provision requires EPA to
invoice a state for its final payment, with the exception of any change orders and claims handled
during reconciliation of the Superfund State Contract (SSC), upon completion of activities in the
site-specific Statement of Work (SOW). Specifically, OSRTI is requesting an exception from
these requirements to add an additional option for when EPA invoices a state for its final
payment under a SSC for all SSCs signed or amended from February 17, 2009 - September 30,
2010. An exception would permit EPA to invoice a state for its final payment on a final payment
date as negotiated by the signatories to the SSC.
As explained in your request, OSRTI believes a deviation is necessary because states will
need to match 10% (or more) of the American Recovery and Reinvestment Act of 2009 (ARRA)
funding amount ($600 million), in addition to the normally appropriated funding (approximately
$600 million for FY 2009 and FY 2010) for Superfund remedial cleanup. During the current
recession, this places a huge burden on the states to pay their cost share match by completion of
activities in site-specific SOWs for Superfund remedial clean-ups. If states cannot provide the
assurances for matching funds, EPA may not be able to obligate the ARRA's $600 million by
September 30, 20 10.
The requirements in 40 C.F.R. §35.6805(j)(3) are regulatory and not a statutory mandate.
Under these circumstances, to expedite the award of the ARRA funds, I am approving your
request. If you have any questions, please contact me at (202) 564-1903.
cc: Lauren Willis, OGC
Steve Pressman, OGC
Janet Kasper, OIG
Doug Ammon, OSRTI
Angelo Carasea, OSRTI
Barbara McDonough, OSRTI
Phyllis Anderson, OSRTI
Elizabeth Southerland, OSRTI
Robin Richardson, OSRTI
Sue Priftis, OPM
Denise Benjamin-Sirmons
Catherine Vass
Jeanne Conklin
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