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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
APR 2 3 1992	SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive 9355.2-02
MEMORANDUM
SUBJECT: Guidance on Lead Determinations For CERCLA
Fund-Financed Responses1
FROM:	Henry L. Longest II, Director /s/
Office of Emergency and Remedial Response
TO:	Directors, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Directors, Hazardous Waste Management Division
Regions III, VI, IX
Director, Hazardous Waste Division
Region X
Purpose
This Directive describes the recommended process and factors
for use by Regional Offices in determining the capability of States
to accept lead agency responsibility for CERCLA Fund-financed
response actions.2 Regions should include reference to this Directive
in their annual or other notifications to the State of planned
Fund-financed response activities.
1The policies set out in this memorandum are intended solely for
the guidance of Government personnel. They are not intended, nor can
they be relied upon to create any rights enforceable by any party in
litigation with the United States. EPA officials may decide to follow
the guidance provided in this memorandum, or to act at variance with
the guidance, based upon an analysis of specific site circumstances.
The Agency also reserves the right to change this guidance at any time
without public notice.
2This Directive applies to CERCLA Fund-financed non-enforcement
National Priorities List sites, referred to hereafter as "Fund-financed
sites." States' capabilities for lead, and the lead determination
processes, at enforcement and Fund-financed sites may be different.
Consequently, this Directive addresses only the latter.
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Backcrround
Section 104(d)(1) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA), authorizes EPA to
enter into cooperative agreements with States, Indian Tribes, and
political subdivisions to undertake response pursuant to CERCLA
section 104. Before entering into a cooperative agreement, however,
section 104(d)(1) requires the President (EPA by delegation) to
"[determine] that the State or political subdivision or Indian Tribe
has the capability to carry out any or all of such actions. . . ."
The Office of Emergency and Remedial Response (OERR) has
previously published guidance with respect to political subdivisions
and Indian Tribes. Thus, this Directive relates only to
determinations of States' capability to accept lead agency
responsibility for CERCLA Fund-financed responses, and references to
"State" do not encompass political subdivisions or Indian Tribes.3
EPA determined at the beginning of the Superfund program that
the States were capable of receiving, managing, and accounting for
cooperative agreement funds, and has routinely entered into
cooperative agreements with States since then. The National
Contingency Plan (NCP) (55 FR 8666; March 8, 1990, codified at 40 CFR
Part 300 (1990)), however, establishes lead agency and support agency
roles through which EPA and the States can cooperate in undertaking
CERCLA responses. EPA has not previously issued guidance on
determining State capability to accept and successfully carry out a
lead agency role. The process and factors described below are
intended to guide Regional Offices in making these determinations.
Process
Decisions on lead agency responsibility should be made by EPA
on a site-specific basis in conjunction with the State. Early and
continuing discussion with the State will help to ensure that lead
decisions at each National Priorities List (NPL)
3OERR published guidance with respect to political subdivisions
(Directive 9375.5-03) on May 1, 1989 and Indian Tribes (Directive
9375.5-02A) on November 28, 1989. These were partially superseded by
the publication of the Superfund Assistance Regulations (40 CFR Part
35, Subpart 0; 55 FR 22994; June 5, 1990) , although the guidance on
procedures remains relevant. The Subpart 0 regulations complement the
NCP lead/support agency concept and, among other things, govern
eligibility to receive cooperative agreement funds from EPA.
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site take into consideration the views of both EPA and of the
concerned State, and that they represent the most efficient use of
both State and Federal resources in carrying out CERCLA's intent.
Section 300.505(d)(1) of the National Contingency Plan calls for
annual planning discussions in which EPA and the States determine
priorities and designate lead responsibilities for responses to be
conducted during the upcoming year. Those discussions should include
at least preliminary assignment of lead responsibility to either EPA
or the State. This decision can and should be reviewed during each
year's planning discussions, as well as whenever either party
believes it to be appropriate, such as when new information calls
into question the continued validity of previous assumptions or
findings. Where possible, it will usually be desirable to maintain
project continuity by having the lead agency retain that role
throughout the Fund-financed portion of the response action, e.g., to
have the agency which leads the Fund-financed RI/FS retain the lead
through completion of and Fund-financed RD/RA. Lead changes are
potentially disruptive and expensive, especially during an ongoing
phase of response; any such changes will require close coordination
between EPA and the State in order to minimize this potential.
It is important to note that the lead designation does not mean
that the State may select the remedy without EPA concurrence. At all
Fund-financed sites, EPA must approve the proposed plan and Record of
Decision before issuance, although the State may recommend the
remedy. See NCP, 40 CFR 300.515(e)(1). The cooperative agreement must
reflect EPA's approval role.
The decision process is not intended to be paper-intensive, and
should not require or result in voluminous documentation. Once the
Region has conducted the analysis, those for subsequent sites
generally will need to consider only changes in the State's
circumstances in the intervening time. Agreement that the State will
take the lead for a given response should be documented in a
transmittal letter to the State affirming that the factors described
below have been satisfactorily addressed.
As States continue to develop their programs, they are likely
to seek greater involvement at NPL sites. The States are likely to
vary in the kinds and amounts of experience they are able to
demonstrate, with many having relatively new programs. An approach
that phases in State lead responsibility over time may permit such
States to demonstrate their performance in future years. This could
be especially helpful to a State without a track record or to one
which has encountered problems.
Factors
The Region's analysis of a State's capability should
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generally include three areas of the State's program: (1) Project
Management, Scheduling and Tracking; (2) Resources/Skill Mix; and (3)
Past Performance. Decisions on lead should also consider appropriate
site-specific problems, issues, and circumstances.
(1)	Project Management, Scheduling and Tracking: States should
describe and explain their process for ensuring adequate
supervision of the response action. Their ability to commit to
and meet schedules is especially important, as this issue has
typically been the most common and prominent source of Regional
Office concern with State-lead work. It is crucial that the
Region and State develop a clearly understood, realistic, and
mutually satisfactory project schedule, including procedures
and timetables for approval of all decision documents.
Discussions with the State must therefore address the State's
mechanism for ensuring it can meet that schedule. Ideally,
these discussions will be held prior to the establishment of
SCAP targets. At a minimum, discussions should verify:
Agreement on a realistic overall project schedule to be
incorporated into the Region's SCAP commitments;
Adequate statutory authority to carry out necessary
activities; and,
The existence of a mechanism/process for: monitoring the
status of the project, including interim milestone
tracking; the early identification and resolution of
issues both internally and between the State and EPA;
financial tracking; and, quarterly reporting.
(2)	Resources and Skill Mix: Decisions on lead responsibility
should be made in light of current and anticipated workload in
both the State and Regional offices. There is no mandatory or
standard workload/staff ratio for workload distribution among
EPA or State staff. Areas reviewed with the State should
include the availability of appropriate professional skills,
whether State employees or contracted staff. EPA and the State
should assess and agree on the kind, level, and number of staff
needed for the response activity under discussion. The Region's
analysis is intended to reveal whether EPA or the State is
better able to accept the lead for a given response, and that
the lead agency's existing workload does not already preclude
successful completion of the additional response action. At a
minimum, discussions should verify:
The number, type, skill mix, and expertise of staff and/or
contractor support required to manage and supervise the
project (including adequate field
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oversight) based upon site complexity, community interest,
workload distribution, and site specific considerations;
For actions which require procurement of contractor
services:
-- A procurement system which results in timely
solicitation and award of remedial contracts;
-- A well-defined process/procedure for monitoring and
evaluating contractor performance and taking corrective
action; and,
-- A process for ensuring the reasonableness of
contractor costs (e.g., government cost estimates, cost
and price analyses), and for managing change orders;
The capability for data validation and for QA/QC of
sampling and analysis documents;
Access to adequate legal support;
The ability to compile and maintain the administrative
record; and,
The capability to carry out proper community
relations/information activities.
(3) Past Performance: The quality, cost, and timeliness of the
State's previous work should be useful predictors of the
State's work on new activity. Discussion of the State's
previous performance should also identify improvements or
changes the State has made where they have had any problems. At
a minimum, discussions should verify:
The quality of the State's past work products as a
demonstration of the technical ability of State staff;
The ability to realistically plan projects and to adhere
to schedules; where slippage has occurred there has been
justification;
State recommendations, decisions and approaches have been
not inconsistent with the NCP;
The ability to complete projects within planned budgets;
where budgets have been exceeded there has been
justification for the additional costs;
The quality and timeliness of both the compilation and
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maintenance of the administrative record;
The quality and timeliness of quarterly and other required
reporting under the regulations governing cooperative
agreements;4
The ability to effectively manage contracts, as evidenced
by the timeliness of contract awards and quality of
oversight of the contractors' work efforts;
The effectiveness of State/EPA communications and working
relationships; and,
Where deficiencies were noted in work products or
approaches, timely and effective corrective steps were
taken.
(4) Site-Specific Factors: Lead assignments should consider any
relevant site-specific factors which may make the response
action especially delicate or complex. Examples include:
Complexity of the response action (e.g., multi-source
area-wide groundwater contamination);
The nature of the PRP pool, e.g., whether there are State
and/or political subdivision PRPs;
Sites crossing State boundaries or otherwise affecting
more than one State;
The State's prior enforcement efforts or other involvement
at the site;
Indian tribal involvement or impacts; and
Public sensitivity of or interest in the site.
Implementation
Experience continues to show the importance of a mutual commitment to
full and continuing communication between EPA and the State
regardless of which Agency has the lead. One method for ensuring this
has been to identify at the outset a few key
4Currently 40 CFR Part 35, Subpart 0, cited above.
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points during the response at which decision officials from both
agencies commit to meet and carefully assess progress, data, and
plans. These key points might include RI scoping, the end of the RI,
the identification of alternatives, the proposed plan, and post-ROD.
It is essential that both agencies be represented at these
meetings by officials able to speak authoritatively for their
agencies. This will ensure that both EPA and the State can go on
record early at these key points as agreeing, or as explaining their
positions on any disagreements, rather than first ascertaining each
other's view at decision points, such as when the ROD ESD, or ROD
amendments are ready to be signed.
Conclusion
The assessment of capability serves purposes beyond guiding
lead agency designation decisions for specific CERCLA responses. Such
assessments also facilitate communication and should result in a
mutually adopted State development plan which could include staffing,
training, certifications, or experience to be accumulated over a
specified period. The Superfund Memorandum of Agreement (SMOA) offers
an appropriate vehicle for documenting this. Finally, the process is
a natural and logical companion to your discussions with the State on
Core Program Cooperative Agreement (CPCA) funding, since CPCAs are
designed to promote and support the development of capable State
programs.
Please direct any questions on this to Murray Newton, Chief,
State and Local Coordination Branch (703) 308-8380 or FTS 678-8380.
cc: Regional Superfund Branch Chiefs
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