MEMORANDUM: Transmittal of the "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions"
(OSWER Directive 9375.6-11)
GUIDANCE ON DEFERRAL OF NPL LISTING DETERMINATIONS
WHILE STATES OVERSEE RESPONSE ACTIONS
APPENDIX A: Question and Answer Supplement
APPENDIX B: Instructions on Financial Tracking
APPENDIX C: Policy Announcement No 94-07
MEMORANDUM
(Signed May 3, 1995)
SUBJECT: |
Transmittal of the "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions"
(OSWER Directive 9375.6-11)
|
FROM: |
Stephen D. Luftig, Acting Director
Office of Emergency and Remedial Response
|
TO: |
Director, Waste Management Division
Regions I, IV, V, VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII, IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
|
PURPOSE
This memorandum transmits the Environmental Protection
Agency's "Guidance on Deferral of NPL Listing Determinations While
States Oversee Response Actions."
BACKGROUND
Based on the Environmental Protection Agency's (EPA)
June 23, 1993, "Superfund Administrative Improvements Final Report"
(OSWER Directive 9200.0-14-2), EPA established an
initiative to "Enhance State Role." To implement this initiative,
EPA established a work group in August 1993 to develop the
deferral guidance, and has worked with several States to pilot the
deferral concept at selected sites prior to issuing final guidance.
The work group includes representatives from all EPA
Regions, as well as representatives from several Headquarters Offices.
Additionally, several States, participating in the
deferral pilot effort as co-implementor's of the deferral program,
have offered their input to the work group.
The guidance also includes an appendix, presented in a
"question and answer" format, that responds to several questions
that arose during development of the guidance. A second appendix
provides instructions regarding the use of CERCLIS and other codes
to allow for the tracking of deferral activities and cooperative agreements.
DISCUSSION
Components
The deferral guidance provides a framework for Regions,
States, and Federally-recognized Tribes to determine the most
appropriate, effective, and efficient means to address more sites
more quickly than EPA otherwise would address them. The Agency
also recognizes that several States already have fully developed
cleanup programs in place, while others are continuing to
strengthen their capabilities. Therefore, EPA expects to
implement the guidance in a flexible manner to account for
differing capabilities of participating States and Tribes. As a
result of site-specific circumstances or differing but equally
effective State or Tribal program practices, Regions may choose to
act at variance from certain provisions of the guidance. Under
the deferral program:
-
Deferral may be implemented on either an area-wide or site-specific
basis;
-
Response actions will be conducted under State or Tribal authority;
-
Viable and cooperative PRPs will agree to pay for and conduct
response actions--Superfund Trust funds generally will not be
made available for conducting response actions;
-
Response actions must be protective of human health and the
environment and meet State or Tribal and Federal applicable
requirements;
- A site may not be deferred if the affected community has
significant, valid objections;
The level of EPA oversight of States and Tribes will be
negotiated with the Region; and
-
Once a deferral response is complete, EPA will remove the
site from CERCLIS and will not consider the site for the NPL
unless the Agency receives new information of a release or
potential release that poses a significant threat to human
health or the environment.
Changes Based On Comments
In March 1994, a draft guidance was circulated to Regions and
Headquarters Offices for concurrence. Based on comments received
as well as subsequent work group efforts, several substantive
changes were made to the guidance. A final draft of the guidance
was distributed to the States in February 1995, and a number of
additional changes have been made based on new insights
contributed by States and Regions.
-
The guidance conforms with the Agency's recognition that
pilot projects currently underway are at various stages in
the listing process;
-
Regions should notify Headquarters before deferring a site
for which an HRS package has been initiated (notification
before deferring site is not required);
-
States and Tribes should inform affected communities of a
proposed deferral 30 days prior to requesting deferral from
the Region, seek community affirmation for the deferral, and
document their interactions with communities;
-
Regions and States or Tribes should agree to a six month
time frame (with an extension of up to a year) to conduct PRP
negotiations and should agree to schedules for conducting
response actions at each site;
-
States may use removal resources at deferred sites where PRPs
become recalcitrant or bankrupt.
-
Deferral sites at which cleanups are successfully completed
will be removed from CERCLIS.
Main Work Group Issues
The changes to the guidance do not reflect work group
consensus; they represent a compromise among different views that
works to maintain the balance between program flexibility and accountability.
Work group members raised concerns about several
aspects of the guidance, the most significant of which are
discussed below.
Through these and numerous additional comments, work group
members and others have suggested that specific components of the
guidance are overly-prescriptive. However, while this guidance
presents EPA's view of the national program, we reemphasize our
intent that a flexible approach be taken in implementing the
deferral program. Consequently, although the Agency has declined
to make certain changes recommended by Regions and States, we
recognize the Regions' need to vary from the guidance, as the
occasion warrants, in order to best serve the public and the environment.
ACTION
The deferral program is an excellent administrative mechanism
to enable States and Tribes, under their own laws, to respond at
sites that EPA would otherwise not soon address. Under this program,
the Agency anticipates that responses may be quick and efficient,
yet still protective of the environment and of communities'
rights to participate in the decision-making process.
PRPs who are willing to do cleanups also will benefit from
reduced response costs and fewer layers of government oversight.
I encourage you to support and assist the States and Tribes in
your Regions to take opportunities to enter into deferral
agreements with EPA. Furthermore, Regional Decision Teams and
other Regional assessment teams should work together with States
and Tribes to identify these opportunities as part of the site
prioritization process, rather than wait until after site
assessment has commenced.
If you would like further information regarding
implementation of the deferral program, contact Steve Caldwell,
Acting Chief of the Site Assessment Branch, Hazardous Site
Evaluation Division (703-603-88S0) , or Murray Newton, Chief of the
State and Local Coordination Branch, Hazardous Site Control
Division (703-603-8840).
Attachment
OSWER Directive 9375.6-11
EPA/540/F-95/002
PB95-963223
GUIDANCE ON DEFERRAL OF NPL LISTING DETERMINATIONS
WHILE STATES OVERSEE RESPONSE ACTIONS
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, D.C. 20460
The policies set forth in this directive are intended solely as guidance. 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 directive, or to act at variance with the directive, on the basis of an analysis of specific circumstances. The Agency also reserves the right to change this directive at any time without public notice.
PURPOSE
This directive provides guidance on the Environmental.
Protection Agency's (EPA) Superfund State and Tribal deferral program,
under which EPA may defer consideration of certain sites
for listing on the National Priorities List (NPL), while
interested States, Territories, Commonwealths, or Federal1y recognized
Indian Tribes compel and oversee response actions
conducted and funded by potentially responsible parties (PRPs).
Once the necessary response actions at a site are completed
successfully, the site will be removed from the Comprehensive
Environmental Response Compensation and Liability Information
System (CERCLIS), and EPA will have no further interest in
considering the site for listing on the NPL, unless it receives
new information of a release or potential release that poses a
significant threat to human health or the environment.
INTRODUCTION
The "Superfund Administrative Improvements, Final Report" of
June 23, 1993 (OSWER Directive 9200.0-14-2), identified numerous
initiatives to improve the Agency's implementation of the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), as amended. The deferral program, developed under
the initiative to "Enhance State Role," was intended to "encourage
qualified, interested States to address, under State laws, the
large number of sites now in EPA's listing queue, thereby
accelerating cleanup, minimizing the risk of duplicative
State/Federal efforts, and offering PRPs a measure of confidence
that only one agency will address the site." Although the primary
goal of the deferral program is to accelerate the rate of response
actions by encouraging a greater State or Tribal role, the
priority for increasing this rate must be balanced with two other
crucial Agency priorities: 1) maintaining protective cleanup
levels at sites, and 2) ensuring that the public's right to
participate in the decision-making process is well supported.
This directive is divided into sections that address:
criteria that a State, Territory, Commonwealth, or Federally
recognized
Indian Tribe (hereafter the term "State" also includes Territories,
Commonwealths, and Tribes) should meet to participate
in the program; criteria for determining which sites are eligible
for deferral; procedural requirements; and provisions for site
cleanup levels to be achieved at deferred sites, oversight.,
financial assistance, community participation, and response action
completion or termination. Although these provisions establish a framework for a national deferral program, EPA recognizes that
State cleanup programs have differing capabilities and methods of implementation.
To best accommodate these differences and achieve
response actions most quickly and effectively, the Agency expects
to implement the provisions of the guidance in a flexible manner.
Regional implementation of this guidance may vary based on site-specific
circumstances or
the established capabilities and practices of a State program.
This guidance also includes two appendices. Appendix A
responds to several questions that arose during development of the
guidance and is presented in a "question and answer" format.
Appendix B provides specific instructions regarding the use of
CERCLIS and other codes to allow for the tracking of deferral
activities and cooperative agreements. Throughout this guidance
and its appendices, the terms "State deferral" and "deferring to a
State" are defined as EPA's deferring consideration of a site for
NPL listing in favor of State action.
IMPLEMENTATION
1. Criteria for a State Deferral Program
A State may participate in the deferral program on an area-wide
or site-specific basis. Under the area-wide program, the
State and Region will agree to certain generic procedural and
other requirements (e.g., roles and responsibilities, cleanup
levels, public participation), and address site-specific concerns
(e.g., site eligibility and selection requirements, response
schedules, EPA oversight) through separate documentation. Under
the site-specific approach, the State and Region will negotiate
separate terms and conditions for the deferral of individual sites
(see below). A State hazardous waste management or remedial
program should meet the following general criteria regarding
statutory and administrative authority and program capability to
participate in the area-wide deferral program.
a. |
Statutory, Regulatory, or Administrative
Provisions. The State program should have statutory,
regulatory, or administrative provisions which ensure
that remedies at deferred sites are protective of human
health and the environment. The program also should
have the statutory authority and administrative
provisions to pursue all necessary enforcement elections
at a site, ranging from mechanisms to identify viable
liable parties, to authority to compel PRPs to conduct
"CERCLA-protective cleanups" (as defined in Section
III). The evaluation of these provisions and
authorities is not limited to comparing the State's law
to CERCLA, but may consider, when relevant, the State's
past and current ability to select protective remedies,
and to enter into and enforce consent agreements; or
orders with PRPs. |
b. |
Program Capability. The State program should
have sufficient capabilities, resources, and expertise
to ensure that a CERCLA-protective cleanup is conducted
as well as coordinate with EPA, other interested
agencies, and the public on the various phases of
implementation. Estimates of the State's capability
may consider any significant past response actions the
State has undertaken through the Federal Superfund
program or its own program, the effectiveness of the
State's program to achieve a protective cleanup, and
the State's projected workload. The State should have
the following capabilities. |
i. |
Resources. The State should have adequate,
capable staff, funds, and other resources to conduct
enforcement actions, including PRP searches,
negotiations with PRPs, monitoring, oversight:, and
litigation. |
ii. |
Monitoring and Oversight. The State should
have the capability to maintain adequate supervision
of response actions, including, but not limited to
assuring and controlling the quality of data
sampling and analysis, risk characterizations or
assessments, and design and implementation of
remedies; monitoring project progress; and
communicating with EPA program managers. |
iii. |
Community Participation. The State should be
able to involve affected communities in a manner
that fosters appropriate community participation (as
described in Section VII) in decisions regarding
response actions at deferred sites. |
To establish a clear understanding between the State and EPA
that the State has the authority and capability to participate in
an area-wide deferral program, the State program director and
Regional Superfund program director should enter into a generic
deferral Memorandum of Agreement certifying these criteria are met.
As reasonable and appropriate, the Region may require the
State to provide specific information to confirm EPA's basis for
entering into the deferral agreement. Upon request, the Region
should provide the basis for any decision declining to defer to
the State.
If a State is interested in deferral and does not meet all of
the criteria for establishing an area-wide deferral program, the
Region and State may, at the Region's discretion, enter into site specific
deferral agreements, provided that site eligibility
criteria are met. For example, a site at which the State enters
into an enforceable agreement with a PRP to conduct a CERCLA protective
cleanup, even though the State does not have the
statutory authority to compel response actions, may be appropriate
for deferral. The Region may determine, as needed, that closer
oversight and the application of other conditions are neccessary a successful response action.
2. Sites Eligible for Deferral
Under the area-wide approach, the Region and State should
mutually determine, generally based on an annual submission of
deferral site candidates proposed by the State, which sites should
be should. The Region and State should determine the
eligibility of sites for deferral using the following criteria.
a. |
State Interest. The State must express interest
in having the site deferred to it. The State and EPA
also should agree that the State will address the
deferred site sooner than, and at least as quickly would expect to respond. -(See Appendix A.) |
b. |
CERCLIS Listing. The site proposed for deferral
must be included in the CERCLIS inventory. |
c. |
NPL Caliber. The deferred site should be "NPL
caliber" as defined in the October 12, 1993, OSWER Directive,
"Additional Guidance on 'Worst Sites' and
'NPL Caliber Sites' to Assist in SACM Implementation"
(OSWER Directive 9320.2-07A) or the December 1992 fact
sheet "Assessing Sites Under SACM--Interim Guidance"
(OSWER Directive 9203.1-05I, Vol. I, No.4). Sites
that are less than NPL caliber are generally not of
Federal interest and the deferral program requirements need not apply at these sites. However, such sites may
be deferred, should a State desire this option. |
d. |
Viable and Cooperative PRPs. Under the referral
program, viable and cooperative PRPs generally must be
available to conduct the response actions at a deferred
site. The PRPs at a deferred site should be willing to
enter into an enforceable agreement with the State to
conduct all response actions (including providing for
operation and maintenance) at the site and repay any
State and Fund-financed response costs related to the
deferral. Except under limited circumstances (i.e.,
where PRPs become recalcitrant or bankrupt, as
described in Section VI), a State should not be using
Superfund resources to conduct response actions at
deferred sites. If the State is a PRP at the site, the
Region should consider carefully the implications of
deferring the site before making a decision. At sites
where no viable PRPs exist, or where a State is willing
to agree to settle for less than the full cost of the
response action, the State must demonstrate that it has
adequate resources of its own or viable agreements with
other parties (e.g., prospective purchasers) to pay the
necessary costs for the response action. (See Appendix
A.) |
e. |
Timing. Generally, a site is eligible for deferral
until a State or contractor has been tasked to develop
a site-specific Hazard Ranking System (HRS) package for
it. If, however, the Region or State has already
issued a task or work assignment to develop the
package, the Region should defer the site only where
the State provides a compelling argument why the
listing process should be halted. In such cases, the
Region should consider carefully the history of the
State's involvement at the site and community
acceptance of the deferral in making the determination
whether to defer the site. In rare instances, sites
proposed for the NPL, or sites for which an HRS package
has been submitted to Headquarters, may be eligible for
deferral. Sites on the final NPL are not eligible
deferral candidates, though the Region may, through a
cooperative agreement, assign to the State the lead for
response at such sites. The Region should consult with
the Office of Emergency and Remedial Response before
deferring any site for which an HRS package has been
initiated. (See Appendix A.) |
f. |
Community Acceptance. Community acceptance of a
deferral to the State is an important site eligibility
criterion, and the State should work to gain and maintain community acceptance of the site's deferral to
the State. The State should take appropriate steps to
inform the affected community and other affected
parties (e.g., communities downstream from the site,
PRPs, Natural Resource Trustees) of the proposed
deferral 30 days prior to requesting that the Region
defer the site and should seek affirmation from the
community of its proposal. As appropriate, the State
also should explain to the community and other parties
any differences between a response under the deferral
program and a response conducted under the National Oil
and Hazardous Substances Pollution Contingency Plan
(NCP), including, but not limited to, any differences
in cleanup levels and public involvement.
Additionally, the State should document all of its
interactions with the community and inform the Region
of possible opposition to the deferral.
If, at any time before a site is deferred to the
State, the Region, after consulting with the State,
determines that the community or other parties have
significant, valid objections to the deferral that
cannot be resolved, the Region should not defer the
site. If, at any time after a site is deferred to the
State, the Region determines that the community or
other parties have significant, valid, irresolvable
objections to the deferral, the Region should terminate
the deferral status of the site (described in Section VIII).
The Region should provide appropriate
explanation to the community and other parties of
decisions that do not favor the community's or other parties'
objections. (See Appendix A.) |
g. |
Sites Involving Tribal Lands. A site on or
involving land or other resources under Tribal
jurisdiction may be deferred to a Federally-recognized
Tribe if the appropriate criteria are met. EPA will
not defer such a site to a State unless the affected
Tribe(s) agrees to the deferral through a three-]party
agreement with the State and the Region. |
h. |
Federal Facilities. Consistent with EPA's
current listing policy for Federal facilities, such
sites are ineligible for deferral from NPL listing. |
i. |
Complicating Factors. The Region, in
consultation with the State, should consider factors
which may present significant obstacles to successful
response actions at the proposed deferral site. Such
factors include, but are not limited to complexity and
degree of the environmental threat posed by the contamination; site history; current or anticipated
Fund-financed activity; the PRPs involved at the site;
and environmental justice and other community concerns. |
3. Cleanup Levels
Section 121(b)(1) of CERCLA sets general standards for
remedial actions carried out under CERCLA section 104 or secured
under CERCLA section 106. These standards have been elaborated
further in the NCP. Under section 300.430(f), a remedy conducted
pursuant to the NCP must be protective of human health and the
environment and must comply with applicable or relevant and
appropriate requirements. Under the deferral program, although
the State will oversee the response action at an NPL caliber site
using its own authorities, the quality of the response action
conducted still should be substantially similar to a response
required under CERCLA, i.e., it should be a "CERCLA-protective
cleanup." The following criteria define a CERCLA-protective cleanup.
a. |
Protectiveness. A CERCLA-protective cleanup at a
deferred site should be protective of human health and
the environment as defined generally by a 10-4 to 10-6
risk range and a hazard index of 1 or less. Generally,
the State also should consider giving preference to
solutions that will be reliable over the long term. |
b. |
Standards. The remedy selected at a deferred site
must comply with all applicable Federal and State
requirements. Additionally, the State should generally
select a remedy which provides a level of
protectiveness comparable to relevant and appropriate
Federal requirements for the site. (See Appendix A.) |
4. Procedural Requirements
Procedural requirements for the deferral program should not
be burdensome. Once the State and Region agree on which sites to
defer to the State, the Regional Superfund program director should
identify to the State program director in writing which sites EPA
is deferring to the State. The Region also should indicate in
CERCLIS that a site has been deferred to allow for appropriate tracking.
(See Appendix B.)
The State and the Region should also agree to clarify mutual
expectations for State-EPA interaction and each party's
responsibilities at deferred sites. As mentioned in Section I,
such expectations may be incorporated into a generic deferral
memorandum, with documentation regarding site-specific information being added to the agreement or provided separately as appropriate. Minimally, the State and Region should agree to the
following provisions in either an area-wide or a site-specific agreement.
a. |
Roles and Responsibilities. The Region and
State should agree on the relationship between, and the
roles and responsibilities of, EPA and the State for
all phases of the response action at deferred sites.
At a minimum, the agreement should address the degree
to which EPA will provide oversight, document review
(including review of the selected remedy), and
technical or financial assistance. |
b. |
Schedule for Performance. The State and Region
should agree to a timeframe for commencing and
conducting actions, including negotiating settlements
with PRPs for each site. State negotiations with PRPs
generally should be completed within six months of
initiation, although the Region may allow the state up
to six additional months to conclude its negotiations,
as appropriate negotiation schedules should identify major
milestones by which EPA can track reasonable progress
at each deferred site. |
c. |
Documentation. The State should agree to make
available risk assessment data, remedy selection
decision documentation, and supporting analysis for
each site to allow for adequate public involvement and
EPA oversight. |
d. |
Cleanup Level. The State should agree to provide
for a CERCLA-protective cleanup (as described in
Section III) at each deferred site. |
e. |
Community Participation. The State should agree
to involve affected communities in decisions regarding
the response action (as described in Section VII) at
each deferred site. |
f. |
Natural Resource Trustees. The State should
agree to notify promptly the appropriate State and
Federal trustees for natural resources of discharges or
releases that are injuring or may injure natural
resources related to a deferred site. The Stat:e also
should include the trustees, as appropriate, in
negotiations with PRPs. |
5. EPA Oversight of States
At all deferred sites, the State has responsibility, with
minimal EPA involvement, to provide for a timely and CERCLIS
protective cleanup and to support the public's right of
participation in the decision-making process. The Region should
work with the State to determine the appropriate level of
oversight that the Region should exercise at each site. The
Region may choose to conduct more or less oversight of the State
at any particular site, depending on the State's experience, the
complexity of the site, or other factors. The Region also should
consider its assessment of the progress being made at deferred
sites during any consideration of new proposals for sites to defer.
Finally, the Region and State should consider
incorporating the following practices, as appropriate, in any
agreement between the Region and State regarding oversight.
a. |
Review Deferral Program Criteria. As needed,
the Region should reconfirm the status of the State's
authority and program capability to ensure the
continuing success of response actions at current and
anticipated deferral sites.
|
b. |
Report on State-EPA Agreement Conditions. The
State should report to the Region at least annually on
whether the conditions agreed upon in the State--EPA
agreements are being met. The State also should report
to the Region at least semi-annually any difficulties
it is having meeting agreement conditions at any
deferred sites, including negotiating settlements with PRPs. |
c. |
Annual Review. The Region should meet at least
annually with the State to discuss the State's progress
at deferred sites, which should include a review of
reports submitted by the State," performance schedules,
attainment of milestones in site-specific agreements,
data quality assurance and control, cooperativeness of
the PRPs, cost recovery of site-specific funds awarded
to the State under cooperative agreements with EPA, and
participation of the affected community. Any State
deferral events that are tracked in CERCLIS should be
coded appropriately. (See Appendix B.) |
6. Financial Assistance to States
As noted above, the State is responsible for acquiring the
resources to conduct all response actions at deferred sites under
the deferral program. A fundamental expectation of the deferral
program is that viable PRPs will reach settlements with the State
to respond at deferred sites; except as described in this Section,
the deferral program generally does not anticipate that Fund
resources will be used to conduct response actions at deferred
sites.2 Consequently, PRPs or some other non-Federal source should
provide the resources for site-specific activity, including
enforcement and PRP oversight.
In some cases, the State may need resources to conduct
certain activities, or supplement or strength deferral program.
As described below, the Region may enter into
cooperative agreements with the State to provide funding to the
State for certain purposes. Generally, the State should agree to
seek to recover site-specific funds awarded to it, either from the
PRP through an enforceable agreement or from another identified
source. The State and Region also should agree in advance In how
to allocate recovered costs. If the Region intends to provide
deferral funds to the State, the Region should identify its
resource needs for the deferral program in its annual budget
development process.
a. |
Core Program and Site-Specific Response
Funding. The Region may award to the State non-site-specific
resources under a Core Program Cooperative
Agreement to develop or enhance its overall deferral
program implementation capability. The Region may also
award funds to the State to conduct enforcement and
oversight/administrative-related activities through a
deferral site-specific enforcement or support agency
cooperative agreement or provide deferral site-specific
funding for site assessment where an assessment has not
been conducted or completed. In the event that PRPs at
a deferred site become uncooperative or bankrupt, the
Region may, as appropriate, enter into a cooperative
agreement with the State for non-time-critical removal
or preremedial activity until settlements with PRPs are
reached, the response action is completed, or until the
deferral status of the site is terminated. (See
Appendix A.) |
b. |
Subpart O Requirements. A State receiving funds
through a cooperative agreement must meet all
applicable requirements of 40 CFR Part 35, Subpart O.
The terms of the cooperative agreement will be subject
to all appropriate Regional oversight. Cooperative
agreement awards for deferred sites should use the subject
class number 41.90 and use appropriate activity codes.
(See Appendix B.) |
7. Community Participation
Effective community involvement is a crucial aspect of
response actions at NPL sites and is no less important for
response actions at deferred sites. As described above, the State
should assure that it will involve the affected community in the
decision-making process at a deferred site and that the affected
community does not have significant, valid objections to deferring
the site to the State. The following conditions also should be
met at a deferred site.
a. |
Comparability with the NCP. The Region should
be confident that the principles of public involvement
embodied in the NCP are maintained at deferred sites.
The State must ensure that the impact of its efforts to
involve the public, especially during the remedy
selection and response action completion phases, will
be substantially similar to the intended effect of
implementing the procedures required by the NCP. (See
Appendix A.) |
b. |
Information Assistance for Communities. EPA
does not have the authority to award Technical
Assistance Grants at sites that are not on or proposed
to the NPL. However, at each NPL caliber site that EPA
defers to the State, the affected community should be
able to acquire assistance to interpret information
with regard to the nature of the hazard, investigations
and studies conducted, and implementation decisions at
the site. As appropriate, the State should provide
resources or direct assistance to the affected
community at the site for these purposes. If funds are
necessary to provide assistance to the community, the
State should seek such funding from the PRPs at the
site if the State cannot provide funding itself. |
8. Completion of State Response Action
a. |
Certification and Confirmation. Once the State
considers the response action at a deferred site to be
complete, the State should certify to the Region and
the affected community that it has successfully
completed its response and achieved its intended
cleanup levels. As part of the certification, the
State should submit to the Region response action
completion documentation substantially similar to that
described in the June 1992 OSWER Directive "Remedial
Action Report; Documentation for Operable Unit
Completion" (OSWER Directive 9355.0-39FS).
Upon receiving the State's certification, the Region
should confirm in writing that the site response has
been completed. Alternatively, within 90 days after
receipt of the certification, the Region may initiate a
deferral completion inquiry to validate the
certification. As part of the inquiry, the Region
should work with the State to address any deficiencies
hindering the confirmation and time frame for
completion of the inquiry. Upon completing the
inquiry, the Region should either confirm completion of
the response or terminate the deferral status of the
site (described below). If the Region does not confirm
the response completion, terminate the deferral, or
initiate an inquiry within 90 days of its receipt of
the State certification, the status of the site will be
recorded in CERCLIS as a deferral completion. (See
Appendix B.) Once the response at the site is recorded
as complete, the site will be removed from CERCLIS and
will not be evaluated further for NPL listing or
another response unless EPA receives new information of
a release or potential release at the site that poses a
significant threat to human health or the environment. |
b. | Termination of Site Deferral Status. Pending
30 days notice to the State, the Region should
terminate the deferral status of the site, if, at any
time during or upon completion of a response action,
the Region determines that the response is not CERCLA protective,
is unreasonably delayed or inappropriate,
or does not adequately address the affected community's concerns.
The Region also should terminate the deferral
if significant PRPs breach their agreements with the
State and the State is unable to enforce compliance or
provide other sources of funding to complete the
response action. In addition, the Region may terminate
the deferral and implement emergency or time-critical
response action without 30 days notice to the State if
the Region determines such action is necessary. The
State may also choose at any time, after 30 days notice,
to terminate the deferral for any reason.
Upon terminating the deferral status of the site,
the Region should immediately consider taking any
necessary response actions and should initiate
consideration of the site for NPL listing. The Region
and State should coordinate efforts to notify the
community and PRPs of the termination of the deferral.
These actions will assure the public that EPA will
continue to respond at a site where response actions
have begun and will encourage PRPs to forge and fulfill
successful agreements with the State. At the Region's
request; the State should provide to the Region all
information in its possession regarding the site for
which the deferral status has been terminated. |
APPENDIX A: Question and Answer Supplement
Question and Answer Supplement to the
Guidance on Deferral of NPL Listing Determinations While
States Oversee Response Actions
PURPOSE
This appendix supplements the "Guidance on Deferral of NPL
Listing Determinations While States Oversee Response Actions"
(OSWER Directive 9375.6-11). This appendix provides responses to
significant questions that arose during development of the
guidance and is presented in a "question and answer" format.
BACKGROUND
Following the June 23, 1993, "Superfund Administrative
Improvements, Final Report," the Environmental Protection Agency
(EPA) established a work group to develop the Superfund State
deferral guidance. This guidance intends to enable Regions and
States to determine the most appropriate, effective, and efficient
means to address more sites more quickly than the sites otherwise
would be addressed. As the guidance was drafted, work group
members and others raised numerous implementation questions.
While many questions have been resolved in the final guidance,
this appendix provides clarifying responses to remaining
significant questions. The questions are not divided by category,
but roughly follow the outline of the guidance. Throughout this
document, the term "State" also includes Territories,
Commonwealths, and Federally-recognized Indian Tribes.
QUESTIONS AND ANSWERS
9. How will EPA determine whether a State can address a site
"sooner than, and at least as quickly as," EPA?
The deferral program is intended to enable States to
conduct responses at sites where EPA would not otherwise
respond in the near future. Deferral should not indefinitely
postpone commencement of site response nor prolong the
expected duration of a response; hence, the guidance states
that a State should agree to address deferred sites sooner
than EPA would expect to commence responding, and at least as
quickly as EPA would expect to implement its response. This
objective assures that deferred sites will be addressed and
not merely be shifted from the Federal queue.
If a Region already has developed a schedule for
conducting response activity at a site, this schedule may
serve as a basis for setting expectations for the State's response.
Site-specific response schedules, including PRP negotiation
time frame incorporated into deferral
agreements established between the State and the Region.
l0. What particular factors should the Region consider before
deferring a site at which the State is a potentially
responsible party (PRP)?
Although a State may be best able to conduct a response at
a site at which it is a significant PRP, the Region and the
State need to consider carefully the potential for conflict
of interest, or the appearance of conflict of interest. Any
such appearance could diminish the credibility of the State
program with the public and could thus threaten its effectiveness. Close coordination with the affected
community at such a site will be critical to ensure that the
public does not perceive any conflict of interest and agrees
that a State response is most appropriate.
11. What factors constitute a "compelling argument" to defer a
site for which an Hazard Ranking System (HRS) package has
been developed?
Although a site will generally be ineligible for deferral
after a State or contractor has been tasked to prepare an HRS package,
the Region may defer such a site if the State
provides a compelling argument why the listing process should
be halted. The Region ultimately will determine whether the
State proposal is viable, but any proposal to defer such a
site should be documented and contain the following information: an explanation of the benefit of the deferral;
an enforceable agreement with the PRPs (or other non-Fund
sources); a time table providing for a response at least as
timely as that proposed by EPA; and assurances that all costs
of the response, including preparation of the HRS package,
will be borne by the PRPs (or other non-Fund sources).
12. When and how should a State inform the community of a
proposed deferral? Who should be informed?
Under the deferral program, a State must demonstrate, on a
State-wide basis or on a site-specific basis, that it has the
capability to fully involve affected communities in decisions
regarding response actions at sites both before and after the
sites have been deferred. Furthermore, a State should notify
the affected community 30 days prior to requesting the Region
to defer a site and should seek the community's affirmation
of a deferral proposal.
However, the January 1992 EPA directive, "Community
Relations in Superfund: A Handbook" (OERR Directive 9230.0-
03C), recognizes "there can be no universal approach for
community relations" and that the "issues of importance to
the public, the level of concern, the history of public
involvement, and the social structure of the community will
vary from site to site." Thus, although the deferral
guidance offers some provisions to ensure that communities at
deferral sites are adequately involved, the guidance does not
prescribe a particular means that a State must use to achieve
this end. Rather, the State will generally have the
discretion and the responsibility to determine the most
appropriate means to identify, notify, and continue to
involve communities affected at deferral sites.
13. How will the Region determine what are significant, valid
community objections that would deny or terminate a deferral?
Characterizing community concern at a deferred site often
will be a difficult process. Different and changing levels
of community awareness, interest, or comprehension;
differences in the capabilities of various community members
to make themselves heard or wield political influence; even
attempts to precisely define the affected community at a site
will preclude decision-making based on quantitative analysis.
Full community unanimity is rare; and in virtually every
community, dissenting opinions will persist. Therefore,
while community acceptance is a critical aspect of the
deferral program, community consensus is not required for deferral.
The State and the Region must rely on their best
professional judgment to determine the composition of the
affected community and who represents it, the validity of the
concerns that the community expresses, the opportunity to
accommodate community concerns, and the potential impact of
proceeding without community consensus. However, when
considering who represents the affected community, the State
and Region should take particular care to be cognizant of
populations that may be downwind or downstream of the site,
as well as be aware of environmental justice issues that may
have bearing at the site. If community objections that the
Region determines to be significant and valid cannot be
resolved between the community, State, and EPA, the Region
should reject or terminate the deferral. Also, to assure
that community concerns are addressed fairly, the State, with EPA involvement as necessary, should document the response to
the community's objections.
14. How might environmental justice considerations affect
response action at a deferred site?
Because sites that are deferred should receive attention
more quickly than they otherwise would, effective deferral
responses may provide a useful mechanism for resolving some
environmental justice concerns. At sites where environmental
justice is an issue, a State must show extra sensitivity to
the special needs of the community by tailoring its outreach
efforts to the community as well as facilitating access to,
and enabling interpretation of, information. Establishing a
positive rapport with the community at a deferral or any
other site should result in wider acceptance of a proposed response.
Additionally, because the Agency is committed to
addressing environmental justice issues in all its programs,
the State should expect the Region to be especially
interested in sites associated with environmental justice concerns. The Region should consider playing a greater role
in communicating with the community during consideration of
such a site for deferral, review State interaction with the
community during the response, and coordinate with the State
to respond directly to concerns raised by the community.
15. What must a State do to ensure that the impact of its
community involvement program is "substantially similar" to
the intended effect of implementing the procedures required
by the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP)?
The 1992 OERR Directive "Community Relations in Superfund:
A Handbook" (Directive 9230.0-03C) identifies three overall
objectives, or principles, upon which the implementation of
the Superfund community relations program is founded. These
principles are:
-
Provide the public the opportunity to express comments
on and provide input to technical decisions;
- Inform the public of planned or ongoing actions; and
- Identify and resolve conflicts.
-
These principles, though not identified specifically in
the NCP, encompass the community involvement procedures which
the NCP describes. While State adherence to the specific procedures of the NCP is not required for the deferral
program, a State community relations program should embrace
similar principles and be able to demonstrate its ability to
implement such principles at deferred sites.
16. Are mixed-ownership (Federal/non-Federal
candidates for deferral?
Federal facilities currently are not eligible for the
deferral program. Sites of mixed Federal and non-Federal
ownership, however, may be eligible deferral candidates
depending on site-specific circumstances. The Region should
consult with the Office of Emergency and Remedial Response in
making this determination.
17. Must a risk assessment be performed at every deferred
site? Maya State allow PRPs to perform risk assessments?
As appropriate to the circumstances at each deferred site,
the State should characterize the nature of, and threat posed
by, the hazardous substances and materials at the site and
should gather data necessary to support the analysis and
design of potential response actions. In some instances, the
State may prefer to have a PRP conduct this characterization
In either case, the State should have demonstrated its
ability to conduct or oversee risk characterizations or
assessments in accordance with the capability criteria
identified in Section I of the guidance.
18. Will EPA assist States in identifying applicable or
relevant and appropriate requirements at deferred sites?
Upon request from the State, the Region should provide
assistance to the State in interpreting CERCLA requirements,
including identification of Federal applicable requirements
and Federal relevant and appropriate requirements. The State
retains the responsibility and discretion to identify and
implement State applicable or relevant and appropriate
requirements at a deferred site, including those that are
more stringent than Federal standards.
19. Can deferred sites be exempted from obtaining permits for
activities conducted on-site?
The Agency has determined that CERCLA does not authorize
permit exemptions for response actions carried out under the
deferral program. CERCLA section 121(e) exempts on-site
remedial action, which is selected and carried out in
compliance with CERCLA section 121, from Federal, State, and
local permit requirements. Deferral response actions, however, will be conducted under State authority, and
therefore cannot use the exemption provision.
20. Can Federal funds pay for State-lead removal actions?
Under the deferral program, PRPs are generally expected to
conduct all appropriate responses at deferred sites. The
Region should not defer sites at which the State anticipates
using Fund resources to conduct removal activities. However,
should PRPs at a deferral site become recalcitrant or bankrupt, the State may receive a removal cooperative agreement, provided "a planning period of more than six
months is available" (40 CFR 35.6205), and pursuant to other
40 CFR Part 35, Subpart 0, requirements.
21. Must States document expenditures of Federal funds at
deferred sites?
Any funds that a State receives through a cooperative
agreement with EPA are subject to all applicable requirements
identified in 40 CFR Part 35, Subpart O. For site-specific
expenditures incurred by a State under a cooperative agreement,
including any site assessment activity or HRS
scoring that takes place after a site is deferred, the State
is required to track expenses by site, activity, and operable unit,
as applicable, according to object class. Non-site-specific
funds awarded to a State through a Core Program
cooperative agreement also are subject to the applicable
requirements in 40 CFR Part 35, Subpart 0, but are not
expected to be recovered by the State.
22. Under what conditions would site assessment activities be
performed at a deferred site?
At many sites that will be deferred, a site assessment
will have already taken place, the results of which will
indicate that a site is NPL caliber. In some cases, however,
a Region may agree to defer a site that the State and Region
suspect is NPL caliber even though a site assessment has not
been completed. At such sites, the Region and State may
determine that completing a site assessment is appropriate.
Generally, however, the PRPs at a deferred site should agree
to pay for the site assessment if one has not already been
conducted. (See also Question 16.)
23. Who will recover the costs of site-specific cooperative
agreements that EPA awards to States under the deferral
program? What will happen to recovered funds?
Because the value of cooperative agreements at deferred
sites typically will be very low, EPA will generally not-specific
cooperative agreement for deferral into which the
Region enters with the State should stipulate that the State
will seek to recover from the PRPs recoverable costs incurred
under the cooperative agreement. Regions also should make
clear to States that EPA does not expect to award funding
indefinitely to States under the deferral program; rather the
Agency expects that sums recovered by the States will be used
to build the State capability to fully implement deferral
programs without EPA funding in the future.
24. Would a response action be considered complete if waste
had been removed off-site, but a complete cleanup had not
been conducted?
Response actions at deferred sites should be CERCLA-protective,
as described in Section III of the guidance. If
a response action does not meet this criterion, the Region
should terminate the deferral, immediately consider taking
necessary response actions, and initiate consideration of the
site for NPL listing.
EPA expects that partial cleanup of an NPL caliber site
would not reduce the site's HRS score below the threshold for
eligibility for NPL listing. However, if the Region believes
that a partial response could preclude a deferred site's
eligibility for NPL listing where a site assessment had not
been completed, the Region should have a site assessment
conducted before any deferral response is undertaken. At a
terminated deferral site, where a site inspection was not
commenced prior to the response action, the Region should
refer to the September 1993 OERR Publication "The Revised
Hazard Ranking System: Evaluating Sites After Waste Removals"
(OERR Directive 9345.1-03FS) to evaluate the site's
eligibility for NPL listing.
REVISED VERSION AS OF 8/15/95
APPENDIX B: Instructions on Financial Tracking
Instructions on CERCLIS/Waste LAN and GICS/IFMS Financial
Tracking
for the Guidance on Deferral of NPL Listing Determinations
While States Oversee Response Actions
PURPOSE
This appendix provides instructions on how to use information
management systems to track site progress and financial management
information for NPL caliber sites that have been deferred to
States under the "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions" (OSWER
Directive 9375.6-11).
BACKGROUND
The Superfund State deferral guidance provides direction to
Regions for implementing the State deferral program and includes
criteria for establishing State capabilities, selecting sites, and
entering into agreements with States to compel and implement PRP
response actions. The guidance requires minimal EPA oversight and
provides Regions and States flexibility to negotiate agreements
that reflect State- and site-specific circumstances. The Agency
nevertheless will be expected to be able to demonstrate the
deferral program's accomplishments and to ensure EPA and State accountability.
Consequently, Regions need to report certain
information into CERCLIS/WasteLAN. Regions may also wish to take
advantage of CERCLIS/WasteLAN to conduct their own tracking of
progress at sites.
Also, to ensure that information regarding awards to States
for site- or non-site-specific deferral activity, Regions need to
use appropriate sub-object class codes in awarding cooperative
agreements and track these obligations in CERCLIS or CERHelp, as appropriate.
IMPLEMENTATION
New CERCLIS lead, event, qualifier, and sub-event definitions
to enable tracking of key information regarding deferred sites
will be included in the FY95 Superfund Program Management Manual
and the CERCLIS data element dictionary.
In addition, a new sub-object class code (41.90) has been
established to track resources awarded to States under site-specific
deferral cooperative agreements. The attached Office of
the Comptroller Policy Announcement No. 94-07 describes this code.
New LEAD SD (C2117 and C1707): STATE DEFERRAL
Definition: LEAD SD is a PRP- or State-financed response
action at an NPL caliber or proposed NPL site overseen or
conducted by the State pursuant to a deferral agreement with the
Region, as described in OSWER Directive 9375.6-11. With limited
exceptions, Fund-financing for deferral response actions will not
be available.
The LEAD SD will be used in conjunction with the new STATE
DEFERRAL EVENT (C2101 = SD) and associated qualifiers and
subevents (see below) to track start and completion dates of
responses at deferred sites. Other response or enforcement
accomplishments and/or reports may be tracked using the LEAD SD
(C2117 or C1707) and current CERCLIS response event or enforcement
activity codes, as appropriate, at the Region's discretion.
New EVENT SL (C2101): STATE DEFERRAL
Definition: EVENT SL indicates that the Region has entered
into an agreement with a State to defer from listing on the NPL an
NPL caliber or proposed NPL site, while the State uses its own
authority to compel and oversee PRP response or implements a
response using its own resources. This event is located in the 00
operable unit.
The SL START DATE (C2140) is the signature date of the
document sent from the Regional Superfund program director to
the State program director that defers the site to the State
under the terms established in the deferral guidance. For
sites that were deferred under the deferral pilot program
(prior to the issuance of the guidance), the SD START DATE
will be the date that EPA Headquarters formally confirmed the
pilot status of these sites.
The SL COMPLETION DATE (C2141) is:
-
The signature date of the formal Regional document that
either confirms that the deferral has been completed
successfully or terminates the status of the deferral.
Qualifiers (see below) must be used to indicate whether the deferral has been successfully completed (C2103 = S)
or has been terminated (C2103 = T).
OR
-
The date 90 days after the date EPA receives State
certification that the deferral has been completed (see
SC SUBEVENT below), 11 the Region neither formally
confirms the deferral completion nor initiates a
deferral inquiry (see SC SUBEVENT below) within 90 days
of receiving the State certification. The qualifier
indicating that the deferral has been successfully
completed (C2103 = S) must be used (see below).
If, upon agreement with the State, the Region formally
confirms the State's certification after the 90 day period,
the SL COMPLETION DATE may be updated to reflect the date of
the formal confirmation. Figure 1 provides a flowchart for
determining the SL completion date.
New QUALIFIERS (C2103 = S or T) FOR EVENT = SL
Definition: QUALIFIER C2103 = S signifies that the Region
either has confirmed formally that the State deferral has been
completed successfully or that the Region has not responded within
90 days of receipt of the State's certification that it has
completed the deferral successfully. Sites at which a deferral
has been successfully completed are eligible for removal from CERCLIS, pursuant to Agency policy for removing sites from CERCLIS.
Definition: QUALIFIER C2103 = T signifies that the Region
has terminated the status of the deferral. This qualifier is used
when the Region terminates the deferral during the course of the
response or in conjunction with a deferral inquiry (see SUBEVENT
SE below) conducted at the completion of the response that results
in termination of the deferral.
New SUBEVENT SM (C3101): State Completion Certification
Definition: SUBEVENT SM is the date the Region receives the
State's submission of response action completion documentation
certifying that it has completed successfully its selected remedy
at the site and has achieved its intended cleanup levels. Within
90 days of receipt of the documentation, the Region must confirm
successful completion of the deferral formally (SM COMPLETION
DATE) or initiate an inquiry to confirm the certification (see
SUB EVENT SQ below). If an inquiry is not initiated within 90 days
of the SUBEVENT SM date and the Region has not confirmed the deferral completion formally, the EVENT 8L COMPLETION DATE will be
the date 90 days after the SUBEVENT
New SUBEVENT SQ (C3101) : State Deferral Inquiry
Definition: SUBEVENT SQ is the date that the Region
initiates a deferral inquiry to confirm the State's certification
that it has completed its selected remedy successfully. The
inquiry must be initiated within 90 days of EPA's receipt of the
State's certification that the remedy has been completed (SUBEVENT
SM) or the SL COMPLETION DATE will be the date 90 days after the
SUBEVENT SM date. Once the Region completes a deferral inquiry
(which may be after the 90 day period), the Region must issue a
document which either confirms successful completion of the
deferral or terminates the deferral status of the site. The SL
COMPLETION DATE is the signature date of this document, and the
appropriate qualifiers (C2103 = S or C2103 = T) must be used.
Financial Tracking in CERCLIS/CERHELP
Cooperative agreements may be awarded to States to assist
implementation of the deferral program on a site- or non-site-specific
basis. Site-specific cooperative agreements should be
tracked under the C2101 = SL event, and non-site-specific (Core
Program) cooperative agreements should be tracked in CERHELP under
C304 BA-TYPE = CG.
Figure 1: Flowchart for Determining SL Completion Date
APPENDIX C: Policy Announcement No 94-07
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF THE COMPTROLLER
POLICY ANNOUNCEMENT NO. 94-07
(Signed June 08, 1994)
MEMORANDUM
SUBJECT: |
New Sub-object Class Code for Deferral Program
Cooperative Agreements |
FROM: |
Kathryn S. Schmoll
Comptroller (3301) |
TO: |
Assistant Regional Administrators
Management Division Directors
Regional Comptrollers
Senior Budget Officers
Financial Management Officers |
PURPOSE
This Policy Announcement (P.A.) establishes a new sub-object
class code for deferral program cooperative agreements.
POLICY
The new sub-object class code to be used for the deferral
program cooperative agreements is described below:
41.90 Deferral Program Cooperative Agreements. Awards to
States, Territories, Commonwealths, or Indian Tribes
to conduct site-specific activities at National
Priority List (NPL) caliber sites which have been
deferred from NPL listing consideration while
recipients compel and oversee Potentially
Responsible Party (PRP) response actions. May not
be used to conduct or support Fund-financed remedial
action at a deferred site. Awards are subject to 40
CFR Part 35, Subpart O. [Assistance program code
"V" (CFDA number 66.802)]
EFFECTIVE DATE
This new sub-object class code is available for immediate
It will be included in the next revision of Resources use
Management Directives System 2590, Part IV, Object Class Codes.
FOR ADDITIONAL INFORMATION
Should you have any questions on this P.A., please contact
Charles Young of the Superfund Accounting Branch on 202-260-6890.
cc: |
David J. O'Connor |
|
David Osterman |
|
Elizabeth Craig |
|
FMD Branch Chiefs |
|