ASTSWMO State Superfund Managers Symposium Providence, RI June 19 th, Jennifer Wilbur Office of Superfund Remediation and Technology Innovation

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1 ASTSWMO State Superfund Managers Symposium Providence, RI June 19 th, 2012 Jennifer Wilbur Office of Superfund Remediation and Technology Innovation

2 State Assurances: An Overview Before EPA can undertake a fund-financed remedial action, CERCLA requires EPA to enter to into a Superfund State Contract (SSCs) or Cooperative Agreement (CA) The President shall not provide any remedial action unless the state in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances CERCLA 104(c)(3) The NCP provides the regulatory backdrop (40 CFR and 40 CFR [Subpart O]) The SSC or CA will, among other things, document required assurances that must be made by a state. 2

Record of Decision Remedial Design Remedial Action (includes LTRA, if needed)

3 Chronology of a Superfund Cleanup for fund-lead Sites Preliminary Assessment/Site Inspection NPL Listing Remedial Investigation/ Feasibility Study Proposed Plan Record of Decision Remedial Design Remedial Action (includes LTRA, if needed) Operation and Maintenance Typical SSC Negotiation Period Cost Share State takes over 3

4 SSCs vs. Cooperative Agreement SSC is a contract two party, legally binding agreements that are enforceable in a federal district court Used to document assurances and to record the costs a state owes for the remedial action (cost share) Does not obligate funds to a state CA is a vehicle by which the federal government transfers something of value (e.g., money) to an eligible entity (e.g., state) CERCLA allows for a cooperative agreement to be used in lieu of, or in addition to, an SSC 4

5 Who is conducting the work and how is it financed? When to Use an SSC or CA SSC (Required or Optional) Cooperative Agreement (Required or Optional) EPA lead (fund-financed) Required Support CA Optional (can be used to document credits and in-kind services) EPA lead (Special Account financed) Not required until RA becomes fund-financed (but recommend having in place before RA work begins) Support CA Optional (can be used to document credits and in-kind services) State lead (fund-financed) Optional (if all assurances in CA) Required (can include all assurances within CA) State lead (Special Account financed) State lead (state financed) No cost share or assurances required, but recommend an SSC if part of the RA may be fundfinanced If state conducts remedial action work with its own funds and intends to submit for credit, a subsequent SSC or CA is required to approve credit CA required but no cost or assurances required (see SSC column) If state conducts remedial action work with its own funds and intends to submit for credit, a subsequent SSC or CA is required to approve credit PRP Lead (EPA oversight) No SSC No CA 5

6 SSCs: The Assurances State assurances required: Assure it will assume all future operation & maintenance (includes institutional controls) Generally, begins when remedy is operational & functional or one year after construction completion, whichever is sooner Assure twenty-year waste capacity and availability of hazardous waste treatment or disposal facilities that comply with Subtitle C of RCRA Assure, if required, that off-site storage, destruction, treatment or disposal is in compliance with Subtitle C of RCRA Pay or assure payment of cost share : 10% of the costs of the remedial action; or 50% or more of the costs expended in response to a release at a facility that was operated by the state or political subdivision at the time of the disposal Assure, if required, that state will accept transfer of real property acquired during remedial action 6

7 SSCs: Cost Share Over $500 million has been collected from states in the form of cash payment EPA annually uses $20-$30 million from state cost share payments to support fund-financed remedial actions across the country Your partnership (and payment) is critical to the cleanup of Superfund sites Cost share can be paid in three ways: Cash Credit In-kind or services 7

8 Cash, Credit, and In-kind or Services Cash = $ either lump sum or over the life of the remedial action (most common way to meet obligation) Credit = site-specific expenditures EPA determines to be reasonable, documented, direct, out-of-pocket expenditures of non-federal funds for remedial action that are consistent with a permanent remedy at the site Services or In-kind = equipment or services that directly benefit the remedy 8

9 Credit Credit vs. In-kind Direct costs that are identified, specifically, with a final cost objective you have a bill, time charge, etc. Examples: cost of materials acquired (purchased); travel expenses incurred to carry out the activity; compensation of employees time specifically related to the remedial action. In-kind or Services Value of the services or equipment needs to be estimated because there is no bill Includes third-party donations Examples: laboratory services, personnel, equipment usage 9

10 The Gravel Example Scenario: State donates a pile of gravel to the remedial action that they received from a local government. The gravel came from a third party and the value must be estimated = in-kind/service If the state had purchased the gravel using non- CERCLA funds and it had a bill, the cost of the gravel would be considered a credit (provided all the other credit provisions were met) 10

11 Cash What if we paid too much? Overpayment or overmatch using cash gives the state the option to ask for the money to be returned; or State may ask for the overmatch to be applied toward cost share at another site Credit Excess credit earned at one site may be used to meet cost share at another site Excess credit will not be reimbursed In-kind Overage is not transferable; no reimbursement 11

12 SSCs: Potential for Flexibility SSC requirements in CERCLA, e.g., 10% cost share figure, are statutory requirements and we do not have the discretion to change them e.g., it must be 10% of the fund-financed remedial action, not 5 or 15% Subpart O requirements, e.g., timing for submission of payments, are regulatory we may, for appropriate reasons, deviate from regulatory requirements Class deviation recently granted when ARRA was implemented seeking a one year extension and then a permanent regulatory change 12

13 Newly formed HQ Team SSCs: Going Forward Working with regional liaisons to improve the management of SSCs and the use of funds collected Working through issues, both policy and financial, and looking for flexibilities when appropriate Streamlining deviation request process and exploring potential changes to Subpart O Taking a new look at the SSC model and the development of additional tools Coordination with Office of Chief Financial Office the office that collects and accounts for the $ Will continue to work with ASTSWMO appreciate feedback to date 13

1.0 INTRODUCTION... 4

ASTSWMO Remedial Action Focus Group April 2016 Contents EXECUTIVE SUMMARY. 4 1.0 INTRODUCTION... 4 1.1 BACKGROUND... 5 1.2 OVERVIEW OF THE CLEANUP PROCESS... 6 1.2.1 Removals... 6 1.3 OVERVIEW OF THE SUPERFUND