Lead Regulator Policy for Cleanup Activities at Federal Facilities on the National Priorities List

• Purpose
• Problem
• Policy
• Developing Lead Regulator Agreements
  • Criteria for State as Lead Regulator
  • EPA Reservation of Rights
• Summary
• Disclaimer
• Attachment 1. Lead Regulator Policy in Practice
• Notes

Signed 11/6/97

MEMORANDUM

SUBJECT:
Lead Regulator Policy for Cleanup Activities at Federal Facilities on the National Priorities List

FROM:
Timothy Fields, Jr. /s/
Acting Assistant Administrator
Office of Solid Waste and Emergency Response

Steven A. Herman /s/
Assistant Administrator
Office of Enforcement and Compliance Assurance

TO:
Regional Administrators

I. Purpose

In October 1995, Administrator Browner announced twenty new "common sense" administrative reforms to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including one to: "establish a lead regulator at each site undergoing cleanup activities under competing Federal and state authorities to eliminate overlap and duplication." The purpose of this policy is to clarify roles and minimize overlapping Federal and state regulatory oversight of cleanups at federal facilities on the National Priorities List (NPL) to encourage more efficient use of Federal and state oversight resources. Examples of the lead regulator policy at work are provided in Attachment I.

This policy furthers the Resource Conservation and Recovery Act (RCRA)/CERCLA coordination concepts presented in a September 24, 1996 OSWER guidance document entitled "Coordination Between RCRA Corrective Action and Closure and CERCLA Site Activities," and focuses on the special, unique, coordination issues associated with federal facilities listed on the NPL. The RCRA/CERCLA coordination memorandum should continue to be used as the controlling guidance for private sites and for non-NPL federal facilities.

II. Problem

EPA expects that for the foreseeable future, the resources for federal and state oversight of cleanup at federal facilities will remain relatively constant. The total workload for overseeing the work at contaminated federal facility sites, however, is expected to increase. Therefore, it is becoming increasingly important to ensure that EPA and states maximize the impact of their respective limited resources. Because the states will increasingly play an important part in the cleanup program, it is essential that EPA and the states minimize their duplicative oversight efforts.

Beginning in 1995, EPA formed an interagency workgroup to address issues that arise in the selection of a lead regulator at federal facilities on the NPL. The workgroup consisted of representatives from: EPA's Office of Solid Waste, EPA's Office of General Counsel, EPA's Federal Facilities Enforcement Office and Federal Facilities Restoration and Reuse Office, EPA's Office of Emergency and Remedial Response, several EPA Regional Offices, the Department of Justice, the Department of Defense, the Department of Energy, the Department of Agriculture, the Department of Interior, and several state representatives from New Jersey, California, Texas, Illinois, Washington, and Colorado. We would like to acknowledge that the workgroup discussed a wide range of issues and provided substantial input for this policy, however, this policy does not cover all of the issues discussed by the workgroup.

III. Policy

In most situations, RCRA and CERCLA site managers can defer cleanup activities for all or part of a site from one program to another with expectation that no further cleanup will be required under the deferring program.¹ EPA believes this determination is also applicable at federal facilities listed on the NPL; however, the Agency recognizes that CERCLA Section 120 imposes special requirements on federal facilities and that these requirements must be accommodated in any coordination approach. This policy focuses on the types of coordination approaches that might be appropriate at federal facilities listed on the NPL in the context of the special requirements imposed by CERCLA Section 120.

EPA endorses and encourages the identification of a single lead regulator to oversee the cleanup of federal facility sites on the NPL. Through identification of a lead regulator, overseeing agencies should minimize, within the constraints of existing laws, multiple regulator review and comment, thereby reducing the number of redundant or competing oversight processes, such as reviewing response actions, that occur during cleanup. For purposes of this policy, a lead regulator is defined as the primary regulatory agency (i.e., EPA or the state) that oversees cleanup work at an operable unit, an area of contamination, or an NPL site under the applicable regulatory framework. For instance, this approach would enable states to oversee sites on a federal facility using a state program authorized under RCRA or other state cleanup authority provided that at a minimum the CERCLA process is integrated with the applicable RCRA or other state law process to satisfy the requirements of both statutes and the results are protective of human health and the environment (i.e., a remedy that can be approved by EPA for eventual deletion from the NPL).

Successful implementation of the lead regulator policy presumes that all interested parties, particularly regulatory agencies, have built sufficient mutual trust, have sufficient experience in providing oversight of remedial activities, and have come to an agreement on the application of this concept. Where this is true, fully concurrent Federal and state oversight is not necessary to ensure that cleanups are timely and protective.

To the extent permitted by law, possible streamlined oversight arrangements for cleanup may include, but need not be limited to: state-lead for appropriate portions of the site using the state program authorized under RCRA, or the appropriate state hazardous waste cleanup law as oversight authority, or EPA-lead under CERCLA. At sites where the lead regulator policy is applied, if the state acts as the lead regulator, EPA's involvement is expected to be minimal. Except as noted below, EPA will rely on the state to do all regulator oversight work necessary to develop a recommended remedial alternative with which EPA can concur under CERCLA with minimal review. Where EPA is lead, state involvement would be expected to be minimal. For either scenario, the timing and extent of involvement is expected to be tailored to the site-specific situation.

Under any arrangement, EPA retains its responsibility for NPL site listing, deletion decisions, and its responsibilities under CERCLA 120(g) and (h). Additionally, in all cases, pursuant to CERCLA 120(e)(1) and (2), EPA remains responsible for entering into an Interagency Agreement (IAG) with the appropriate federal lead cleanup agency² and that agency must meet its lead agency responsibilities under 120. CERCLA 120(e)(3) and (4) establish the requirements for an IAG and concurrence on proposed remedies. Any lead regulator arrangement should be consistent with any IAGs in place and actions taken must be consistent with the CERCLA process for eventual site deletion from the NPL.

IV. Developing Lead Regulator Agreements

This section outlines the criteria and considerations that should be applied when developing lead regulator agreements and identifying site-specific lead agency roles. If EPA and the state are satisfied with their current oversight arrangement, they may continue it. Nothing in this policy is meant to direct EPA and states to change IAGs currently in place. A federal agency may make a request to a regulatory agency (either Federal or state) to consider a streamlined oversight arrangement.

A. Criteria For State As Lead Regulator

EPA, the state, and the federal agency should discuss how the lead regulator policy will be applied at particular NPL federal facilities. EPA and the state, in consultation with the federal agency, should enter into a "lead regulator agreement." This agreement and any funding allocation between EPA and the state, should be documented in a manner that the Region and state find most appropriate (i.e., Memorandum of Understanding (MOU), partnership agreement, consensus statement, interagency agreement, letter between agencies, etc.,). The agreement can cover an arrangement that suits the Region's and state's particular needs, such as: statewide; facility by facility; or even operable unit by operable unit. It is important to keep in mind that some contamination, such as certain radioactive contaminants, can not be addressed under RCRA authorities. Likewise, certain contaminants, such as petroleum, cannot be addressed under CERCLA authorities.

1. State Program Capabilities

States are generally in a better position to assume a lead regulator role if the state has RCRA program authorization including corrective action or otherwise has authorities under a state law to oversee cleanup activities. For a state to be eligible to assume the lead regulator role, the state hazardous waste management or remedial program should meet the following general criteria regarding statutory and administrative authority and program capability:

• Statutory, regulatory, or administrative provisions to ensure that remedies are protective of human health and the environment;

• Effective enforcement authority to ensure statutory, regulatory, or administrative provisions are followed;

• Sufficient capabilities, resources, and expertise to oversee a protective cleanup conducted in coordination with EPA, other interested agencies, and the public, and to support community involvement activities including Restoration Advisory Boards (RABs) and Site-Specific Advisory Boards (SSABs);

• Demonstrated willingness to enforce requirements to protect human health and the environment; and

• Capability to maintain adequate oversight 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, including enforcing timelines; and communicating with EPA program managers.

It is also necessary to take into consideration the performance history of the state relative to its state cleanup authorities.

2. Community Involvement

Additionally, while the Federal lead cleanup agency has responsibility for providing community involvement under CERCLA, states, where they are the designated lead regulator, should work to promote input from communities in a manner that fosters community participation in decisions regarding response actions at sites. As recommended in the Final Report of the Federal Facilities Environmental Restoration Dialogue Committee (FFERDC) (April 1996), community participation will be facilitated by the establishment of RABs/SSABs by the federal agencies in coordination with the state. The state should take appropriate steps to ensure that the affected community and other affected parties (e.g., communities downstream from the site, Natural Resource Trustees, etc.), as appropriate, are kept informed of any differences in timetables or criteria that may result from integrating the federal CERCLA process with a state program authorized under RCRA or other state cleanup law process and other information relating to the cleanup. Where EPA, the state, and the lead cleanup agency are entering into a lead regulator agreement that is not currently captured in an existing IAG, adequate public notice must be provided concerning the lead regulator agreement.

Similarly, under any lead regulator agreement, the federal agency is responsible for funding technical assistance grant (TAG)-like grants and services. EPA may fund TAGs at NPL sites. EPA may delegate responsibility for overseeing and issuing TAGs to states under the CERCLA framework (40 CFR 35.4015(b)). The state should also document all of its interactions with the community and inform EPA and the federal lead cleanup agency of any possible opposition to the cleanup.

3. Consultation With EPA

In order for EPA to implement its CERCLA responsibilities, EPA should ensure that lead regulator agreements provide for a meaningful consultation role for EPA and the federal lead cleanup agency to ensure that cleanups are occurring in a timely fashion and will be consistent with the final remedy at the facility. EPA should also ensure that lead regulator agreements provide for a joint scoping process that results in agreement with EPA and the lead cleanup agency on end-point remediation objectives and the data required to answer the questions necessary to meet cleanup objectives. Over time and based on cleanup program maturity, state lead regulator oversight responsibilities can be adjusted to reflect the state's capability and resources. Conditions and expectations of the consultation role should be documented in the state/EPA lead regulator agreement.

B. EPA Reservation of Rights

EPA is committed to developing and implementing lead regulator agreements. Where a state is the lead regulator, EPA must still exercise its CERCLA obligations under section 120, including concurrence on remedies proposed by the federal lead cleanup agency and the state. Therefore, EPA must reserve its right to ensure that the cleanup is consistent with the requirements for a final remedy under CERCLA and, if appropriate, to delete the site from the NPL. Provided that effective consultation has been occurring during the cleanup process, EPA does not anticipate the need for requiring additional action when it receives the proposed Record of Decision for concurrence.

As noted above, where a state is the lead regulator for a cleanup, EPA will normally take an active role in the cleanup if: 1) proposed remedies are not protective; 2) EPA needs to perform statutory or regulatory obligations (e.g., NPL deletion procedures or remedy concurrence); 3) state oversight is not leading to a timely response action; or 4) the state or the federal lead cleanup agency that manages the facility requests EPA involvement or action.

Where a state is the lead regulator, as with any cleanup, EPA will continue to reserve any statutory authorities it may have available to take enforcement actions with respect to particular sites or under certain circumstances. EPA also recognizes that states may also reserve their enforcement and other authorities with respect to cleanup or other activities at particular sites.

V. Summary

We encourage you to continue to expand your efforts in implementing the lead regulator policy at the Federal facilities in your Regions. In addition to this policy, we recommend that you refer to the following guidance documents when choosing a lead regulator: "Coordination Between RCRA Corrective Action and Closure and CERCLA Site Activities," Steve A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance, and Elliott P. Laws, Assistant Administrator, Office of Solid Waste and Emergency Response, September 24, 1996, and "Guidance on Improving Communication to Achieve Collaborative Decision-Making at Department of Energy Sites," Steve A. Herman, Assistant Administrator, Office of Enforcement and Compliance Assurance, Tim Fields, Acting Assistant Administrator, Office of Solid Waste and Emergency Response, and Alvin L. Alm, Assistant Secretary for Environmental Management, U.S. Department of Energy, June 16, 1997. If you have questions on the issues discussed in this memorandum regarding remedy selection or response actions, please contact the Federal Facilities Restoration and Reuse Office, at (202) 260-9924, or if you have specific questions regarding IAGs or enforcement issues, please contact the Federal Facilities Enforcement Office at (202) 564-2510.

VI. Disclaimer

This policy and internal procedures adopted for implementation are intended solely as policy for employees of the US EPA. Such policy and procedures do not constitute rule making by the Agency and do not create legal obligations. The extent to which EPA applies this policy will depend on the facts of each case.

Attachment

Attachment 1. Lead Regulator Policy in Practice

In advance of the Lead Regulator Policy, a number of states and EPA Regions have successfully negotiated and implemented site-specific lead regulator agreements. For example, a lead regulator agreement was recently reached at the Rocky Flats Environmental Technology Site (RFETS), a Department of Energy site in Colorado that is listed on the NPL.

In January 1991, DOE entered into an IAG and Compliance Order on Consent with EPA and Colorado for required CERCLA remedial action and RCRA corrective action at RFETS. The IAG incorporated a regulatory approach that was based on the objective of CERCLA and RCRA (including state hazardous waste law) integration. A lead regulatory agency was assigned (with the other agency being the support regulatory agency) for most of the sites' 16 designated operable units, but 3 operable units were assigned joint-EPA/state lead. Despite the lead regulator assignment, in the 1991 IAG, each regulatory agency retained approval authority for its requirements in each operable unit. Therefore, all decision documents were subject to comment and approval by both EPA and the state. The support regulatory agency's comments were submitted to the lead agency, but provided to RFETS unedited for RFETS's response. Thus, there was a duplication of effort by the state and EPA and the requirement for RFETS to deal with two regulators on nearly every deliverable that was unnecessarily time-consuming and confusing. RFETS was at times uncertain whether EPA's and the state's comments or concerns were consistent, and at times the comments appeared to conflict, compounding coordination problems. Although there were a number of other reasons resulting in the parties' decision to renegotiate the 1991 IAG, it was agreed that an approach resulting in a single lead regulator in each operable unit with full regulatory approval authority to the maximum extent possible presented opportunities to streamline work.

The renegotiated agreement, effective July 1996, is known as the Rocky Flats Cleanup Agreement (RFCA). The RFCA regulatory approach coordinates RCRA corrective action and CERCLA remediation requirements. Under RFCA, the RFETS NPL site is divided into two areas: the Industrial Area, for which the state is the lead regulator; and the Buffer Zone, for which EPA is the lead regulator. Cleanup of the Industrial Area is regulated under applicable state law and where state law is not applicable (e.g., radioactive materials) under CERCLA requirements. The Buffer Zone is being cleanup up under CERCLA. Under RFCA, Colorado carries out EPA's CERCLA authority in the Industrial Area, except where such authority is statutorily reserved to EPA. Except for certain site-wide decisions, the lead regulator has the sole oversight and approval authority in its area, and it is responsible to keep the other regulatory agency informed and to obtain that agency's concurrence if and when required under the RFCA. Therefore, to the maximum extent practicable, DOE interfaces with only one regulator and follows one regulatory regime in each of the two areas. The RFCA approach so far allows for shorter turnaround on document approvals and has markedly improved RFETS ability to accelerate risk reducing removal actions.

Other examples of successful implementation of the lead regulator concept include the DOE site Hanford, in the State of Washington, and the Navy facility Port Hadlock, also in Washington. In the summer of 1995, management from EPA, DOE and the State of Washington Department of Ecology (Ecology) met to examine ways of fundamentally improving the cleanup effort at Hanford so that it would be more efficient and cost effective. To help accomplish those goals, the three parties agreed to adopt a single regulator concept where only one regulatory agency would generally be involved in the day to day oversight and decision making on individual cleanup activities. In the past, the regulatory agency acting in the support rather than lead role had often invested significant resources to participate in oversight of DOE and its contractors. The IAG was amended to require EPA and the state to designate a single lead regulatory agency (LRA) for each operable unit and RCRA Treatment, Storage, and Disposal (TSD) unit at the site. The LRA is empowered to make all regulatory decisions at those units within the scope of their authority. The state has an authorized RCRA program and is designated as the lead for all the RCRA units, as well as a number of the CERCLA operable units. EPA retains responsibility for selecting remedial actions at state lead CERCLA operable units as required by section 120 of CERCLA. However, under the lead regulator agreement, EPA relies on the state to do all the regulatory oversight work necessary to develop a recommended remedial alternative that EPA can approve.

EPA Region 10 and Ecology executed an agreement in 1994 entitled "Superfund Management in Washington." Under that agreement, Port Hadlock was designated a state lead federal facility site, and Ecology has primary responsibility for the review and approval of work plans and other deliverables and for oversight of remedial action. After completion of a Remedial Investigation/Feasibility Study (RI/FS) by the Navy with state oversight and issuance of the Record of Decision (ROD), an IAG was signed by EPA, the Navy and the State of Washington. The IAG provides that the state shall be responsible for approving workplans and overseeing implementation of the IAG without EPA participation in accordance with the EPA/state agreement. Any disputes are resolved by the state unless the Navy determines that the dispute has national policy implications, in which case the dispute can be elevated to the EPA Administrator for resolution.

At the U.S. DOE site in Fernald, Ohio, both EPA and the state are working together to utilize a team approach for conducting oversight of the DOE cleanup. Both the state and EPA review all documents and submit comments to DOE. The state takes the lead on most field projects, since the site is close to the state office. Both the state and EPA attend technical and public meetings. This unified regulator approach increases stakeholder comfort toward oversight of the facility. DOE and EPA have agreed to this arrangement for the Fernald site in an Amended Consent Agreement under CERCLA Sections 120 and 106(a).

The relationship between EPA and the Ohio EPA in handling oversight originated as EPA's authority over DOE's management of mixed waste and other RCRA waste activities developed in the late 1970's. Both regulatory agencies worked together in an integrated fashion to handle field oversight and provide technical review of documents, while implementing the regulations. This working relationship between EPA and Ohio EPA carried over into the 1990 CERCLA agreement as both regulatory agencies work together to assure DOE implements remedies according to CERCLA and in the best interest of the community. The regulators frequently discuss who will review certain aspects of technical documents, or conduct field oversight. The team regulator approach has worked successfully for years and will continue to be implemented in the future at the Fernald site. Therefore, in areas where the state and EPA have established a good working relationship and communicate regularly, utilizing a team "synergistic" approach may be the appropriate approach for conducting oversight.

Notes

1. See, "Coordination between RCRA Corrective Action and Closure and CERCLA Site Activities," OSWER Directive 9200.0-25, September 24, 1996.
2. For the purposes of this policy, "federal lead cleanup agency" is defined as the federal agency that owns or operates the federal facility.