Re: NAVY-EPA MODEL LANGUAGE

[Lenny Siegel <lsiegel@igc.org>]

Below is the full text of the model language for Interagency 
Agreements that I described/summarized in a recent posting.

EPA's cover letter, endorsing the model funding language, notes that 
the language is for Interagency Agreements (IAGs). IAGs (also 
known as Federal Facility Agreements) are the kind of cleanup 
agreements required by CERCLA Sec. 120 for federal facilities on 
the National Priorities List. Nonetheless, it has been pointed out to 
me that the Navy, in disseminating this language to the field, has told 
its activities to view the language as model for ALL cleanup 
agreements, NPL and nonNPL."

Lenny Siegel

MEMORANDUM March 14, 1997

SUBJECT: Model Language For Use in Future Navy Cleanup 
Agreements

.from: Craig Hooks, Acting Director
 Federal Facilities Enforcement Office (FFEO)

.TO: Regional Counsels, Regions I - X
 Regional Division Directors, Regions I - X

 Attached please find the final model language for the "Deadlines 
and Contents of Site Management Plan", "Budget Development and 
Amendment of Site Management Plan", and "Funding" provisions 
for Interagency Agreements (IAGs) under negotiation with the Navy. 
This language has been negotiated at a national level among FFEO, 
Regions I, III and IV and the Department of Navy as a result of the 
recommendations in the Federal Facility Environmental Restoration 
Dialogue Committee(FFERDC) "Keystone" report released in April 
1996.

 This language should be used in all future IAGs negotiated with 
the Navy and, as appropriate, you may wish to propose it to other 
military services for use in their cleanup agreements with EPA. EPA 
and the Navy consider this language to be model; however, both 
parties anticipate States may suggest modifications. Although EPA 
and the Navy discourage wholesale revisions, some clarifying 
changes may be acceptable. Therefore, when negotiating with your 
state partners, if the state advocates major revisions, please have your 
regional attorney and/or programmatic expert call Sally Dalzell 
at(202) 564- 2583. Together, Sally Dalzell and the regional 
personnel will determine whether the proposed changes should be 
vetted through the original "ABL Workgroup" comprised of 
participants from FFEO, Regions I, III and IV. Otherwise, no 
substantive changes should be made to this language without 
consultation with FFEO. Please contact Sally Dalzell at (202)564-
2583 if you have any questions regarding the implementation of the 
model language.

Attachment

cc: Steve Herman, OECA
 Timothy Fields, OSWER
 Jim Woolford, OSWER
 Scott Fulton, OGC
 Federal Facility Leadership Council

FINAL MODEL FUNDING LANGUAGE FOR NAVY FFA/IAGS
 March 12, 1997

 J. "Deadline" or "Milestone" shall mean a time limitation 
specifically established or provided for under the terms of the 
Agreement or the Site Management Plan for performance of work 
and submittal of Primary Documents and shall not include Target 
Dates. Deadlines shall include "Near Term Milestones," "Out Year 
Milestones" and "Project End Dates," as such terms are defined 
below.

THEN ADD THE FOLLOWING NEW DEFINITIONS INTO THE 
DEFINITION SECTION:

[ .] "Near Term Milestones" shall mean the dates established by the 
Parties in the Site Management Plan, in consultation with public 
stakeholders, for the submittal of Primary Documents and 
performance of work within the current fiscal year (FY), the next 
fiscal year or "budget year" (FY+1) and the year for which the 
budget is being developed or "planning year" (FY+2). The Parties 
recognize that milestones in the current fiscal year are enforceable.

[ .] "Out Year Milestones" shall mean the dates established by the 
Parties in the Site Management Plan, in consultation with public 
stakeholders, for the submittal of Primary Documents within those 
years occurring after the "planning year" until the completion of the 
cleanup or phase of the cleanup (FY+3 through Project End Date, as 
defined below).

[ .] "Project End Dates" shall mean the dates established by the 
Parties in the Site Management Plan, in consultation with public 
stakeholders, for the completion of major portions of the cleanup or 
completion of the cleanup of the entire facility.

XI. DEADLINES AND CONTENTS OF SITE MANAGEMENT 
PLAN

11.1 In order to ensure that the Work to be performed under this 
Agreement is accomplished in a timely manner, the Parties have 
agreed to establish Deadlines consisting of (i) Near Term Milestones 
for the current fiscal year (FY), the budget year (FY+1) and the 
planning year (FY+2); (ii) Out Year Milestones for the years 
occurring after the planning year until the completion of the cleanup 
or phase of the cleanup (FY+3 and beyond); and (iii) Project End 
Dates for the completion of major portions of the cleanup or for the 
cleanup as a whole. Near Term Milestones for performance of work 
and submittal of Primary Documents within the current fiscal year 
(FY) are enforceable and shall be subject to stipulated penalties. 
Near term milestones, Out Year Milestones and Project End Dates 
will not change without the mutual consent of all Parties to the 
Agreement. Out Year Milestones and Project End Dates shall not be 
enforceable until they become Near Term Milestones for the current 
FY in accordance with the terms of Section 12.4 below; provided, 
however, if an activity is fully funded in the current FY, milestones 
associated with performance of work and submittal of Primary 
Documents associated with such activity (even if they extend beyond 
the current FY) shall be enforceable. For the purposes of this 
Agreement, a fiscal year is the yearly time frame used by the United 
States Government that commences on October 1 and ends 
September 30th of the following calendar year.

11.2 The Site Management Plan (SMP), attached to this Agreement 
as Appendix [ ], establishes Deadlines for a three-year period for the 
submittal of Primary Documents pursuant to this Agreement. The 
SMP includes proposed actions for both CERCLA responses and 
actions which would otherwise be handled pursuant to RCRA 
corrective actions per Section VII - STATUTORY 
COMPLIANCE/RCRA-CERCLA INTEGRATION and outlines all 
response activities and associated documentation to be undertaken at 
the Facility. The SMP incorporates all Deadlines and Target Dates 
contained in approved Work Plans. All schedules approved in future 
Work Plans immediately become incorporated in the Site 
Management Plan.

11.3 Deadlines in the SMP reflect the priorities agreed to by the 
Parties, in consultation with stakeholders, through a process of 
"Risk Plus Other Factors" Priority Setting. Site activities have been 
prioritized by weighing and balancing a variety of factors including, 
but not limited to: (i) the DoD relative risk rankings for the Site; (ii) 
potential or future use of the facility; (iii) ecological impacts; (iv) 
intrinsic and future value of affected resources; (v) cost effectiveness 
of the proposed activities; (vi) regulatory requirements; (vii) 
environmental justice considerations; and (viii) actual and anticipated 
funding levels. While deadlines should not be driven by budget 
targets, such targets should be considered. Furthermore, in setting 
and modifying deadlines, the Parties agree to make good faith efforts 
to accommodate federal fiscal constraints, which include budget 
targets established by the Navy.

11.4 The SMP includes (and shall be amended annually to include):

 A. Actions necessary to mitigate any immediate threat 
to human health or the environment;

B. A listing of all currently identified SSAs, Operable Units 
(including Accelerated Operable Units (AOUs)), Interim Remedial 
Actions, Supplemental Response Actions, and Critical and Non-Time 
Critical Removal Actions covered or identified pursuant to this 
Agreement;

 C. Activities and schedules for response actions 
planned for the three-fiscal-year period covered by the SMP. 
Activities included, at a minimum, are:

 - Near Term Milestones for the performance of work and 
submittal of all Primary Documents in the three-year SMP period;

 -Out Year Milestones for all Primary Documents covered in 
the SMP for the years FY+3 through the Project End Date;

 -Target dates for the submittal of all Secondary Documents;

 -Schedule for initiation of Remedial Designs, Interim 
Response Actions, Non-Time Critical Removal Actions, AOUs and 
any initiation of other planned response action(s) covered by this 
Agreement; and

 -Project End Dates for the completion of any planned 
response action(s) covered by this Agreement;

 D. A provision that, for each OU or AOU identified 
by the Parties within the three-year period covered by that SMP, the 
Navy shall submit a draft Proposed Plan within thirty (30) days of 
submission of a final FS or FFS Report;

E. If the development of a Primary Document is fully funded in the 
first year of the three-year period covered by the SMP, enforceable 
Deadlines for submittal of that draft Primary Document may extend 
beyond the current fiscal year as reflected in the SMP.

11.5 The SMP shall be amended on a yearly basis as provided in 
Section XII - BUDGET DEVELOPMENT AND AMENDMENT OF 
SITE MANAGEMENT PLAN. All subsequent Amendments to the 
SMP shall meet all of the requirements set forth in this Section.

11.6 The enforceable Deadlines established pursuant to this Section 
and Section XII - BUDGET DEVELOPMENT AND AMENDMENT 
OF SITE MANAGEMENT PLAN - shall be published by EPA and 
the State and shall be incorporated into the SMP attached to this 
Agreement.

11.7 The Deadlines established in accordance with this Section and 
Section XII - BUDGET DEVELOPMENT AND AMENDMENT OF 
SITE MANAGEMENT PLAN - may be extended during the SMP 
review process by following Section XII, 12.4 - 12.7. All other 
extensions shall be governed pursuant to Section XIII - 
EXTENSIONS - of this Agreement. The Parties recognize that 
possible bases for extension of the Deadlines, as determined by 
mutual consent of the Parties, include: (i) the identification of 
significant new site conditions at this installation(ii) repriortization of 
activities under this FFA caused by changing priorities or new site 
conditions elsewhere in the Navy and (iii) repriortization of activities 
under this FFA caused by budget adjustments (e.g., recissions, 
inflation adjustments, and reduced congressional appropriations).

XII. BUDGET DEVELOPMENT AND AMENDMENT OF SITE 
MANAGEMENT PLAN

12.1 The Department of the Navy, as a federal agency, is subject to 
fiscal co
ntrols, hereinafter referred to as the Future Year Defense Plan 
(FYDP). The Navy describes the first year of the FYDP as the year 
for which the next budget will be developed. The process for 
reviewing and adjusting the FYDP to (i) meet program requirements 
and, (ii) conform to OMB fiscal plans, is called the "POM" process. 
The Parties recognize that the planning, programming and budgeting 
is a multi-year process. The Parties also agree that all Parties should 
be involved in the full cycle of planning, programming, and 
budgeting activities.

Facility-Specific Planning, Programming and Budgeting

12.2 In order to ensure effective involvement by the Parties in the 
planning, programming, and budgeting process, the Navy agrees to 
meet at the Project Manager level, with the other parties, for the 
purpose of reviewing the FYDP controls, developing a list of 
requirements/work to be performed at the Site for inclusion in the 
DoN POM process, and participating in development of the 
LANTDIV submission to the proposed President's budget based on 
POM decisions for the year currently under consideration. When 
developing the proposed President's budget, the Navy agrees to 
notify the other Parties, at the Project Manager level, that budget 
controls have been received within two working days of receiving 
those controls. Unless the Parties agree to a different time frame, 
within 5 days of such notification, the Navy also agrees to consult 
with the other Parties, at the Project Manager level, on the proposed 
President's budget. This consultation must occur prior to 
LANTDIV's initial budget submission to Naval Facilities 
Engineering Command (NAVFAC).

In the event that the Project Managers cannot agree on funding levels 
required to perform all work outlined in the SMP, the Parties agree to 
make reasonable efforts to informally resolve these disputes, either at 
the immediate or secondary supervisors level, which would include 
discussions with NAVFAC. If resolution cannot be achieved 
informally within a reasonable period of time, LANTDIV shall 
resolve the disagreement, if possible with the concurrence of all 
Parties and notify each Party. If all Parties do not concur in the 
resolution, LANTDIV, through NAVFAC, agrees to elevate the 
budget request to the Office of the Chief of Naval Operations 
(OCNO) Navy Headquarters (after incorporating as much input from 
the Parties as possible) and inform OCNO of the possibility of future 
enforcement action should the money requested not be sufficient to 
perform the work in dispute . In addition, if LANTDIV's budget 
submission to NAVFAC does not include sufficient funds to 
complete all work in the existing SMP, after any agreed-upon 
modifications, the Navy's budget submission shall also include 
supplemental reports that fully disclose the work required by the 
SMP, but not included in the budget request. These supplemental 
reports shall accompany the cleanup budget that the Navy submits 
from LANTDIV through successive levels of the Navy to OCNO 
and to the DoD Comptroller.

LANTDIV-Budget

12.3 It is understood by all Parties that LANTDIV will coordinate 
the development of their budget with representatives of the EPA 
regional offices and the States located within the geographical area 
administered by LANTDIV. The Navy shall forward to EPA and the 
State documentation of the budget requests (and any supplemental 
reports as outlined in Section 12.1 above) for the site, as submitted 
by LANTDIV TO NAVFAC, and by NAVFAC to OCNO, within 14 
days after the submittal of such documentation to OCNO.

Amended Site Management Plan

12.4 No later than June 15 of each year after the development of the 
SMP, the Navy shall submit a draft Amended SMP to EPA and the 
State which will propose Deadlines to take effect in the next FY. 
Unless the Parties agree to modify the Deadlines as provided below, 
the draft Amended SMP should carry forward all Near Term 
Milestones, Out Year Milestones and Project End Dates included in 
the existing SMP. Therefore, in most cases, Near Term Milestones 
in the existing SMP for FY+1 and FY+2 shall be proposed as the 
Near Term Milestones for FY and FY+1 in the draft Amended SMP. 
In addition, the Navy shall examine the newly proposed FY and 
FY+1 milestones, funding circumstances (including OMB 
targets/guidance), and "risk plus other factors" outlined in Section 
11.3 to evaluate whether the previously agreed upon Project End 
Dates and Out Year Milestones for FY+3 (i.e., what is FY+3 under 
the existing SMP and will become FY+2 under the Amended SMP) 
should become Near Term Milestones.

Any proposed changes to Milestones must be explained in a cover 
letter to the draft Amended SMP. Moreover, any changes to Near 
Term Milestones, Out Year Milestones or Project End Dates require 
the agreement of all Parties, in consultation with public stakeholders. 
The draft Amended SMP should reflect any decisions made by the 
Parties during the planning, programming, and budgeting 
consultation process outlined in Section 12.1, above, and shall be 
based upon the assumption that all remedial requirements for the 
Facility submitted during the development of the President's budget 
for the upcoming fiscal year will be fully funded. Any disagreement 
over adjustment of Deadlines pursuant to this section shall be 
resolved in the context of the draft final amendment to the SMP. 
Additionally, the yearly Amended SMP shall contain revised Target 
Dates for the submission of Secondary Documents to be submitted 
during the upcoming three fiscal years. The yearly Amendment to 
the SMP will incorporate any newly finalized SSAs or Operable 
Units identified pursuant to this Agreement.

12.5 The Parties shall meet as necessary to discuss the draft 
Amended SMP. Within thirty (30) days of receipt of the draft 
Amended SMP, EPA and the State shall review the draft Amended 
SMP and provide comments to the Navy. If EPA or the State submit 
comments and are not satisfied with the draft Amended SMP, 
theParties will meet within fifteen (15) days of Navy's receipt of 
comments on the draft Amended SMP to discuss and finalize the 
draft Amended SMP. Within thirty (30) days of receipt of EPA and 
State comments on the draft Amended SMP, the Navy shall, as 
appropriate, make revisions and issue a revised draft, hereinafter 
referred to as a draft final SMP. Following receipt of the draft final 
SMP, EPA and the State have 30 days to approve or disapprove of 
the draft final SMP. If EPA or the state disapproves the draft final 
SMP, the Navy shall have 20 days from receipt of notice of 
disapproval to invoke dispute resolution directly to the SEC or amend 
the SMP in conformance with EPA and state comments.

12.6 It is understood by all Parties that the Navy will work with 
representatives of the EPA regional offices and the States located 
within the geographical area administered by LANTDIV to reach 
consensus on the reprioritization of work made necessary by any 
yearly appropriation shortfalls or other circumstances as described in 
section 11.7.

12.7 Within 45 days after LANTDIV has received official 
notification of LANTDIV's allocation based on the current year's 
Navy Environmental Restoration, Navy (ER,N) appropriation, the 
Navy shall determine if planned work (as outlined in the draft final 
SMP) can be accomplished with the allocated funds. If the allocated 
funds are sufficient to complete all planned work for that fiscal year 
and no changes to the draft final SMP are required, the Navy shall 
immediately forward a letter to EPA and the State indicating that the 
draft final SMP has become the final SMP. In the event that the 
Navy determines within the 45 -day period specified above that the 
allocated funds are not sufficient to accomplish the planned work for 
the Site (an appropriation shortfall), the Navy shall immediately 
notify the Parties and the Project Managers shall meet within thirty 
(30) days to determine if planned work (as outlined in the draft final 
SMP) can be accomplished through: 1) rescoping or rescheduling 
activities in a manner that does not cause previously agreed upon 
Near Term Milestones and Out Year Milestones to be missed; or 2) 
developing and implementing new cost-saving measures. If, during 
this thirty (30) day consultation period, the Parties determine that 
rescoping or implementing cost-saving measures are not sufficient to 
offset the appropriation shortfall and the Parties agree that Near Term 
Milestones, Out Year Milestones and Project End Dates should be 
modified, the Parties shall discuss these changes and develop 
modified Deadlines. Such modifications shall be based on the "Risk 
Plus Other Factors" prioritization process discussed in Section 11.3, 
above. If agreement on appropriate modifications cannot be reached 
among the Parties, EPA and the State retain their authority to 
disapprove a request to modify or extend existing Schedules and 
Deadlines. The Navy shall submit a revised draft final SMP within 
thirty (30) days of the end of the consultation period. The revised 
draft final SMP shall reflect EPA and State input during the 
consultation period outlined above. EPA and the State shall have 
twenty-one (21) days to review the revised draft final SMP. If EPA 
and the State concur with any modifications made in the revised 
SMP, EPA and the State shall notify the Navy in writing of their 
concurrence and the revised draft final SMP shall become the final 
SMP. If following the twenty-one (21) day review period for the 
revised draft final SMP, the Parties fail to agree on the content of the 
revised draft final SMP, the matter shall immediately be submitted 
directly to the SEC level for dispute resolution pursuant to Section 
XX - DISPUTE RESOLUTION. Within twenty (20) days after the 
conclusion of Dispute Resolution, the Navy shall revise and reissue 
as necessary, the final SMP. The pendency of any dispute under this 
Part shall not affect the timely adherence to the terms of this 
Agreement, including schedules, except as specifically provided 
herein. Enforceable deadlines established in the Final SMP are 
subject to stipulated penalties in accordance with Section XXI - 
STIPULATED PENALTIES, of this Agreement.

XXVII. FUNDING

27.1 It is the expectation of the Parties to this Agreement that all 
obligations of the Navy arising under this Agreement will be fully 
funded. The Navy agrees to seek sufficient funding through the 
Department of the Navy budgetary process to fulfill its obligations 
under this Agreement.

27.2 In accordance with CERCLA Section 120(e)(5)(B), 42 U.S.C. 
Section 9620(e)(5)(B), the Navy shall submit to DOD for inclusion 
in its annual report to Congress the specific cost estimates and 
budgetary proposals associated with the implementation of this 
Agreement.

27.3 Any requirement for the payment or obligation of funds, 
including stipulated penalties, by the Navy established by the terms 
of this Agreement shall be subject to the availability of appropriated 
funds and provisions governing the payment of penalties (10 USC 
2703(e)). No provision herein shall be interpreted to require 
obligation or payment of funds in violation of the Anti-Deficiency 
Act, 31 U.S.C. Section 1341. In cases where payment or obligation 
of funds would constitute a violation of the Anti-Deficiency Act, the 
dates established requiring the payment or obligation of such funds 
shall be appropriately adjusted.

27.4 If appropriated funds are not available to fulfill the Navy's 
obligations under this Agreement, EPA and the State reserve the right 
to initiate an action against any other person, or to take any response 
action, which would be appropriate absent this Agreement.

27.5 Funds authorized and appropriated annually by Congress under 
the Environmental Restoration, Navy appropriation in the 
Department of Defense Appropriation Act to the Navy will be the 
source of funds for activities required by this Agreement consistent 
with Section 211 of SARA, 10 U.S.C. Chapter 160. However, 
should the ER,N appropriation be inadequate in any year to meet the 
total Navy CERCLA implementation requirements, the Navy will, in 
consultation with EPA and stakeholders, prioritize and allocate that 
year's appropriation, considering legal requirements pertaining to 
each site, relative risks to human health and the environment, and 
other relevant factors.