ENVIRONMENTAL LAW INSTITUTE
RESEARCH REPORT
ENVIRONMENTAL
LAWHNSTITUTE"
An Analysis of State
Superfund Programs:
50-State Study, 1998 Update
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Compilation of information in this document has been funded wholly by the United
States Environmental Protection Agency under assistance agreement CR-822795-01 to the
Environmental Law Institute. This document has been subjected to the Agency's publications
review process and has been approved for publication as an EPA document. Mention of trade
names or commercial products does not constitute endorsement or recommendation for use
of that, product.
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AN ANALYSIS OF STATE
SUPERFUND PROGRAMS:
50-State Study, 1998 Update
Copyright © 1998
Environmental Law Institute3
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Acknowledgements
This report was prepared by the Environmental Law Institute (ELI) with funding from the U.S.
Environmental Protection Agency (U.S. EPA) under Assistance Agreement ID No. CR-822795-01. It
does not represent the views of the U.S. EPA and no official endorsement should be inferred.
Environmental Law Institute staff contributing to this report were Susan Bass, Tobie Bernstein,
Linda Breggin, Mary Brevdo, Maura Carney, Eric Feldrrian, Nathaniel Garrett, Ivie Higgins, Julie
Jones, Nadia Jones, James McElfish, Matthew Mitchell, John Pendergrass, Sheela Sathyanarayana,
and Jill van Berg. James Konz, of the U.S. EPA also contributed to the report. The assistance of
State program officials is gratefully acknowledged. This report is the sixth in a series of ELI studies
of all State superfund programs beginning in 1989, the first four of which were published by U.S.
EPA,
An Analysis of State Superfund Programs: 50-State Study, 1998 Update
Copyright* 1998, Environmental Law Institute". All rights reserved.
ELI Project #941724
i
(Environmental Law Institute9, The Environmental Forum9, ELR*, and the Environmental
Law Reporter* are registered trademarks of the Environmental Law Institute.)
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Table of Contents
CHAPTER I: INTRODUCTION 1
PURPOSE OF THE STUDY 1
RESEARCH METHODOLOGY 2
ORGANIZATION OF THE REPORT , 2
COMPARISON OF STATE DATA .2
CHAPTER H: DEVELOPMENTS IN STATE PROGRAMS 3
CHAPTER HI: STATE "SUPERFUND" PROGRAMS 7
A. OVERVIEW OF CLEANUP ACTIVITIES AND CAPABILITIES :... ; '. ; 7
B. STATUTORY AUTHORITIES ; """!""!! 8
C. HAZARDOUS SUBSTANCES SITES 9
Site Inventory ; p
D. PROGRAM ORGANIZATION... H
Cleanup Program Organization .'.... „. 77
Staffing Levels. ;... 72
Legal Support 73
Funding Sources ;__ 14
E. FUNDS _ 14
Fund Balances and Additions..: , 75
Fund Expenditures ; ; • 7^3
Sources of Funds .; 27
Uses of Funds .' ; 23
Special Conditions on Fund Use 25
F. CLEANUP POLICIES '. , 26
G. PUBLIC PARTICIPATION ; ; .....28
General ; 2S
Public Notice Requirements .. 2P
Public Comment. ' 29
Public Hearings/Meetings A . JQ
Grants : /' JQ
Other Public Participation Mechanisms 31
H. ENFORCEMENT .......:..;.. 31
Liability ' 31
Enforcement Tools 34
Natural Resource Damages Programs , , . . 35
Property Transfer Provisions .; _' " 35
CHAPTER IV: VOLUNTARY REMEDIATION PROGRAMS... 39
A. VOLUNTARY CLEANUP PROGRAMS 39
Authority. 3P
Administration 40
Eligibility 40
Cleanup Standards • JQ
Cleanup Activities 47
Incentives. ; 47
Funding 42
B. BROWNFIELDS 43
Criteria for Inclusion 45
Cleanup Activities 45
Cleanup Standards 4$
Incentives.
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CHAPTER V: STATE PROGRAM TABLES 49
TABLE V-l: OVERVIEW OF STATE PROGRAMS 50
TABLE V-2: STATUTORY AUTHORITIES AND PRO VISIONS 53
TABLE V-3: HAZARDOUS SITES 58
TABLE V-4: ACTIONS TAKEN AT NON-NPL SITES 61
TABLE V-5: PROGRAM ORGANIZATION 64
TABLE V-6: PROGRAM ADMINISTRATION AND STAFF FUNDING SOURCES 68
TABLE V-7: STATE CLEANUP FUNDS 71
TABLE V-8: EXPENDITURES AND OBLIGATION FROM STATE CLEANUP FUNDS 76
TABLE V-9: SOURCES OF STATE CLEANUP FUNDS 81
TABLE V-10: USES OF STATE CLEANUP FUNDS '. 85
TABLE V-l 1: STATE CLEANUP POLICIES AND CRITERIA '. 90
TABLE V-12: STATE CLEANUP POLICIES AND CRITERIA FOR VOLUNTARY CLEANUP PROGRAMS 93
TABLE V-13: PUBLIC PARTICIPATION 96
TABLE V-14: PUBLIC PARTICIPATION FOR VOLUNTARY CLEANUP PROGRAMS 99
TABLE V-15: LIABILITY STANDARDS 1°2
TABLE V-16: PENALTIES AND DAMAGES AVAILABLE UNDER STATE SUPERFUND STATUTES 105
TABLE V-17: NATURAL RESOURCE DAMAGES AUTHORITIES 108
TABLE V-18: NATURAL RESOURCE DAMAGE CLAIMS UNDER STATE LAW '. Ill
TABLE V-19: NATURAL RESOURCE DAMAGE CLAIMS UNDER CERCLA 114
TABLE V-20: NATURAL RESOURCE RESTORATION 117
TABLE V-21: PROPERTY TRANSFER PROVISIONS '. 120
TABLE V-22: VOLUNTARY CLEANUP AUTHORITIES 123
TABLE V-23: VOLUNTARY CLEANUP PROGRAMS 126
TABLE V-24: BROWNFIELDS PROGRAMS 131
TABLE V-25: BROWNFIELDS SITES 135
CHAPTER VI: STATE SUMMARIES 139
REGION 1 14°
REGION 2 155
REGIONS • 163
REGION 4 180
REGIONS 202
REGION 6 216
REGION? 232
REGIONS 243
REGION 9 : 257
REGION 10 • 269
APPENDIX A: LIST OF STATE WEB PAGES 281
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List of Acronyms
AG - Attorney General
ARARs - Applicable or Relevant and Appropriate Requirements
AST - Above-ground Storage Tanks
ASTSWMO- Association of State and Territorial Solid Waste Management Officials
CA - Cooperative Agreement
CERCLA - Comprehensive Environmental Response, Compensation, and Liability Act of 1980
CERCLIS - Comprehensive Environmental Response, Compensation, and Liability Information
System
CPCA - Core Program Cooperative Agreement
DSMO A - Department of Defense and State Memorandum of Agreement
ELI - Environmental Law Institute
FOIA - Freedom of Information Act
FTE - Full-time Equivalent
GAO - General Accounting Office :
HRS - Hazard Ranking System
LUST - Leaking Underground Storage Tank ',
MCL - Maximum Contaminant Level
MCLG - Maximum Contaminant Level Goal
MSCA - Multi-Site Cooperative Agreement
NEAR - Non-Binding Allocation of Responsibility
NCP - National Oil and Hazardous Substances Pollution Contingency Plan
NPL - National Priorities List for Uncontrolled Hazardous Waste Sites
NRD - Natural Resource Damages
OGC - Office of General Counsel
O&M - Operations and maintenance
OPA - Oil Pollution Act
PA/SI - Preliminary Assessment/Site Investigation
PRP - Potentially Responsible Party
RA - Remedial Action
RCRA - Resource Conservation and Recovery Act
RD - Remedial Design
RI/FS - Remedial Investigation/Feasibility Study
ROD - Record of Decision
RP - Responsible Party
RPM - Remedial Project Manager
SACA - Support Agency Cooperative Agreement
SARA - Superfund Amendments and Reauthorization Act of 1986
SMOA - Superfund Memorandum of Agreement
SSCA - Site Specific Cooperative Agreement
TAG - Technical Assistance Grant
UST - Underground Storage Tank
VOC - Volatile Organic Compound
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AT
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Chapter I: Introduction
In 1976, New Jersey's landmark Spill Compensation and Control Act pioneered the concept
of government programs to clean up contaminated land. Four years later, Congress modeled the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA,
generally referred to as Superfund) on New Jersey's Spill Act. In the 18 years since the passage of the
Federal Superfund law, the nation has realized that contamination of land and water with hazardous
substances is far more common, and more expensive to clean up, than was thought in 1980.
Coordinated cleanup efforts between Federal and State agencies currently address numerous sites
targeted by the U.S. Environmental Protection Agency's (EPA's) National Priorities List (NPL), the
list of sites with uncontrolled releases of hazardous substances that are the highest priorities for long-
term remediation.
At NPL sites, the role of the States ranges from required cost sharing at Federally funded
cleanups to active site management. A vast number of contaminated sites do not meet the criteria for
inclusion on the NPL. For these non-NPL sites the Federal government's role is likely to be limited to
site assessment and emergency response or removal activities. For many non-NPL sites, the Federal
government may not be involved at all. Thus, if any government-supervised activity is to occur at
non-NPL sites, States will have to oversee, enforce, or fund cleanups. For these reasons, the role of
the States in addressing contaminated sites, independently and in concert with the Federal
government, has become increasingly important. The prospects for increasing State involvement at
both NPL and non-NPL sites depend on the willingness and capacity of States to develop effective
programs, obtain adequate resources to fund cleanups, encourage private party cleanups, take
enforcement action where needed to ensure private cleanups, and conduct oversight activities.
A key step in enhancing the Federal-State partnership is to understand the States' cleanup
programs aimed at non-NPL sites. This is the objective of the present report. This report updates the
results of a study initially conducted in 1989 (and updated in 1990, 1991, 1993, and 1995) by the
Environmental Law Institute (ELI) in cooperation with EPA's Office of Emergency and Remedial
Response.
Purpose of the Study
Under the Superfund Amendments and Reauthorization Act (SARA) of 1986, Congress
requires EPA to involve States in the Superfund program in a "substantial and meaningful" way.
EPA's State, Tribal and Site Identification Center is responsible ftir developing regulations, guidance,
and policy related to this Congressional mandate. As part of its responsibilities, the Center routinely
collects and examines information about States' capabilities to contribute to or manage cleanups at
hazardous substance sites. The Environmental Law Institute's Center for State, Local, and Regional
Environmental Programs helps States and the Federal government to improve State environmental
programs and promotes better public understanding and cooperation between State and Federal
environmental agencies. Prepared by ELI under a cooperative agreement with EPA, this study
examines site cleanup programs in all 50 States, and the District of Columbia and the
Commonwealth of Puerto Rico, and provides descriptions of their statutes, program organization,
staffing, funding, expenditures, cleanup standards, and cleanup activities. For convenience in
discussion and in the tables accompanying this report (see Chapter V), these are all referred to as
"States." Totals, therefore, include 52 "States."
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Research Methodology
To ensure the completeness and accuracy of the information for this report, ELI collected
statutes, regulations, and other State documents, interviewed State program staff by telephone, and
verified information for each State. ELI initially reviewed both the information gathered for prior
versions of the report and newer information found in State documents, legislative reporting services,
newsletters, and EPA documents. A request for updated program information was sent to each State
with a general request for copies of relevant legislative amendments or State reports. ELI then
conducted telephone interviews to clarify written responses and to reconcile any discrepancies in the
data
In assembling this report, ELI has tried to take a "snapshot" of State cleanup programs, while
recognizing that they are dynamic and that changes may occur after the publication of this update.
For this report, ELI used State information available on or before December 31, 1997. States were
provided an opportunity to review and update all of the information in the State program summaries.
Organization of the Report
The report is divided into three discussion chapters, a chapter devoted to tables, and a chapter
of State program summaries. Chapter n highlights the most noteworthy developments in State
capabilities that emerged in comparing the 1997 information with the previous reports. An analytical
overview of State superfund programs is provided in Chapter HI. This overview examines statutes,
program staffing and organization, sites, cleanup activities, cleanup policies and standards, public
participation requirements, funding and expenditures, and enforcement tools. Chapter IV discusses
the States' voluntary remediation programs and brownfields programs, a topic of particular interest
and activity first covered in the 1993 Study. Chapter V presents detailed program information
arranged in tables that facilitate comparisons among the 52 States (including the District of Columbia
and the Commonwealth of Puerto Rico). Chapter VI contains individual summaries of each State
program. For the few States that do not have non-NPL cleanup programs, the summaries focus on
their capabilities to address contaminated sites using other authorities and resources.
Comparison of State Data
There is significant interest in State cleanup programs due to the pending reauthorization of
the Federal Superfund statute. The information in this report will consequently receive increased
scrutiny and use. It is, therefore, critical to acknowledge the limitations of this data in directly
comparing State programs.
First, this study covers non-NPL sites, with information about NPL sites provided primarily
for context. Second, differences in State program terminology, administrative procedures, and
accounting procedures, as well as in the detail of information provided by States, limit the
comparability of programs. Variation among State cleanup programs should be expected because
there is no national standard. There may also be differences between the information presented in this
report and in other studies concerning State cleanup programs. This is due not only to the differences
among States but also to specific program questions asked. The most appropriate comparisons,
therefore, are among State non-NPL cleanup capabilities and activity levels, and similarities and
differences in the general types of cleanup authorities and policies applied.
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Chapter II: Developments in State Programs
The capabilities of States to clean up contaminated sites and to oversee others who clean up
sites depend on many factors, including availability of funds to pay for cleanups and related
activities, enforcement authorities, sufficient staff to implement the cleanup program, and cleanup
standards or a process for determining when a cleanup is successful. Successful cleanup programs
also are able to include the public in the process for making cleanup decisions. The Environmental
Law Institute has studied and reported on these and other aspects of State cleanup programs in a
series of reports beginning in 1989. Comparing information from the 1989, 1990,1991, 1993, and
1995, reports with the 1997 data in this update of An Analysis of State Superfund Programs reveals
that, collectively, the States have steadily increased their capabilities since 1989. Although this Study
is organized by discrete program elements, States' cleanup programs should be evaluated holistically
looking at how all the elements work together, not element by element. New Jersey, for example,
despite having 138 fewer staff in 1997 than in 1995, a decrease of 21.2%, completed 235 more
cleanups in 1997 than in 1995, an increase of 8.6%.
Furthermore, virtually every State has increased its individual capability during this period.
Chapter m describes the capabilities of the States at the end of the 1997 fiscal year and compares
that information to prior years, particularly 1995. This Chapter prpvides an overview of States'
capabilities and highlights developments in State cleanup programs as of the end of the States' fiscal
year 1997 (FY97).
The number of sites States identified as needing attention (i.e., some type of cleanup)
continued to decline, to approximately 24,000 sites, from 30,000 sites in 1995 and a high of 40,000
sites in 1993.
The number of known and suspected sites, a broader category that may include sites that have
not yet been investigated, also declined to approximately 69,000 sites from 85,000 in 1995 and
100,000 in 1993.
Aggregate program staff levels decreased slightly to 3,474 after increasing slightly from
3,394 in 1991 to a high of 3,585 in 1995 (the numbers are not exactly comparable as different States
did not report staffing numbers in different years). Legal support was provided by an aggregate of
206 attorneys, compared to 211 in 1995, 247 in 1993, and 262 in 1991.
State cleanup funds had an aggregate balance of $1.41B, a 2.5% decrease from $1.46B in
1995 and continuing the decline from the maximum of $2.43B in 1990.
Forty-four (44) States reported spending $565.1M on cleanup activities during FY97,
compared to 44 States reporting spending $386.1M in FY95 and $711.7M spent by 44 States in 1993.
Thirty-nine (39) States reported obligating an additional $448M to be spent in the future, compared
to $363.4M obligated by 38 States in 1995 and $459.2M obligated by 36 States in 1993.
During FY97, 45 States reported adding $538.3M to their State cleanup funds, which did not
quite offset the amount spent in 1997 (the numbers are not exactly comparable as a few States
reported one figure but not the other). Additions to funds have varied considerably over the years,
with a maximum of $957.3M added by 46 States in 1993 and S444.6M added by 46 States in 1995.
The number of States that have standardized at least some of their cleanup standards by
adopting regulations continues to increase, from only seven in 1991, to 19 in 1993, 24 in 1995 and 44
States in 1997. In addition, 17 States have broadened the criteria they use to set cleanup standards,
with seven States adding groundwater standards and five States adding soil standards.
Most States use a variety of criteria to determine cleanup standards, but over the past ten
years a consensus seems to have developed about the most important criteria. Among the mdst
commonly used criteria are: risk assessments for carcinogens and noncarcinogens (44 States); surface
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water quality criteria (42 States); drinking water standards (MCLs or MCLGs)(42 States);
groundwater standards (39 States); soil standards (30 States) and future land use (41 States). Only
Puerto Rico provided no information about cleanup criteria.
A significant development has been the rapid adoption by States of future land use as a factor
in determining cleanup levels to be achieved. Future land use was first mentioned as a factor in
determining cleanup standards in 1995, when five States emphasized that they considered future land
use as an important factor. In 1997, therefore, land use was added to the list of potential cleanup
criteria, and 41 States reported that they consider land use in determining cleanup standards.
If future land use is taken into consideration in determining cleanup levels, there must be
some mechanism for assuring that land will continue to be used in a manner that is compatible with
the cleanup. Land use then becomes an integral part of maintaining the protectiveness of the cleanup.
The mechanisms for maintaining appropriate land uses are institutional controls, and include zoning,
notices in deeds or property records, restrictions on use of property placed in the deed, and regulatory
restrictions on the use of groundwater. Twenty-nine (29) States report using deed notices or deed
restrictions as institutional controls, while at least five States report that they have no institutional
controls in place.
Virtually all States provide for public participation in decisions concerning hazardous
substance cleanups and voluntary or brownfields cleanups, with some also providing for public
participation in natural resource restoration projects. Forty-seven (47) States reported requiring some
form of public participation.
State enforcement and cost recovery provisions have remained relatively constant, however a
few States have made changes to their liability standards. Forty-one (41) States have strict liability,
36 States use joint and several liability to allocate responsibility for costs among multiple responsible
parties at a site, and 32 States use the combination of strict, joint and several liability. Eleven (11) of
the States that use joint and several liability also allow responsible parties to enter into an allocation
process or prove a divisible share of the total cost. Only five States specify proportional liability as
the only allocation standard.
Forty-three (43) States have retroactive liability under their State cleanup laws, the same as in
1995.
Thirty-two (32) States report having independent State authority to recover for damage to
natural resources at sites contaminated by hazardous substances. Only ten States reported having
recovered for such damages, while 11 States reported having claims pending.
Thirty-one (31) States have property transfer provisions, up from 25 in 1995, 23 in 1993 and
18 in 1991. Property transfer provisions are "laws, regulations, or policies that link the discovery,
identification, investigation, cleanup, or disclosure of hazardous substance contamination to transfers
of real property, or to transfers of ownership or control of such property."
Forty-four (44) States now have voluntary cleanup programs, a substantial increase from the
31 States that had such programs in 1995, and 14 in 1993. At least two States that do not have
voluntary cleanup programs nevertheless allow private parties to initiate voluntary cleanups. In
addition, Louisiana has passed legislation establishing a program framework, but has not yet begun
accepting sites.
Most States apply the same cleanup standards to voluntary cleanups as they apply to State
lead or enforcement cleanups.
Most States encourage voluntary cleanups by offering some form of incentive to volunteers.
At least 40 States provide some form of release from liability for future cleanup, but these releases
vary widely in form and substance.
States continue to create programs to facilitate cleanup and redevelopment of brownfields
sites, including at least twelve new programs since 1995. Half of the States now report having
specific brownfields programs, about half of which are in conjunction with their voluntary cleanup
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programs and about half of which are separate programs. Several other States target brownfields
through other means.
More than 600 cleanups are underway at brownfields sites, with the vast majority being in
Illinois (439). In addition, although it could not provide a precise number (and thus was left out of
Table V-25 and the 600 cleanups reported above) Minnesota reported having "several hundred"
cleanups underway at brownfields sites. More important in terms, of the ultimate goal is that the
States report having commitments for redevelopment at 236 brownfields sites.
These developments are merely some of the indicators of the breadth and vitality of activities
being taken by States to protect human health and the environment from risks associated with sites
contaminated by hazardous substances. More detailed information on these and other aspects of State
hazardous substance cleanup programs is provided in the remaining chapters of this report.
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Chapter III: State "Superfund" Programs
Since 1980, the vast majority of States have enacted laws governing cleaning up
contaminated land and establishing funds to pay for cleaning up non-NPL sites where no responsible
party is available, able or willing to do it Many States have been cleaning up land contaminated by
hazardous substances, or overseeing such cleanups, for well over ten years. Even States that have
only recently established cleanup programs have benefited from the experience of other States.
The fact that State cleanup laws are independent of the Federal Superfund statute is critical to
understanding the current state of development of State cleanup programs. This Federal law did not
follow the pattern of the Federal pollution control laws, which set minimum national standards that
could be administered by the States after their programs received approval by the Federal agency.
The absence of a requirement to submit their programs to Federal review and approval has enabled
States to experiment widely and to develop some highly innovative and effective cleanup programs.
Nevertheless, the majority of the State cleanup programs have authorities similar to the Federal
Superfund program. For the purposes of this study, a State "superfund" or cleanup program has some
or all of the following characteristics:
1) Procedures for emergency response actions and more permanent remediation of
environmental and health risks;
2) Provisions for a cleanup fund or other financing mechanism to pay for studies and
remediation activities; !
3) Enforcement authorities to compel responsible parties (RPs) to conduct or pay for
studies and/or site remediation; \
4) Staff to manage State-funded remediation and to oversee RP-conducted remediation;
and
5) Procedures for public participation in decision-making on site cleanup.
This chapter presents detailed information on State cleanup programs for all 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico. For convenience in discussion and in
the tables accompanying this report (see Chapter V), these are all:referred to as "States." Totals,
therefore, include 52 "States." This chapter highlights similarities and differences among State
statutes and programs in areas such as cleanup and oversight capabilities, number of sites cleaned up,
staffing, funding, enforcement authorities, cleanup standards, and public participation.
A. Overview of Cleanup Activities and Capabilities
State cleanup programs have expanded and improved substantially since ELI first studied
them in detail in 1989, but the improvement has not been uniform and there have been some
retrenchments in the past few years, particularly in funding, and to a lesser extent staffing. Even these
decreases may not have affected an individual State's ability to cleanup sites if other elements of the
program have been augmented. Fewer staff and less State money may be needed, for example, if a
State is relying more on a new voluntary cleanup program, or if it has improved the efficiency of its
State superfund program. Among the more notable improvements has been in actual cleanups. In
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1989 half of the States were actively managing cleanup activities at non-NPL sites, but by the end of
FY97 virtually all of the States were actively managing non-NPL cleanups and the States report
having completed approximately 41,000 cleanups over the entire period that their programs have
existed. In the aggregate, the States have more than 13,700 cleanups underway and completed more
than 5,500 inFY97. In addition, they are overseeing more than 5,500 voluntary cleanups that are
currently underway.
As early as 1989 all but two States had established a fund from which they could pay for
cleanups if no responsible parties could be found to pay for, or conduct, the cleanup. But at the end
of FY89, 18 of those States' funds had balances of less than $1 million (M), which is likely to be
insufficient to pay for a permanent remedy at even a single site with moderate contamination. In
1997, only Nebraska and the District of Columbia remain without a fund, and, although 11 States
have funds with balances below $1M, some of those balances are low because the State has spent
substantial amounts on cleanups. Nevertheless, the amount of money available to a State is one
indicator of capability to clean up sites and the number of States with small amounts of money
available (< $1M) increased substantially between 1995 (4) and 1997.
Another indicator of the maturation of State cleanup programs is the degree to which States
have standardized their decisions on the crucial question of how clean is clean. In the late 1980s,
most States were still in the site discovery and assessment stage and few had much experience with
deciding what cleanup standards to apply. Thus cleanup standards were largely determined on an ad
hoc, site-by-site basis, and many States were unclear about where to look for guidance or for
appropriate standards. In 1989, 20 States reported using EPA guidance in determining cleanup
standards, but few States specifically identified other potential sources of standards. By 1997
virtually every State had moved beyond merely looking to EPA for guidance to using a variety of
criteria, including risk assessments for carcinogens and noncarcinogens, surface water quality
criteria, future land use, drinking water standards, groundwater standards and soil standards. The
maturity of State cleanup programs is also illustrated by the increase, from two in 1989 to forty-four
in 1997, in States that have established some cleanup standards by regulation. Thus, the vast majority
of States have moved from purely ad hoc decision making to providing predictability for this crucial
decision.
B. Statutory Authorities
Table V-2 summarizes the many cleanup statutes and related environmental laws enacted by
the States to address sites contaminated by hazardous substances. In some States with comprehensive
cleanup statutes, these laws include State cleanup funds, enforcement authorities, priority lists,
natural resource damages, citizen suit provisions, victim compensation and water replacement,
provisions governing property transfers, and voluntary cleanup standards. Table V-2 is intended to
show which State statutes authorize specific activities or programs. Totals listed in this section and in
Table V-2 may not, however, be the same as the number of States listed as having a particular
program, such as a cleanup fund or brownfields program, because the State may have created the
program as part of an administrative initiative or under more general authority.
An area where States have been active in implementing legislation is the remediation and
reuse of industrial property through brownfields programs. Significantly, 26 States have separate
statutes for voluntary cleanup programs or brownfields programs, and several States provide
financial and tax incentives for the voluntary cleanup of these sites. Upon successful cleanup, a
certificate of completion, or other form of written proof, is provided to demonstrate that the action
has taken place (see Chapter IV for further discussion of voluntary cleanup programs and
brownfields programs). Some States have added to the authority of their statutes. Twenty (20) States
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have natural resource damages provisions in their hazardous substance cleanup laws (others have
such provisions in their natural resource laws); Colorado and Indiana are recent additions to the list.
This year, 14 States listed one statute as the sole source of statutory authority (Alabama,
California, Delaware, the District of Columbia, Massachusetts, Michigan, Minnesota, Missouri,
Oregon, South Carolina, Tennessee, Washington, Wisconsin, and Wyoming). Of these 14 States, two
States without cleanup programs (District of Columbia and Wyoming) reported having only
enforcement authority in their one statute. Furthermore, 11 of these States combined their authorities
for a superfund cleanup program and a voluntary cleanup program under one statute (Alabama,
California, Delaware, Massachusetts, Michigan, Minnesota, Missouri, Oregon, Tennessee,
Washington, and Wisconsin). Of the 19 States reporting two separate sources of legal authority
(Arizona, Arkansas, Florida, Georgia, Illinois, Kentucky, Hawaii, Maine, Maryland, Nebraska,
Nevada, New Hampshire, North Dakota, Pennsylvania, Puerto Ripo, Rhode Island, Texas, Utah, and
Virginia), 11 had separate statutory authorities for a superfund program and a voluntary cleanup or
brownfields program. On the other end of the spectrum, five States reported having five separate
statutes for authority (Kansas, Louisiana, Montana, New Jersey, and Oklahoma).
Three States reported authority for all eight listed items in one statute (Michigan,
Pennsylvania, and Washington). Iowa and New Jersey also report; authority for all eight listed
criteria, but across multiple statutes. Additionally, eight States had singular authority for at least six
criteria, with all of these statutes providing authority for a cleanup fund, enforcement, apriority list,
and natural resource restoration (Arizona, California, Delaware, Hawaii, Massachusetts, Minnesota,
Montana, and Oregon).
Also of note, 15 States reported authority for replacing water supplies (Arizona, California,
Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kansas, Michigan, New York, Oregon,
Pennsylvania, Texas, and Washington), an overall increase of six States from the 1995 Study.
C. Hazardous Substances Sites
Chart III-l: Hazardous Sites
Site Inventory
State programs have responsibility for a substantial number of sites contaminated with
hazardous substances. While approximately 1,200 sites are on the National Priorities List (giving
EPA primary jurisdiction for remediation), tens of thousands of sites are not on the NPL.
Responsibility for remediation of these sites
falls primarily to the States (or to EPA's
removal program).
Ascertaining the number of non-NPL
sites is critical to understanding the
magnitude of the cleanup task facing the
States. This study reports the hazardous
substance:sites identified by the States while
excluding petroleum-contaminated sites and
leaking underground storage tank sites
(except Alaska, which does not differentiate
between petroleum sites and hazardous
substance .sites and where 80% of its sites are
petroleum related). The number of non-NPL hazardous substance sites for each State is reported in
Table V-3.
i
[umber of
a
100000 -j
90000-
80000-
70000-
60000-
50000-
40000-
30000-
20000-
10000-
0-
1989 1990 1991 1993 1995
ED Known and Suspected • Needing Attention
1997
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ELI has used three categories for reporting the number of non-NPL sites. These categories
have been devised to assure that, even though States use widely differing internal approaches in
accounting for sites, similar sites are counted in similar ways. The categories and approximate 1997
totals are:
• known and suspected sites (~69,000 sites)
• sites identified as needing attention (~24,000 sites)
• sites on a State inventory, priority list, or registry (~15,500 sites, but numbers not
comparable)
The broadest category of hazardous substance sites is known and suspected sites. This
category reflects the maximum number of sites known to each State and tracked in some way in
connection with its cleanup program. The number is an estimate in some States, but is a confirmed
number in most. In some States, the known sites category includes those that have not yet undergone
assessment. This category is most useful (1) in determining how large each State perceives the
universe of sites is within its own jurisdiction, and (2) in defining an outer limit to the national task
of addressing hazardous sites. The number of known and suspected sites in each State ranges from 0
(North Dakota) to 15,177 (New Jersey). In 1997, the States reported approximately 69,000 sites in
this category, a decline from the over 85,000 reported in 1995. The decline appears to result
primarily from the completion of cleanup activities (~5,500) and a few States reclassifying sites.
Large changes in the reported numbers for known and suspected sites between 1995 and
1997 occurred in a handful of States. Colorado, Connecticut, Florida, Kentucky, New Hampshire,
New York, and Wisconsin reported increases, whereas California, Iowa, Louisiana, Massachusetts,
New Jersey, Texas, and Vermont reported decreases. However, most of these fluctuations are
attributed to changes in reporting systems.
The second, and most useful, of the hazardous site categories tracked by ELI is sites
identified as needing attention. This category—a subset of the known and suspected sites - consists
of sites that have been evaluated by the State and determined to require some level of cleanup or
further evaluation. This number is the best indicator of the workload facing each State's cleanup
program, and is the most useful for national and State program planning purposes. Nationally, the
States reported approximately 24,000 sites in this category in 1997, a decline of approximately 5,500
sites since 1995. The number of sites needing attention in particular States ranges from 0 (District of
Columbia and North Dakota) to 4,915 (New Jersey). Only six States have more than 1,000 sites in
this category: Alaska (1,206), Florida (1,094), Massachusetts (2,679), Michigan (2,789), New Jersey
(4,915), and Washington (1,006). While some of the decline in this category from 1995 to 1997
reflects reclassification of sites, it also reflects continued progress in accomplishing cleanups.
Notably, the 1,402 cleanup actions New Jersey completed during this period resulted in a significant
decline in the number of sites identified as needing attention (6,500 sites in 1995 compared to 4,915
sites in 1997. Only Arkansas and Florida had significant increases in sites identified as needing
attention. None increased by more than a few hundred. In summary, it appears that the total universe
of sites requiring attention has stabilized and continues to decline as State assessment and cleanup
programs have had an effect.
Some States also track the types of sites identified needing attention. Cumulatively, there are
approximately 850 municipal landfills, 250 industrial landfills, 1800 manufacturing sites, 350
recycling sites, 60 mining sites, and 8,847 other types of sites.
The third category reflects the number of sites maintained on a State's official priority list,
inventory, or registry. Approximately 40 States maintain some kind of list, registry, or inventory -
usually pursuant to a statutory or regulatory requirement. Although about 15,500 sites are on these
10
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lists, State definitions and approaches vary widely so the aggregation of these numbers is not very
useful and no direct comparisons between State lists can be made. Many States maintain no formal
list or registry; others do, but vary widely in approach. Some lists include all known and suspected
sites, while others include only a very small number of sites that have completed a long evaluation
process. Still others include only sites where cleanup is funded by States rather than by responsible
parties. For example, Connecticut lists only 11 sites on its registry, but, at the same time, has
identified 668 sites as needing attention. Conversely, Wisconsin's registry lists 5,000 sites, although
only 600 Wisconsin sites need attention.
At non-NPL sites, clean up activities were completed at more than 5,500 sites, bringing the
total number of sites completed to roughly 41,000 since the inception of the various States'
programs. The total numbers of cleanup activities in progress is approximately 13,700.
Over the last ten years, many States have implemented voluntary cleanup programs (VCPs).
Voluntary cleanup activities are underway at approximately 5,500 sites. Since the start of the VCPs
in the various States, approximately 6,800 cleanup activities have been completed, including roughly
2,400 sites in 1997.
D. Program Organization
State hazardous substance programs are generally administered within the State agency that
has primary responsibility for environmental matters. In North Dakota and Hawaii, the cleanup
program is carried out by the State health department. In a few States, including Kansas, Colorado
and South Carolina, the responsible agency has jurisdiction over both health and the environment.
Table V-5 lists the responsible agencies for the 52 States and the offices that administer the
cleanup programs. This table provides the staffing levels for the cleanup programs, including actual
and authorized full time equivalent (FTE) positions. Table V-5 also lists the offices providing legal
support to the cleanup programs, along with actual staffing levels.
Program organization varies considerably within the State agencies, and it is difficult to make
generalizations concerning program administration. The discussion below includes examples of some
of the more noteworthy organizational features of the States' hazardous substance cleanup programs.
This discussion also highlights information from Table V-6, which lists the funding sources for staff
and administrative expenses of the State's cleanup program, as well as the percentage contribution
from each source.
Cleanup Program Organization
Principal Program Office
Within the responsible agency, the hazardous substance cleanup program is usually
administered by the division that carries out the State's waste programs, although in some cases the
division has broader or narrower responsibilities. The hazardous substance cleanup program may, in
turn, be housed in a separate office within this division, as is the case in Arizona, Kentucky,
Oklahoma, Pennsylvania and a number of other States. In some States, the cleanup program is
divided into two or more units or offices with separate functions. For example, the Bureau of
Environmental Remediation within Kansas' Department of Health and Environment addresses
hazardous substance site cleanup through its Restoration Section and its Remediation Section.
Similarly, the Waste and Water Division of the New Mexico Environment Department's
Groundwater Quality Branch administers the State's cleanup program through its Superfund
Oversight Section, as well as its Assessment and Abatement Section. In Maryland, the Department of
11
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the Environment's Environmental Restoration and Redevelopment Program is responsible for
hazardous substance cleanup activities and has three divisions involved in this area: the Site and
Brownfield Assessment/State Superfund Division; the Federal Facilities and NPL Division; and the
Voluntary Cleanup Program.
Intra-Agency Activities
In a number of States, other divisions within the responsible agency provide support to the
State's hazardous substance cleanup program. In South Carolina, the Division of Site Assessment
and Remediation is the lead division administering the cleanup program; however, staff in the
Division of Hydrogeology also provide support. In Missouri, the cleanup program administered by
the Division of Environmental Quality receives support from the Division of Geology and Land
Survey. In Massachusetts, the Bureau of Waste Site Cleanup is the lead bureau administering the
Waste Site Cleanup Program, however the Bureaus of Waste Prevention and Resource Protection
also have staff dedicated to the program. In addition, scientists in the Department of Environmental
Protection's Office of Research and Standards provide risk assessment support.
Inter-Agency Activities
The agency that administers the State's hazardous substance cleanup programs often relies on
other agencies for assistance. In some States, including Maine and Missouri, the environment agency
consults regularly with the public health agency on risk assessment, laboratory testing and other
activities. The responsible agency may also work with the State economic development agency on
implementing brownfields financial incentives programs, as is the case in Connecticut and Maryland.
The responsible agency may share jurisdiction over assessment and restoration of natural
resource damages (NRDs) with one or more State natural resource agencies. This is the case in
Maryland (Department of Environment and Department of Natural Resources), Texas (Texas
Natural Resource Conservation Commission, Texas General Land Office and Texas Parks and
Wildlife Department) and a number of other States. In New York and Michigan, the environment
agency shares NRDs responsibilities with the State Attorney General's Office.
Staffing Levels
m
Chart III-2: Staffing Level
The 49 States that provided staffing information reported a total of 3,474 FTE staff working
the States' cleanup programs. In most cases, this number reflects staff positions devoted to
hazardous substance remediation activities. In
some cases, however, the State's principal
cleanup program office undertakes a variety of
related activities—e.g., RCRA hazardous waste
and LUST program implementation, in addition
to site remediation activities—and the staffing
levels reported reflect these broader program
activities.
Staffing levels vary considerably, from
New Jersey's 512 FTE positions, to South
Dakota's 2.5 FTE staff. The following 11 States
employ more than 100 people that work on
cleanup activities: California, Florida, Illinois,
1991
1993
1995
1997
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Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Texas, and Washington. Of
the States reporting staffing levels, a total of seven have 51-100 personnel, while 25 have between
10.5 and 50 FTEs. Only six States have 10 or fewer people assigned to their superfund programs.
The total of 3,474 FTE staff positions reported this year represents a decrease of about 3%
from the 3,585 FTE positions reported in 1995. Several States reported sharp decreases in program
staff from 1995: e.g., New Jersey (512, down from 650); Michigan (234, down from 298); and Rhode
Island (20, down from 30). At the same time, a number of States reported considerable increases in
program staff: e.g., Georgia (39, up from 18); South Carolina (45, up from 30); and Arizona (56, up
from 24). In some States, program reorganization may affect the number of positions reported. In
New Hampshire, for example, organizational restructuring resulted in an increase of 20 FTE
positions over the number reported in 1995.
The decrease in total FTE positions also reflects an overall decrease in the number of States
that reported this information. Three States (West Virginia, Puerto Rico, and the District of
Columbia) provided FTE figures in 1995 (a total of 56 positions)1 but did not provide complete FTE
staff information for this survey. At the same time, Wyoming did not provide information in 1995,
but did report eight FTE positions for this survey. In addition, changes in FTE numbers may reflect
changes in a State's ability to identify staff positions that relate specifically to hazardous substance
cleanup activities. This is the case in Kansas, for example, which reported 57 fewer FTE positions
than in 1995, when the State's reporting included staff working on a broader range of activities.
Because cleanup program staff often assume multiple duties, State officials are frequently
unable to indicate precisely the staff time devoted specifically to non-NPL sites. The 14 States
providing this information varied widely in the percentage of total program staff devoted to non-NPL
sites - from 10% in North Dakota to almost 90% in Connecticut. :In the majority of these States,
however, at least half of the total program staff are dedicated to non-NPL cleanup activities.
Finally, 40 States provided information on the number of authorized FTE positions in the
principal cleanup program office. These States reported 2,853 authorized positions, compared with
2,684 actual positions. Among the States that did not report authorized FTE positions were four that
have more than 100 FTE staff; California, Florida, Ohio and Pennsylvania.
Legal Support
In the 50 States that provided FTE attorney information, a total of 206 attorneys work on
waste cleanup issues. The total number of attorneys is five fewer than in 1995, when all 52 States
reported information (including Puerto Rico and the District of Columbia, both of which reported one
FTE attorney position each). In many States, the attorneys assigned to handle State superfund cases
also handle other types of cases, such as Resource Conservation and Recovery Act (RCRA) and
general environmental cases.
The number of FTE attorneys for most States is small. Only seven States reported 10 or more
FTE attorneys providing legal support: Massachusetts (21), New'York (20), New Jersey (18),
Pennsylvania (12), California (12), Ohio (11.7) and Colorado (10). Combined, these States have
more than half the total number of attorneys working on State superfund-type activities.
The State Attorney General's Office (or its equivalent) is the sole source of legal support for
the cleanup program in 24 States, while in 18 States the agency responsible for the hazardous
substance cleanup program itself provides the sole legal support for program. The remaining nine
States rely on a combination of attorneys from both the Attorney General's Office and the
responsible agency. Vermont uses attorneys from its Attorney General's Office and the Department
of Environmental Conservation's Enforcement Division, as well as one attorney from its own
superfund program staff.
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Funding Sources
There are three common sources of funding for the States' hazardous substance cleanup
program staff and administrative costs: State cleanup funds, State general funds and Federal grants.
Federal grants include primarily the Environmental Protection Agency's core Superfund program
grants, site-specific cooperative agreements and multisite cooperative agreements. Some States,
including North Carolina and Minnesota, receive grants from the Departments of Energy or Defense.
Of the 50 States that provided information on funding sources, all but two—Pennsylvania
and Georgia—use Federal monies to fund staff and administrative expenses. No State uses Federal
funds alone, but of the States that receive Federal funding, six report that Federal monies provide
90% or more of funding. On the other hand, three States report that Federal funds comprise 10% or
less of the program's funding for staff and administrative expenses.
State monies for staff and administrative expenses of the cleanup program derive exclusively
from the general fund in eight States and from separate site cleanup funds alone in 16 States. In West
Virginia, State funding comes solely from voluntary cleanup reimbursements, and Oklahoma relies
on solid waste fees. The remaining 24 States reporting this information use a combination of general
fund appropriations, site cleanup fund monies, and a variety of other sources to fund these expenses.
Other sources include cost recovery, taxes, State waste funds, and fees.
E. Funds
•I
A State must be able to pay for its activities in cleaning up sites. A readily available source of
money is, therefore, an essential element of a State's program to clean up sites. Experience has shown
that a fund separated from the operating funds of the environmental agency and continuing from year
to year without the need for annual appropriations or other legislative action allows the agency to
avoid disruptions to cleanups. A fund allows a State to investigate, plan, design and conduct
emergency response and remedial actions at sites where immediate action is required or where RPs
are unavailable, unable, or unwilling to conduct or pay for remedial actions. At least some of these
expenditures can be replaced through cost recovery actions against RPs that initially did not pay for
the cleanup. But money spent at orphan sites, where no RPs can be found, cannot be replenished
through cost recovery and must be replenished from other sources. A State may also incur certain
expenses that it is not authorized to recover from RPs, including some administrative costs.
A fund also allows a State to control the pace of cleanups; if RPs do not agree to conduct the
cleanup, the State will be able to use its own funds to clean up the site without delay. Beyond
recovering its costs, the State may be authorized to seek punitive damages from the RPs that refused
to conduct or pay for the cleanup. For a State to maintain control over the time sites are cleaned up, a
State must have enough money available to pay for cleanup activities when they become necessary.
Money should also be available to pay for responses to emergencies and for unexpected expenses,
such as for activities at sites where anticipated agreements with RPs are not reached. To be most
effective, a fund needs to be large enough to cover these contingencies, including potentially paying
for the entire cost of one or more site cleanups. The amount of money necessary to meet these
contingencies will depend on the number and characteristics of a State's sites, but will also depend on
the risk that RPs and the State will not reach agreement on sites for which the State expects RPs to
pay. A fund of adequate size allows a State to control which sites and risks it responds to and how
and when that response occurs.
A State fund can also be a significant contributor to a State's cleanup enforcement program. If
the State can clean up a site with State funds and promptly recover its costs, then RPs may decide
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that it is in their interests to agree to conduct future cleanups. States that have demonstrated this
ability have been able to reach agreements with RPs. :
The amount of money needed to make such action credible obviously depends on the number
of sites and types and expense of cleanup actions needed in the State. The experience of some States
indicates that completing a remedial action at a single site is likely to cost more than one million
dollars. Thus, for many States, particularly those with multiple sites needing permanent remedies, a
fund of more than one million dollars would be needed to preserve the option for conducting a State-
funded remedial action at a site while maintaining the ability to respond to emergencies. Some States
have considerably less than a million dollars available, which restricts their response capability.
Typically they have only been able to pay for emergency responses or relatively simple cleanups.
Fifty (50) States (including Puerto Rico) have established cleanup funds or provided a
mechanism for the State agency to pay for one or more types of cleanup activities at non-NPL sites.
Only Nebraska and the District of Columbia have no authorized cleanup funds. This has not changed
since 1991. Table V-7 lists the States' funds, their balances as of the end of the State's fiscal year
(June 30, 1997 for most States), the amount of money added to the funds during the fiscal year, the
amount of money spent from the funds during the fiscal year, and the amount of money obligated for
future work. Not all State cleanup funds or funding mechanisms are listed in Table V-7. Funding
instruments that are used solely as repositories for Federal monies or are available only for cleanup
of leaking underground storage tanks have been excluded. Also excluded are funds that may be used
solely to clean up spills of oil or petroleum products.
Thirty-three (33) States have more than one fund for cleaning up sites contaminated by
hazardous substances. This is 12 States more than had multiple funds in 1995 and more than twice
the number that had multiple funds in 1989 (15). States have morfe than one fund for a variety of
reasons. A State may have multiple funds to differentiate sources or uses of the funds. One fund may
receive all the proceeds from a hazardous waste fee, while another is the repository for other
authorized types of funding, typically appropriations, penalties, and cost recoveries. For example,
Arkansas' Hazardous Substances Remedial Action Trust Fund receives most of its funding from fees
on hazardous waste generators, while its Emergency Response Fund is funded by civil penalties (the
ERF is capped at $150K and excess penalties are deposited in the Remedial Action Trust Fund).
When a State authorizes bonds to be issued to pay for cleanups, it typically creates a separate fund
whose sole source of money is bonds. New Jersey, for example, now has four separate bond funds
among its seven funds. •
States also may have multiple funds because they separate the uses to which their funds may
be put. Thus Ohio has a Hazardous Waste Facility Management Fund that may be used for
emergency response, administrative costs, and the State's share of NPL remedial actions (CERCLA
match), in addition to its primary RCRA-related purposes. Ohio also has a Hazardous Waste Cleanup
Fund that may be used for other non-NPL related cleanup activities, and a Voluntary Action Program
Administration Fund to be used as its name indicates. ;
Most of the increase in the number of States with multiple cleanup funds is due to States that
have created funds dedicated to voluntary cleanup programs or other specific types of cleanups.
Since 1995, seven States, Hawaii, Maryland, Mississippi, Missouri, Ohio, Utah, and Virginia, have
created funds specifically devoted to their voluntary cleanup programs. Similarly, Hawaii, Maryland,
and New York have created new funds focused on brownfields programs. A few States also have
established special funds dedicated to cleaning up dry cleaning sites. Kansas had such a fund in 1995
and Oregon and Tennessee have created such funds since then. In 1997, Alaska and Arizona reported
separate accounts within funds that were reported as a single fund in prior years.
The States vary considerably in their funding sources and authorized uses of funds. Sources
of funding for State cleanup programs are listed in Table V-9. These funding sources include
appropriations (A in the Table), bonds (B), waste fees (WE), taxes (TX), interest (I), penalties (PE),
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transfers from other State funds (TR), cost recovery (CR), private funds (PF), user fees (for voluntary
cleanup programs)(UF), and other (O). The activities for which a State is authorized to use a fund are
listed in Table V-10. Authorized uses include: site investigation (SI); emergency response (ER);
removals (RM); CERCLA match (CM); studies and design (SD); remedial actions (RA); operations
and maintenance (OM); grants to local governments (GLG); natural resource restoration (NRR);
program administration (PA); victim compensation (VC); and other (O).
A key issue for State and Federal policymakers is the extent of the States' capabilities to clean
up non-NPL (and potentially NPL, or NPL-caliber) sites. The States have identified approximately
24,000 sites as needing some type of cleanup. Clearly, the States will rely on RPs to perform or pay
for the cleanups of most of these sites, yet just as surely the risks at some sites will be addressed only
if the State conducts and finances the cleanup itself. A State's capability to perform cleanups is
determined by many factors, including staffing, expertise, experience, funding, and expenses. This
section discusses the financial measures of State capabilities.
I
Fund Balances and Additions
J I
I
Analysis of fund balances at the end of a State's fiscal year and the amount of money added
to the fund during the past fiscal year is intended to provide a sense of the State's capability to pay for
cleanups in the near future. The fund balance is a measure of the current availability of funds for new
work. This is supplemented by fund additions, which serve as a measure of the State's immediate past
capability to sustain the fund and is intended to provide a sense of the State's potential to maintain
and increase the fund in the future. Both measures are flawed and, even considered together, do not
necessarily provide a complete or accurate sense of State financial capabilities to pay for future
cleanups. This is particularly true if comparisons are made among the States. Some of the issues are:
3
1. Fiscal year-end balances could not be obtained for all funds or all States - Idaho,
Puerto Rico, and Wyoming provided no fund balance information at all, Maryland
did not provide a balance for two of its three funds, and Indiana, Missouri, and
Montana each provided no balance for one of their funds.
2, Fund balances may be artificially low because of infrequent collection of fees or
taxes, timing of appropriations (some States use biennial budget and appropriation
cycles), or a program's need to exhaust its fund at the end of the fiscal year because
carryover is not allowed.
3. Some States continue to rely on site-specific appropriations for remedial actions,
despite the existence of a cleanup fund. In that case the State's ability to pay for
cleanups may be less predictable.
j
4. A portion of a State's fund balance may be obligated for future work on sites in the
system and thus all of the fund balance will not be available for work on new sites.
ELI attempted to mitigate this difficulty by asking States how much money was
obligated for future work. This information is included in Tables V-7 and V-8.
3
With these caveats, the total of the balances, including bond authorizations, for all the States'
funds is $1.41B, down slightly (3.5%) from $1.46B in 1995, which was 4% less than the $1.52B in
1993. Fund balances have been declining since 1990.
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Chart III-3: Balance and Percentage
Change Including Bonds
As has been the case in past years, much of the aggregate fund balance is attributable to large
sums of bonds authorized in just a few States. New York's bonding authority of $601M constitutes
42.5% of the total balance for all funds in all States at the end of FY97, and the total of S799.7M in
bonds available to Massachusetts, New Jersey and New York is 56.6% of the aggregate balance for
all States. In 1995, the bonding authority available in three States (Michigan, New Jersey, and New
York) totaled $845.6M, which was 58% of the $1.46B total fund balance available to the States at the
end of FY95.
In past years the principal reason for the decline in State balances, including bonds, was
declining amounts of bonding authority available in the few States that have authorized large
amounts of bonds (see Charts DI-3 and
in-4 for the aggregate State fund
balances including and excluding bond
authorizations since 1989). In contrast to
past years, there was relatively little
change from 1995 to 1997 in aggregate
bond funds available to the States. In
1997, nine States reported bond
authorizations of $853.4M. This .
compares with bond authorizations
totaling $873.6M in 1995, $967.2M in
1993, $1614.8Min 1991, $1729.2Min
1990, and $1981M in 1989. Thus, bond
authorizations have been declining since
the first 50-State Superfund Study in
1989. Most of this decline is due to the fact that the States have been issuing the bonds and spending
the proceeds on cleanups, as was intended. New York, New Jersey, and Michigan have each issued
hundreds of millions of dollars of bonds and spent the money on cleanups since 1989. With one
exception, all of the States that have had
Chart III-4: Balance and Percentage
Change Excluding Bonds
$2,500,000,000
$2,000,000,000
$1,500,000,000
$1,000,000,000
$2396M$2428-4M
r "'
' ff"f
L4%.
*•
-
$2218.5M
^
-
$1523.4M
S1464.9M
$14H 2M
> %^ :
1989 1990 1991 1993 1995 1997
$699.4M
bond authorizations in the past,
including Connecticut, Maine,
Maryland, Massachusetts, Michigan,
Montana, New Hampshire, New Jersey,
Oregon, Rhode Island, and Wisconsin,
appear to have spent virtually all of their
initial bond authorizations. New York is
the exception in that it has $401M in
bond authority remaining from its 1986
Environmental Quality Bond Act
authorization of $1.2B. Yet, New York
is also the State that has spent the most,
$800M,. from its bond fund.
Although New York's bond fund
was not depleted by the end of FY97, as had been predicted by its staff in 1995, in 1996 the
legislature authorized $200M in new bonds. Similarly, the legislatures in Massachusetts and New
Jersey also authorized substantial amounts of bonds in 1996. Other than Maine, these have been the
only grants of bonding authority since 1991. These new authorizations of bonds offset large
decreases in existing bond funds in New York, New Jersey, and Michigan, resulting in the aggregate
amount of bonds available to all States remaining about the same as in 1995.
$1,000,000,000
$750,000,000
$500,000,000
$250,000,000
"$41 5M
;*SLS%
i
*
$603 .7M
-13.7%
S556.2M
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A trend away from very small fund balances was reversed in 1997. The number of States
with balances less than $1M increased from six in 1995 to ten in 1997 (excluding the District of
Columbia and Nebraska, which have no fund at all)(this year three States, Idaho, Puerto Rico, and
Wyoming, provided no fund information). Missouri reported having a deficit of $1.3M, the first time
a State has reported a negative fund balance. The number of States with balances below $1M had
been declining, from thirteen in 1991 to nine in 1993 to six in 1995. Fourteen (14) States had
balances from $1M up to $5M (down from 21 in 1995,15 in 1993 and 14 in 1991), 6 States had
balances from $5M to $10M (compared to 8 in 1995,11 in 1993, and 5 in 1991), 11 States had
balances from $10M to $50M (compared to eight in 1995, 12 in 1993 and 14 in 1991), and 6 States
had balances of $50M or more (compared to seven in 1995, three in 1993 and four in 1991).
The total amount of money in fund balances, however, continues to be concentrated in a few
States. The six States with fund balances (including bonds) exceeding $50M had $1079.1M, which
was 76.4% of the aggregate balance of State funds. This is comparable to the share held by the same
category in prior years: $1178.1M or 80.4% of the total in seven States in 1995, $1127.4M (74% of
total balance) in three States in 1993, and 84% in 1991. Moreover, the 17 States with fund balances
of at least $10M had $1331.6M, or 94.2% of the aggregate for all States. This is similar to the 93% of
the total held by 15 States with balances greater than $10M in 1995, and little changed from prior
years: 93% in 1993, 96% in 1991, 97% in 1990, and 96% in 1989.
Contributions to State funds have varied widely since the first 50-State Study in 1989. In
FY97,45 States reported adding $538.3M to their funds (of 50 with funds), compared to 46 States
that reported adding $444.6M during fiscal year 1995. The FY97 additions are, however, only
somewhat more than half of the S957.3M added to the cleanup funds in 46 States during fiscal year
1993. Among the States that did not provide information about fund additions California was the
most likely to have added a substantial amount, based on past years. In 1993, California added
$107M to its Hazardous Waste Control Account and in 1991 it added $50M to that account.
Much of the difference between the 1993 additions and the amounts added in 1995 and 1997
can be attributed to New Jersey. In 1997, New Jersey added $62M to its funds, approximately the
same amount that it added in 1995 ($64.7M), but less than 20% of the $350.1M! added in 1993. The
variability in New Jersey's additions is largely attributable to changes in the amounts being added to
its Bond Funds, which received no infusions of money in 1997 and $8.5M in 1995, but S239.5M in
1993.
Other States have also experienced substantial changes in the amounts added to their funds
during different years. Texas added $20M to its funds in 1991, increased that to $112.3M in 1993,
more than halved that to $47.4M in 1995, and further decreased its additions to $35.4M in 1997.
Similarly, Florida almost doubled its additions from $13.7M in 1991 to $25M in 1993, but then
added only $1.5M in 1995 and nothing in 1997. California's additions went from $50M in 1991 to
S107M in 1993, but then provided no information for 1995 or 1997. On the other hand,
Pennsylvania's additions decreased from $89M in 1991 to $45.6M in 1993, then rose to $51M in
1995 and increased substantially in 1997 to $94.7M.
As with fund balances, only a few States account for most of the amounts added to State
funds, with three adding more than $50M in 1997, compared with four in 1995, five in 1993 and one
in 1991. The additions in these three States (New Jersey, New York, and Pennsylvania) totaled
S239.4M, which was 43.7% of the total added to State funds by all States. In 1995, the four States in
this category (Michigan, plus the same three as in 1997) added a total of $229.3M to their funds,
which constituted 51.6% of the total added by all States. In addition, eight States reported additions
to their funds in the range from $10M to $50M in 1997, two more than were in this category in 1995.
At the other end of the scale, 18 States reported adding less than $1M to their funds in 1995,
continuing an upward trend in this category from 14 in 1995, 10 in 1993 and nine in 1991. Four of
these added no money at all to their funds during FY97.
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As might be expected, the States that add the largest amounts to their funds also tend to be
the ones with the largest balances, though there are some notable exceptions. Seven States (Alaska,
New Jersey, New York, Ohio, Pennsylvania, Texas, and Washington) are in the top ten of both
additions to funds and fund balances. The exceptions include Massachusetts, which was one of the
four States that added no money to its fund in 1997, but which had the fourth largest balance, at
$86.3M. This is explained by the fact that Massachusetts receives all of its funding from bonds,
which the legislature authorizes in relatively large amounts that the agency then uses over several
years. Since new bonds were authorized in 1996, no further additions would be expected in 1997.
Georgia illustrates the other type of exception, States with small fund balances that have large
amounts added to them during the fiscal year. Georgia's fund balance at the end of FY97 was $1.1M,
but $19.1M was added to its fund during the year. The fact that Georgia spent $17.6M in 1997 and
has obligated another $13.8M seems to explain why it has such a low balance compared to the
amount it added to its fund. Georgia is essentially funding its activities on an annual basis.
Fund Expenditures
The amount of money spent by States on cleanups in the past year is another indicator of the
financial capabilities of States to clean up sites contaminated with hazardous substances. State
expenditures reflect the State's cleanup capability for the past year and may be a good indicator of
future capabilities if the State is maintaining a stable cleanup program. Table V-8 reports States'
expenditures and obligations from FY97.
States were asked to separate expenditures, i.e., money actually spent during the year, from
obligations, i.e., money committed to a specific project or task and thus not available for spending,
but not yet spent. States also were asked to categorize their expenditures and obligations by whether
they were for NPL or non-NPL sites. ;
Most States were able to separate their expenditures from the amounts they obligated,
although some States could provide no information for one or more of the categories of information.
North Dakota, Puerto Rico, South Dakota, and Wyoming provided no information on expenditures or
obligations. Arizona, Hawaii, Idaho, Kansas, Maine, Maryland, and Mississippi provided no
information about obligations, but supplied information about expenditures, while Connecticut
provided no information about expenditures, but supplied information about obligations. Most States
also were able to separate the amounts they spent or obligated on non-NPL sites from the amounts
committed to NPL sites. Unfortunately, the information provided for these sub-categories is less
complete than for total expenditures. A number of States that each spent tens of millions of dollars on
cleanups did not disaggregate the amounts spent on non-NPL and NPL sites. These included Alaska
(two funds that together spent $20M), Florida (one fund that spent $22M), New York (two funds that
together spent $102M), and Texas (one fund that spent $41M). Nevertheless, it is possible to use the
1995 and 1997 spending data to explore the States' capabilities to clean up non-NPL sites.
In 1997, 44 States reported spending a total of $565.1M and 39 States reported obligating
$448M to be spent in the future, with some States reporting one figure but not the other. Thirty-one
(31) States also reported spending $136.5M on non-NPL sites while 30 States reported spending
$3 2M on NPL sites in 1997, though 14 of the 3 0 spent $0.
By comparison, in 1995, 44 States reported spending a total of $386.1M and 38 States
reported obligating $363.4M. In addition, 37 States reported expenditures of $203M on non-NPL
sites and 32 States reported spending $19.6M on NPL sites (12 States spent $0).
Combined, States reported spending $179M more in 1997 than they did in 1995, an increase
of 46.4%. Of the 40 States reporting expenditures in both 1995 and 1997, 23 States reported
increases, while 17 States reported decreases. Moreover, six States increased expenditures by more
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than $10M; Florida ($22.2M in 1997 compared to $3.2M in 1995), Georgia ($17.6M in 1997
compared to $2.5M in 1995), New Jersey ($81.3M in 1997 compared to $37.6M in 1995), New York
(S158.8M in 1997 compared to S129.4M in 1995), Pennsylvania ($37.4M in 1997 compared to $16M
in 1995), and Texas ($41.2M in 1997 compared to $28.6 in 1995). Only two States, California
(S228K in 1997 compared to $14.4M in 1995) and Washington ($42.7M in 1997 compared to
$52.9M in 1995), lowered spending by more than $10M.
The aggregate amount of total obligations increased $84.6M (23.3%) from 1995 to 1997. Of
the 31 States reporting obligations in both 1995 and 1997, 18 States reported increases while 11
States reported decreases (two States reported $0 in obligations in both years). Five (5) States noted
increases in obligations of more than $10M; Connecticut ($31.8M in 1997 compared to $18M in
1995), New Jersey ($98M in 1997 compared to $62.5M in 1995), Pennsylvania ($43.3M in 1997
compared to $23M in 1995), South Carolina ($20.8M in 1997 compared to $700K in 1995), and
Texas ($27M in 1997 compared to $0 in 1995). Conversely, Massachusetts ($0 in 1997 compared to
$10.5 in 1995), Michigan ($12.7M in 1997
compared to $50.5M in 1995), New York
(S95.3M in 1997 compared to $123.5M in
1995), and Washington ($7.9M in 1997
compared to $18.1M in 1995) reported
decreases in obligations of more than $10M.
As usual, most States (27 of 44 States
reporting) spent less than $5M on all sites in
1997, with 17 States spending less than $1M. At
the high end, only New Jersey and New York
spent more than $50M, with New York
spending over $100M.
Chart III-5: 1997 State Expenditures
16-
14
12-
10
8-
6-
4-
2-
0
1-5
5-10 10-50
>50
Chart 111-6: 1997 State Obligations
1-5
5-10 10-50
>50
Obligations (in millions of dollars)
Expenditures (in millions of dollars)
Similarly, most States (21 of 39 States
reporting) obligated less than $5M on all sites in
1997, with 16 States obligating less than $1M.
Again, only New Jersey and New York obligated
more than $50M.
In contrast to the substantial increase in
overall spending, the reported spending on non-
NPL sites dropped by 32.7% from $203M in 1995
to $136.5M in 1997. This change may be due to the
fact that New York reported $79M in non-NPL
spending in 1995, but did not provide a breakdown
for NPL versus non-NPL spending in 1997.
Beyond that, Georgia, Pennsylvania, and Washington reported significant increases in non-NPL
spending, while California and New Jersey reported significant reductions.
As is the case with fund balances, the majority of the total spent by the 31 States reporting on
non-NPL sites is accounted for by a few States. Four States account for 68.7% ($93.9M) of the total
reported spent by the States on non-NPL sites in 1997; Washington spent $39M on non-NPL sites,
Pennsylvania spent $32.4M, Georgia spent $11.4M, and Oregon spent $11.1M. At the other end of
the scale, 15 States reported spending less than $1M, and two States, California and Utah, spent less
than $1OOK, on non-NPL sites.
Unlike expenditures, reported obligations on non-NPL sites increased 65.8% from $81.4M in
1995 to $135M in 1997. Connecticut, Pennsylvania, and South Carolina reported significant increase
in non-NPL obligations, while only New Jersey and Wisconsin reported even moderate reductions.
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The combination of fund balances, additions to funds, and expenditures can provide the most
accurate indicator of the capability and stability of a State cleanup program. For example,
Pennsylvania continues to add more to its Hazardous Sites Cleanup Fund ($77M) than the total of its
expenditures and obligations ($75M) and its balance continues to grow (from $21.8M in 1991 to
$60.5M in 1993 to $75M in 1995 to $105M in 1997) indicating that the State is expanding its
capacity, presumably in anticipation of paying for more expensive remedial actions. Other States
whose additions continue to exceed their expenditures and obligations included Arkansas ($63 7K
added in 1997, expenditures and obligations of $201K, balance rose from $7.5M in 1995 to $8.8M in
1997), Delaware ($5.2M added in 1997, expenditures and obligations of $3M, balance rose from
$3.7M in 1995 to $8.4M in 1997), and Virginia ($1.1M added in 1997, expenditures and obligations
of $625K, balance rose from $2.5M in 1995 to $3.5M in 1997).
When expenditures exceed additions by a significant amount, the size of the fund balance is
critical to maintaining the State's ability to continue the same level of activity. Several States fund
their programs using relatively large amounts in authorized bonds. Massachusetts, for example,
authorized an $89M bond in the late 1980s to fund its program. Over the years, the State added no
money to the bond fund so the balance declined steadily to $2.5M in 1995. A $100M bond
reauthorization in 1996 allowed the State to continue its relatively steady spending pace ($10M in
1993 compared to $9.5M in 1995 and $7.1M in 1997). Similarly, New Jersey, with a $60.2M
decline in its bond fund from 1995 to 1997 (balances of $86.6M and $26.4M respectively),
authorized new bonds and was able to continue spending and obligating at a notable level ($64.9M in
1995 and $42.1M in 1997). Interestingly though, both Massachusetts and New Jersey increased the
ratio of obligations to expenditures as
their bond funds diminished. California
Chart III-7: Obligations versus Expenditures
as Balances in Bond Funds Decrease
$120,000,000-
$100,000,000-
$80,000,000-
$60,000,000-
$40,000,000-
$20,000,000
1993
1995 1997
Massachusetts
1993 1995
New Jersey
D Fund Balance gg Expenditures • Obligations
1997
has not authorized any additional
bonds though the balance in its bond
fund continues to decline (from
$12.9M balance in 1993, to $3.4M in
1995, and then $2.4M in 1997). There
has been a corresponding decline in
expenditures and obligations (not
reported in 1993, but $3M in 1995
compared to $228K in 1997).
This raises the question as to
whether States that use bond funds
operate on a boom-and-bust cycle,
whereby they decrease or delay
activities as their fund balances
dimmish, and then increase expenditures when the new monies arrive. Looking across the bond fund
data from 1993 on, it appears as though some States may indeed operate this way, while others seem
to avoid the cycle. Still, these bond funds have been in existence for only ten years or so, and ELI's
quantitative data only dates back to 1993. It is difficult, therefore, to draw any firm conclusions about
the cyclical nature of bond funds.
Sources of Funds
Table V-9 indicates the sources of funding for State funds and classifies each source as a
significant (contributing more than 20% of the Fund's revenues) or minor source. Ten specific types
of sources are listed, including appropriations from the legislature, bonds, fees charged for hazardous
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waste or other activities, taxes, interest on fund or other State investments, penalties or fines,
transfers from other funds or accounts, cost recovery, private funds, and user fees (for voluntary
cleanup programs), plus a final category for other sources. States did not prefer one method of
funding over the others in 1997. In fact, the funds were broadly and evenly distributed across the 10
specific sources, with 7 of the 10 sources providing significant (>20%) funding for more than 10
funds. Waste fees were a significant source for 20 funds, taxes were a significant source for 19 funds,
while cost recovery and appropriations were each a significant source for 17 funds. Bonds provided
significant funding for 14 funds and penalties and user fees were each a significant source for 11
funds.
One hundred and five (105) funds exist in the 50 States that have funds for cleaning up sites
contaminated by hazardous substances. This does not include funds that receive only Federal monies
or funds restricted solely to cleaning up contamination from leaking underground storage tanks or
funds limited solely to cleaning up contamination from petroleum or its products.
Fees on the generation, transport, treatment, or disposal of hazardous waste, hazardous
substances, or solid waste (in Kansas, fees on water use are deposited in the Water Plan Fund, which
is used for cleanups) are an important source of revenue for many State cleanup funds. Twenty (20)
funds in 19 States rely on such fees to contribute more than 20% of the revenues for their funds. This
compares to 24 funds in 23 States having fees as a significant contributor to their funds in 1995, and
26 funds in 25 States in 1993. In addition, waste fees provide minor support, less than 20% of total
additions to the fund, to funds in four States.
Because hazardous waste fees are a substantial source of funding for State cleanups, it is
important to note that State legislatures often attach limits or conditions on the collection and use of
such fees. Fund administrators in South Carolina must report to the legislature on the need for
continuing fee collection once the fund balance reaches $7.5M. Iowa and Kentucky both suspend fee
collection if the fund balance exceeds $6M and resume collection if the fund balance falls below
$3M. West Virginia does the same, but the cut-off fund balance is much lower, at $1.5M, and the
range is narrower, since fee collection resumes when the balance drops to $1M. Illinois, on the other
hand, suspends fee collection when its fund reaches $10M and resumes fee collection when it drops
to $3M. The Tennessee legislature imposed even more restrictions on collection of its fees, requiring
annual adjustments to maintain a fund balance of $3-5M in unobligated funds and limiting the
amount of fees collected annually to $1M (estimated). Moreover, the fees are abrogated if the
legislature fails to appropriate matching funds. Beyond these administrative limits imposed on fees,
these revenues may also fluctuate due to changes in waste handling.
In addition to providing funds for cleanup, fees on hazardous waste activities are often
intended to provide incentives to generators to reduce their generation of hazardous waste and to
encourage recycling efforts. For example, Illinois has regularly raised its fees on the transport and
disposal of hazardous waste at least in part to discourage the generation of hazardous waste.
Kentucky bases its fees on the level of treatment required for hazardous waste. A sliding scale is also
applied to solid waste disposal in Ohio, where fees provide up to 80% of total cleanup funds.
Tennessee also requires the board that sets the hazardous waste fee structure to set the fees at levels
(within a statutory range) that encourage recycling and discourage land disposal.
Taxes are a significant source of revenue for 19 funds in 14 States, compared to 17 funds in
15 States in 1995 and 11 funds in 10 States in 1993. Taxes are also a minor source of funding for one
fund. Several States impose a tax on hazardous wastes or substances that is similar in nature to the
fees charged for hazardous waste activities and, in fact, there may be no practical distinction at all.
Restrictions similar to the ones imposed on fees are sometimes placed on waste taxes. For example,
Florida's tax on pollutants is suspended if the Water Quality Assurance Trust Fund balance exceeds
$12M and is reinstated if the balance falls below $5M. Taxes have the potential for raising
substantial amounts of money, but may be politically difficult to impose or to raise if revenues do not
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meet the need. Taxes on hazardous substances are the primary source of revenue for New Jersey's
Spill Compensation Fund (transfer tax) and for New York's Hazardous Waste Remedial Fund. A
corporate business tax is the sole source for another of New Jersey's many funds.
Bonds provide significant funding for 14 funds in nine States, a reduction from 16 funds in
12 States in 1995. More significant than the number of States or funds that rely on bonds for a
substantial percentage of their revenues is that bonds can provide much larger amounts of money
than the other methods of funding. This is likely why few States, three in 1997, report that bonds are
minor sources for their funds. In 1986, the New York legislature authorized the State to sell $1.2B in
bonds to pay for cleaning up contaminated sites, $100M of which was later redirected to cleaning up
nonhazardous waste landfills. In 1996, New York authorized an additional $200M in bonds to be
used for cleaning up brownfields sites. Although New York's bonding authority is by far the largest,
a number of other States also receive large amounts from the sale of bonds. New Jersey currently has
four bond funds (one dating back to 1981) that contain $112.4M. Over the years New Jersey has
generated hundreds of millions of dollars for its cleanup program from the sale of bonds, adding
$239.5M to its Bond Fund in 1993, for example.
The drawback of bonds is that they require legislative authorization, which can be difficult to
obtain. Thus, some States, like New Hampshire, have exhausted their authority to issue bonds and
must look for other sources of revenue for the future. Maine, Massachusetts, New Jersey and New
York each created new bonding authority in 1996, but these were the first new authorizations by
State legislatures since 1991. :
Appropriations are also a primary source of funding for State cleanup funds. They provide
more than 20% of the funds for 17 funds in 14 States, compared to 13 funds in 13 States in 1995, and
21 funds in 17 States in 1993. Appropriations are also a minor source of funding in an additional
eight States, which is unchanged since 1993. Some States appropriate money to their cleanup funds
on a regular basis, which allows the State agency flexibility in handling cleanups. In other States,
such as Kansas, appropriations for State-funded cleanups must be requested on a site-specific basis.
Appropriations are also, naturally, subject to the vagaries of State revenues and politics, reducing
their reliability as a continuing source of funds. Even for States where appropriations provide a
significant proportion (>20%) of the public funding for cleanups, the high percentage typically
represents a relatively small amount of money because the fund is small or the additions to it are
small. Notable exceptions include Michigan, where the legislature appropriated $10M for the
General Fund and where appropriations were the primary source of $14.6M added to the Cleanup
and Redevelopment Fund in 1997. In most States where appropriations were a significant percentage
of additions they provided less than $1M in additions to the fund during FY97.
Penalties and fines provide more than 20% of the revenue for 11 funds in 10 States, a
reduction from 16 funds in 14 States in 1995. Many of the funds for which penalties are a significant
source are, however, quite small. Penalties, in fact, rarely provide revenues of the magnitude needed
to conduct remedial actions (i. e., on the order of $1M). Penalties, therefore, are used by many States
as a supplementary rather than a primary source of funding. Thus they are minor (< 20%) sources of
funding for an additional 21 Funds.
Uses of Funds
Table V-10 lists the activities on which States are authorized to spend fund monies. These
activities are grouped into twelve categories: site investigation (SI), emergency response (ER),
removals (RM), studies and design (SD), remedial actions (RA), operations and maintenance
(O&M), natural resource restoration (NRR), CERCLA matching cost share for NPL sites (CM),
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program administration (PA), grants to local governments (GLG), victim compensation (VC), and
other (O).
Emergency response and removals continue to be the most widely authorized uses of States'
funds. It is not surprising that virtually every State is authorized to pay for these activities since they
are among the least expensive and most cost effective in reducing risks at a site. Among the States
that have funds, only Colorado and Idaho are not authorized to pay for emergency responses out of
any fund, and only Idaho, Puerto Rico and Wyoming may not pay for removals.
The vast majority of States also may use their Funds to pay for remedial actions, or more
permanent cleanups. Only Colorado, Mississippi, New Mexico, Oklahoma, Puerto Rico, Utah, West
Virginia and Wyoming, of the States with funds, may not use the money to pay for remedial actions.
Most States also may use their Funds to pay for other activities that support the primary
functions of emergency response and short- and long-term cleanup. These include site investigation
(46 States, 3 more than 1995 and 1993), studies and design (44 States, 2 more than 1995 and 1993),
operations and maintenance (44 States, 3 more than 1995 and 5 more than 1993), and program
administration (44 States, 5 more than 1995 and 7 more than 1993). Most States (44, 1 less than
1995, and 2 less than 1993) also are authorized to use their Funds to pay the required State share of
remedial actions at NPL sites (CERCLA match).
Other uses are far less common. Twenty-one (21) States may use at least one of their Funds
to pay for restoration of natural resources damaged by releases of hazardous substances, six more
States than reported authority to do so in 1995. This does not mean that other States are not
authorized to restore natural resources. A number of States do so under other programs, or by using
authority under CERCLA. A similar number of States (18) are allowed to give grants to local
governments from at least one of their funds. Only eight States, Connecticut, Minnesota, New
Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont, and Virginia, reported being
authorized to use their Funds to compensate victims harmed by releases of hazardous substances.
Twenty-one States, however, have statutory authority to compensate victims (See Table V-2), often
in their general environmental law. Apparently, a number of States prefer to pay the compensation
from funds other than those intended to pay for cleanups.
The primary purpose of some State's funds is not cleanup of sites contaminated by hazardous
substances. Ohio's Hazardous Waste Facility Management Fund, for example, is primarily used to
pay for the agency's hazardous waste management activities, including responding to emergencies
involving hazardous wastes. Other funds are extremely limited in their uses at contaminated sites.
Colorado's Hazardous Substances Response Fund is primarily intended for CERCLA match, with
only 5% allowed to be spent on program administration and grants to local governments. Other
States also have funds intended primarily for CERCLA match, but they generally have other funds
that may be used for a wider variety of activities on non-NPL sites. Colorado's only other fund,
however, is the Natural Resource Damage Recovery Fund, which may be used only for restoration of
natural resources.
Pennsylvania's Hazardous Sites Cleanup Fund is used for a broad range of activities that go
beyond the scope of a typical site cleanup program. The Fund may be used to encourage recycling
activities through a grant program for which $2M has been set aside. A small loan fund has been
established to facilitate private party cleanups, and the State may also provide loans or grants as
inducements and compensation to municipalities where hazardous waste facilities will be located.
Oregon has established a more extensive loan program for RPs who need financing in order to
undertake cleanup activities. The interest and other terms of the loan are negotiated by the RPs and
the Department of Environmental Quality. Similarly, Washington's State Toxics Control Account
funds a number of activities in addition to cleanup of contaminated sites, including hazardous and
solid waste planning, management, regulation, enforcement, technical assistance, and public
education.
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Some States with funds that may be used for cleanup activities are limited in practice by low
funding levels. North Dakota cannot pay for substantial cleanups because the year end balance in its
fund has been consistently under $200K ($160K at the end of FY97) and additions to it in past years
were less than $100K (North Dakota provided no information about additions in 1997). Such small
amounts of money restrict a State agency to small-scale actions, such as emergency removals of
drums.
A few States, on the other hand, spent very little on cleaning up non-NPL sites even though
they had money available. Arkansas, for example, spent $201K from funds with a total balance of
$8.8M, and to which more than $600K was added during the fiscal year. Although South Carolina
spent only $630K from funds with a total balance over $25M, it obligated itself to spend more than
$20M in the future.
Special Conditions on Fund Use
Restrictions and preconditions on fund use are primarily of two types: those that statutorily
require the State to exhaust every funding alternative, whether Federal or private party, before
drawing upon State cleanup monies, and those that require the State cleanup agency to obtain
specific authorization before undertaking any response action. In Alabama, sites receiving funds
must not be on the NPL at the time activity starts; and in several other States, State funds may be
used only where Federal funds are not available or sufficient. Eighteen (18) States require that an
attempt be made to obtain responsible party participation in site cleanup before State funds are used;
many States waive this restriction in the presence of an imminent threat to public health or the
environment. Virtually all States pursue RP participation first as a matter of practice and policy.
Although it appears that only a relatively small number of States are required to seek alternative
funding sources before using State monies, it is probably safe to assume that many more do so as a
matter of policy.
Six States require that the State agency responsible for cleanup obtain prior approval from
some administrative authority before undertaking one or more types of response or remedial action at
hazardous waste sites. All expenditures must be approved by the Governor in New Hampshire, the
Pollution Control Board in Minnesota, the Environmental Quality Council in Wyoming, the Board of
Public Works in Maryland, and the agency's Commissioner in Indiana. Arkansas requires a
commission to approve expenditures over $3OK.
In six States, the agency must obtain prior legislative approval for some types of
expenditures. Washington requires any expenditure from its State or Local Toxic Control Account to
be appropriated by statute. Oklahoma requires a site-specific appropriation whenever site costs are
expected to exceed $1M; Illinois must get a similar appropriation if site expenditures will exceed
$1M for a single incident. According to Illinois program officials, this cap has not affected the
program's effectiveness. In Vermont, the legislature or its joint fiscal committee must approve all
nonemergency expenditures greater than $50K. Similarly, Delaware's joint fiscal committee must
approve any expenditures that would exceed 15% of the fund balance. Finally, Nevada's Interim
Finance Committee must approve any studies not already budgeted.
California is the only State that restricts fund use based on the origin of contaminants-
monies from the State's primary cleanup vehicle, the Hazardous Substance Account, cannot be used
for removals or remedial action if a significant portion of hazardous substances originated outside the
State.
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F. Cleanup Policies
Cleanup policies and criteria are used to establish cleanup goals and to determine the level of
environmental and health risk reductions to be achieved by remedial action. As the stringency and
protectiveness of cleanup goals increases, the costs of cleanup usually also increase. A larger
proportion of State superfund program funds likely will be needed to meet strict remediation goals
when enforcement efforts fail or there are no RPs.
Determining the appropriate and feasible level of cleanup for hazardous sites involves
technical, administrative, and economic considerations that are necessarily evaluated on a site-by-site
basis. The States vary considerably in the extensiveness and formality of procedures used to set
cleanup standards. Nearly all of the States employ Federal guidelines and standards as part of the
process of cleanup determination. Those States with the most active cleanup programs have adopted
procedures for determining cleanup levels using a wide array of cleanup criteria. These procedures
generally involve the application of health-based risk assessment and an evaluation of cost-
effectiveness and land use factors on a case-by-case basis.
In recent years, land use has become a more significant factor in determining cleanup
standards. In general, cleanup standards are established after deciding how a particular site will be
used after the cleanup is completed. Furthermore, exposure pathways are considered based on
expected land use. Thus, if a site will be used for an industrial or commercial facility—where
children will not be exposed to contaminated soils, or groundwater will not be used for drinking—the
cleanup standards may be set at existing levels. In such cases, contaminated groundwater or soils
may be left in place because the planned land use of the site will reduce the risks associated with
human exposure to those contaminants.
Since 1995, many States have added land use as a consideration in the cleanup process. This
year's study indicates that a majority of States consider future site specific land use assumptions and
make these assumptions by considering a range of factors. In addition, most States now employ
institutional controls to ensure that property owners maintain the specified land use in the future.
Table V-l 1 lists a number of criteria that are used by States to determine cleanup levels at
hazardous sites. These criteria include: risk assessment for carcinogens and noncarcinogens,
background levels, water quality criteria, maximum contaminant levels (MCLs) or maximum
contaminant level goals (MCLGs), groundwater standards, soil standards, and land-use based criteria.
A State may use different criteria at different sites, as appropriate.
A total of 47 States employ health-based risk assessment for both carcinogens and
noncarcinogens. Forty-four (44) States report the use of background levels to determine cleanup
levels. Forty-seven (47) States report the application of water quality criteria, while 48 apply MCLs
or MCLGs. Thirty-nine (39) States employ groundwater standards, 34 employ soil standards, and 41
employ land-use based criteria.
The information provided by States indicates the further maturing of State cleanup programs.
In all, 17 States report that, since 1995, they have broadened the criteria they consider when
establishing cleanup levels. Most notably, seven States report the introduction of groundwater
standards to their cleanup policies, while five States report the adoption of soil standards.
In particular, a few States report additions to the cleanup criteria they consider. New
Hampshire, for example, has added background levels, MCLs/MCLGs, groundwater standards, and
soil standards to the health-based risk assessment and water quality criteria that the State cleanup
program considered in 1995. Similarly, Kentucky has added water quality criteria, groundwater
standards and soil standards to the risk assessment, background levels and MCLs/MCLGs employed
in 1995. Currently, 22 States report the use of all eight criteria.
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In total, 44 States now report the use of promulgated standards for certain cleanup criteria. Of
these States, 18 have adopted promulgated standards for the first time. In six of these States, the
newly adopted statutes or regulations cover only groundwater standards. States reporting the most
widespread adoption of promulgated standards since 1995 include Florida, Hawaii, Illinois, New
Mexico, Oregon and Rhode Island, and, to a lesser extent, Maryland and Montana. Eleven States
(Arizona, Connecticut, Florida, Illinois, Massachusetts, Michigan, Nevada, Pennsylvania, Rhode
Island, Texas and Washington) now report use of promulgated standards for all eight criteria.
Furthermore, at least 21 States report the use of a combination of promulgated standards and
standards set by policy or ad hoc procedures. In addition to water quality criteria and MCLs/MCLGs,
which are set pursuant,to the Clean Water Act and Safe Drinking Water Act respectively, the criteria
States most frequently adopted by statute or regulation are groundwater standards (34), followed by
background levels (24) and risk assessment (22).
In a majority of States, cleanup determinations are made on a site- or media-specific basis;
however, the methods by which States establish standards vary from State to State. In determining
cleanup levels, States most often consider human health and welfare, environmental harm, and
current and prospective land use.
A number of States employ EPA guidelines to establish standards. Several States now
employ tiered systems or multiple methods to establish cleanup standards. Missouri, for example, is
in the process of developing a three-tiered system—Cleanup Action Levels in Missouri (CALM)—
designed to establish cleanup levels for residential, commercial and industrial sites. Virginia also
employs a three-tiered approach, as established by regulation. Tier One employs background levels;
Tier Two uses regulatory levels (such as MCLs or water quality standards) or risk-based
concentrations; and Tier Three employs site-specific risk assessment. Illinois (through its TACO
program), Pennsylvania, Minnesota and West Virginia (in its voluntary cleanup program) also use
three-tiered systems.
The 1993 Massachusetts Contingency Plan (MCP) provides three methods for establishing
cleanup standards at disposal sites. The first method relies on numeric cleanup standards for 105
chemicals in three groundwater categories and three soil categories. The second method allows
modification of the Method 1 numeric standards based upon site-specific fate and transport
information. The third method establishes cleanup goals based on site-specific conditions and a
quantitative risk assessment. With some limitations, the State allows parties conducting response
actions to choose among these methods.
Most States use carcinogenic risk levels between 10~4and 10"6 with a Hazard Index of 1 for
noncarcinogens, while a small minority (seven States) did not report the use of numerical risk goals.
States consider a variety of factors in making assumptions about future site-specific land use.
The most commonly used approach is to consider current land use and zoning requirements, often
accompanied by consideration of potential future land uses for particular site. A few States—such as
New York, Nevada and North Carolina—assume that a site will be used for residential purposes in
the future unless a deed restriction is in place. Furthermore, several States consider a statement of a
responsible party, while others leave all or some decisions about future land use to local
governments. In many cases, States use a combination of these and other considerations.
In a few States, future land use is based on more loosely defined considerations, such as
"common sense," "reasonable expectations," and "best professional judgment." At least three States
do not use land use assumptions at all, while several others use land use assumptions only for
voluntary cleanup or brownfields sites.
Deed restrictions and deed notices are by far the most frequently used institutional control
mechanisms to ensure that the specified land use is maintained in the future. At least 29 States report
deed notices or deed restrictions as a primary institutional control mechanism. In addition, a number
of States report the use of specific restrictions for groundwater and soil. A few States also report the
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use of restrictive land-use covenants as an institutional control. At least five States report that they
have no land-use institutional controls in place at this time. The individual State summaries in
Chapter VI describe how a State uses institutional controls.
In sum, the information provided by States on cleanup policies and criteria indicates a further
maturing of State cleanup programs, particularly in the areas of groundwater standards and soil
standards, and in the widespread adoption of statutes and regulations governing specific cleanup
criteria. In addition, almost all States report numerical carcinogenic risk goals between 10"4 and 10~6
with a Hazard Index of less than or equal to 1 for noncarcinogens. Moreover, a majority of States
consider current land use and zoning requirements (often in conjunction with consideration of
potential future land use) as at least one factor in the process of determining future land use
assumptions, and use deed restrictions and deed notices as institutional controls to maintain a
specified land use in the future (see Chapter IV for a discussion of cleanup standards in States'
voluntary cleanup programs).
G. Public Participation
General
i
Most States require some form of public participation in decisions concerning State
hazardous substance cleanups, State voluntary or brownfield cleanups, and NKD restorations. Public
participation may be required by statute or regulation, pursuant to agency policy, or implemented on
an ad hoc basis in response to expressed public concern. For many States, the degree of public
participation required during the site remediation process is directly dependent upon public interest.
Table V-13 describes formal and ad hoc public participation requirements for each State.
There has been a decrease in the overall States' public participation requirements since 1995.
A total of 41 States report some form of public participation in the State superfund program, a
decrease from 51 in 1995. This decrease may be attributed to a few States that reported public
participation requirements according to policy or on an ad hoc basis in 1995, but did not report any
public participation requirements in 1997. This change may indicate that the degree of public
participation provided according to policy or on ad hoc basis varies greatly from year to year. Over
time, statutory or regulatory requirements may provide more consistency for public participation in
the site cleanup process. Of the 41 States that do report some form of public participation, 23 States
have only statutory or regulatory requirements for public participation, 13 solicit public participation
strictly as a matter of policy or on an ad hoc basis. Another five States have a combination of
statutory or regulatory and policy or ad hoc requirements for public participation.
Seventeen (17) States apply the same public participation requirements to their State
superfund and voluntary cleanup programs. Other States though have separate and distinct public
participation requirements for each program. Within Florida's superfund program, public notice,
public comment, and public hearings/meetings are provided by policy or conducted on an ad hoc
basis. Alternately, the Florida browrrfields program provides for public notice, public
hearings/meetings, and document availability according to statute. Similarly, Idaho provides
opportunities for public comments, hearings/meetings, and document availability within the State
superfund program, but under the voluntary program, statutory provisions require public notice,
public comment, and hearings/meetings for all site cleanups. In addition to these two, other States,
including Iowa, Oklahoma, Vermont, Virginia, and West Virginia, have statutory or regulatory
public participation requirements for their voluntary remediation programs, but not for general State
cleanups. Conversely, statutory or regulatory public participation requirements exist for the Missouri,
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New Jersey, New York, and Pennsylvania superfund programs, but these States' voluntary
remediation programs conduct public participation according to policy or on an ad hoc basis.
Public participation requirements may also exist under State natural resource damage
recovery programs. Currently though, only Colorado, Delaware, Indiana, New York, and Texas
require public participation in the NRDs assessment and restoration processes.
Public Notice Requirements
One of the most common and important public participation practices is notification of the
public throughout the site handling process. A total of 39 States report public notification at some
point during the site handling process within the State superfund program. Of these 39 States, 26
have statutory or regulatory provisions for public notice, and the remaining 13 provide for public
notice according to policy or on an ad hoc basis. Of the 44 States that have voluntary cleanup
programs, 36 States report public notification at some point during the site handling process within
the program; 27 through statute or regulation, and 9 through policy or on an ad hoc basis.
The manner in which public notice is implemented within a cleanup program depends upon
specific State requirements. States such as Nebraska (groundwater cleanup program only), New
York, Oregon, Rhode Island, Vermont, and Washington, require public notice of draft or final
remedial action plans. Other States, including California, Florida, Delaware, New Jersey, Oklahoma
(voluntary program only), and Pennsylvania, notify the public of decisions concerning cleanup
activities. Hawaii and Delaware provide public notice of administrative records.
The various forms of public notice may be communicated via mail, newspaper, radio, and
availability in public libraries to specific parties within the State. Mississippi provides for public
notice via direct mailings to local governments. New York must mail notice of an addition of a site to
its Registry of Inactive Hazardous Waste Sites, or reclassification of a site within the registry, to
adjacent property owners and to town and county clerks. Hawaii publishes a notice of availability of
the administrative record in a newspaper when the State determines that public participation is in the
public interest or significant concern has been expressed. Nebraska uses multiple forms of
communication giving public notice of remedial action proposals via newspaper, radio, and copies in
local public libraries.
Public Comment
Most States solicit public comments at some point during the site handling process. Within
the State superfund program, a total of 38 States have provisions for public comment Of these 38
States, 26 have statutory or regulatory provisions for public comment, and the remaining 12 have
provisions according to policy or on an ad hoc basis. Within the voluntary cleanup programs, a total
of 34 States report provisions for public comments at some point during the site cleanup process. Of
these 34 States, 24 have statutory or regulatory provisions for public comments, and the remaining 10
have provisions according to policy or on an ad hoc basis.
Most States require public comment in conjunction with public notice. No State, however,
requires public comment without requiring public notice. Of the 44 States that require public notice
for either the State superfund program or the voluntary cleanup program, 42 States require public
comment as well. Iowa and Colorado require only public notice under their voluntary programs,
though Colorado requires public notice and public comment under its State superfund program.'
Montana and North Dakota require only public notice under their State superfund programs, though
Montana requires public notice and public comment under its voluntary cleanup program.
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States solicit public comments for different events during the site cleanup process. For
example, Louisiana holds a public comment period prior to approval of a remedial investigation plan
and selection of a remedy. Rhode Island holds a public comment period on proposed settlement
agreements. Other States like Florida and Wisconsin will solicit public comments for a site only if
sufficient public interest exists.
Some States, such as Alabama (only for significant cleanup sites), Pennsylvania, Nebraska,
New York, and Oregon, require a standard public comment period from 30 to 90 days. New York
holds a comment period of 30 days to. solicit comments on its proposed remedial action plan, as well
as a 30 day comment period after public notice of a proposal to delete a site from the State registry.
Oregon holds a 30-day comment period after providing notice of its program to identify releases,
settlement agreements, and proposed remedial actions.
1
Public Hearings/Meetings
Public hearings/meetings may play a significant role in the site cleanup process. Within the
State superfund program, a total of 37 States report provisions for public hearings/meetings on
cleanup sites. Of these 37 States, 24 have statutory or regulatory provisions for public hearings/
meetings, and 13 have provisions according to policy or on an ad hoc basis. Within the voluntary
cleanup program, a total of 31 States report provisions for public hearings/meetings on cleanup sites.
Of these 31 States, 22 have statutory or regulatory provisions for public hearings/meetings, and 9
have provisions according to policy or on an ad hoc basis.
Public hearings/meetings may be required at different stages in the site handling process.
States such as Arkansas (only for voluntary program), California, and Tennessee hold public hearings
prior to making a decision to add or delete a site from a priority list, or before taking any actions
upon a site. Tennessee requires public meetings at the end of the RI/FS stage to provide input in the
development of the ROD. Missouri conducts public hearings only if resolution of appeals to the State
Hazardous Waste Management Commission cannot be negotiated. In addition, many States,
including Alaska, Florida, Michigan, Nebraska, and Oregon, conduct public meetings or hearings
only if sufficient public interest exists. Moreover, Texas will conduct hearings if requested where not
already required by law.
Grants
i
Nine States provide grants to citizen groups for public participation in the site cleanup
process. Massachusetts, Pennsylvania, Michigan, Montana, and Washington have statutory or
regulatory provisions for grants to citizen groups within the State superfund program. Alaska, Ohio,
New Mexico, and Kentucky give grants to citizen groups according to policy or on an ad hoc basis
within the State superfund program. Only Massachusetts and Michigan provide grants to citizen
groups for public participation in the voluntary or brownfields site cleanup process.
States may offer grants to different parties within the site cleanup process. For example,
Washington offers grants to affected persons or not-for-profit public interest organizations. In New
Mexico, responsible parties often make technical assistance grants available to local communities at
sites being cleaned up under AOCs; and in Massachusetts, technical assistance grants are available
for all parties.
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Other Public Participation Mechanisms
A few States' cleanup programs are assisted by an advisory group or other public committee
predominantly consisting of citizens and private sector representatives. Washington, New Jersey,
Nevada, and Minnesota involve citizens' advisory committees/groups in the site handling process,
and Alaska and Oklahoma have citizens' oversight councils during the site handling process. These
committees and councils may provide invaluable input in site handling decisions.
Statute or regulations require a few States to create public involvement plans during the site
cleanup process. Louisiana must create a Community Relations Program for complex sites within its
State hazardous substance program. This program includes regular public meetings and the issuance
of educational fact sheets. New York develops a citizen participation program at the start of RI/FS
that includes a site-specific citizen participation plan, establishment of a local document repository,
creation of apublic contact list, and a mailing of a description of me proposed RI/FS work within the
State hazardous waste program. In Pennsylvania, apublic involvement plan is created for voluntary
cleanups when the affected municipality asks to be involved.
Certain States create fact sheets and/or press releases to inform and educate the public about
a specific site. Arkansas provides fact sheets prior to major milestones in site cleanups, and Missouri
uses fact sheets to inform the public and solicit public comments. Louisiana issues fact sheets for
complex sites within the State. Press releases are used by Hawaii and Michigan to educate the public.
In addition, Kentucky has a Public Information Repository for State priority list sites, and Ohio has
an Information Clearinghouse within its voluntary cleanup program.
H. Enforcement
State hazardous substance cleanup laws frequently contain enforcement pro visions.
Enforcement authorities under State laws vary significantly. Many of the States with cleanup fund
laws have enforcement provisions in those laws; many of these previsions are similar to those in the
Federal CERCLA. However, other States rely for enforcement on their general environmental laws,
hazardous and solid waste laws, groundwater laws, and other provisions. See Table V-2. For
example, Nebraska's enforcement provisions are contained in its groundwater protection laws and
apply only to contamination of groundwater. Colorado uses its hazardous waste laws and the citizen
suit and natural resource damage provisions of CERCLA to conduct enforcement.
Liability
Who is Liable?
The most important issue in enforcement is determining who can be charged with liability for
cleanup of hazardous substances. Most of the State statutes have followed the Federal lead by
making a wide spectrum of actors "responsible parties." The majority of State liability standards
provide a means to reach the same parties that CERCLA does—owners, operators, generators,
transporters, etc.
A few States have more difficulty reaching beyond owners and operators of disposal sites.
For example, States that rely on RCRA-type authorities for enforcement generally must show a
RCRA violation or, at least, RCRA jurisdiction over the actor or the site at the time that the disposal
occurred. However, even in these States, solid waste laws or imminent danger provisions can provide
a longer reach. Because most States also have a general provision prohibiting pollution of "waters of
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the State," even those States without CERCLA-type authority can at least arguably reach generators
or transporters that have placed hazardous material where it has entered groundwater.
i 'i
Retroactivity
A key issue is the "retroactivity" of the liability imposed by State cleanup statutes. This has
become a topic of concern as Congress debates the reauthorization of CERCLA. CERCLA imposes
liability for disposal and other actions that occurred prior to the date CERCLA was enacted, a form
of liability that has been popularly described as retroactive. In order to avoid any confusion of State
liability with Federal liability standards, ELI asked a precise question: "Can your State program
impose liability understate la\v for cleanup of hazardous substances disposed of before the date the
program was enacted?"
Forty-three (43) States impose retroactive liability (see Table V-15). Only California,
Colorado, the District of Columbia, Idaho, Montana, Nebraska, Utah, West Virginia, and Wyoming
cannot impose retroactive liability using State cleanup laws. Several States, including California and
Colorado in particular, have used the Federal CERCLA to seek cleanup of such sites.
Liability Standards
Liability standards are subject to interpretation by State courts, based on the statutory
language, statutory structure, and the common law legal arguments advanced by the State. In a
number of States, the liability standard has never been tested in court. This study finds that the vast
majority of liability schemes under State programs (32) continue to follow the Federal CERCLA
model of "strict, joint and several" liability, which was itself borrowed from New Jersey.
This study and its prior updates have reflected changes in liability standards not only when
statutes have changed, but also when States' interpretations of their laws have changed—where the
relevant statutory language is subject to more than one interpretation. The study methodology,
consistent since ELI's first study of these programs in 1989, uses the information about liability
standards provided by the States themselves, which ELI then verifies against the statutory language
to assure that the States' asserted standards are within the scope of the statutes. For example, Ohio's
standard is shown as "strict, joint and several," rather than as "not specified" because of its Attorney
General's interpretation of the statute, which is silent on these standards. Similarly, Virginia's
standard is shown in this update as "strict" rather than "other" as in 1995, because of the Attorney
General's interpretation of the statute, which imposes liability where a release occurs from waste that
was "improperly managed." Virginia takes the position that a release of waste shows that the
statutory standard was met
Standards of liability in all of the States involve two questions. These two questions must be
answered separately in order to understand a liability scheme. Unfortunately, they are often confused
in public discussion.
The first question is whether any showing of fault is required in order to render a party liable.
In other words, is liability strict—based solely on the occurrence of a release—or does it require
proof of fault, such as reckless or negligent handling? This is the culpability standard.
The second question is how liability is to be divided among the various actors who
contributed to the presence and release of a hazardous substance. This is the issue of how liability is
to be allocated. Is liability joint and several, proportional, or some combination of both? This is the
allocation standard.
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State Culpability Standards
Strict liability is the most frequently used culpability standard in State cleanup programs.
Strict liability means that the enforcement agency does not need to prove that the responsible party
committed a negligent, reckless, or intentionally wrongful act. Rather, it must show simply that the
party contributed to a release of hazardous substances. With strict liability, a responsible party who
has contributed to hazardous conditions at a site is liable for cleanup costs based simply upon the
occurrence of a release, without proof of fault.
Liability standards other than strict require the State to satisfy a higher burden of proof—such
as proof of negligence or willful intent by a responsible party. This, in turn, requires the State to
spend more resources investigating the past intent of parties involved in a particular site. Liability
standards that require proof of fault effectively limit the universe of parties to whom cleanup liability
may attach. This, in turn, is likely to reduce the effectiveness of the cleanup program.
Forty-one (41) States have strict liability standards (Table V-15). The remaining States either
do not specify liability standards, lack an enforcement statute, or require proof of fault.
State Allocation Standards
Most hazardous substance sites have more than one potentially responsible party. These may
include site owners and operators, the generators of the hazardous substances, the transporters of the
hazardous substances, and various arrangers and disposers. Absent a statutory prescription of an
allocation standard, joint and several liability is the normal common-law method of assigning costs
among responsible parties where more than one party causes harm. It is used in the Federal CERCLA
program. The joint and several liability standard means that each company that contributed in any
way to the presence or release of hazardous substances is held responsible for the entire liability
unless it can show that its contribution to the harm was distinct and divisible.
Joint and several liability enables a government to sue one or more of the responsible parties
for the full amount of the cleanup, and leave it to them either to prove that their share is divisible or
to pay the government the full amount and then seek to recover contributory shares from other
responsible parties. Joint and several liability has been a cornerstone of the Federal program and
many State programs because it allows the government to commence enforcement or cleanup before
all information on the history of the site is available. It also conserves governmental funds by placing
the burden of allocating costs on the private parties responsible for the contamination. Joint and
several liability does not generally result in a single party bearing all of the costs. Instead, it generally
promotes the formation of committees among the responsible parties to attempt to work out their
shares among themselves.
In contrast, proportional liability requires the government tb allocate liability in shares among
the responsible parties by proving their proportional responsibility ;(which may be determined in a
variety of ways). In addition, the government must pick up the tab ifor any defunct organizations that
contributed to the hazardous substances released. A few State laws use proportional liability
schemes, and some States use a hybrid approach.
Like the Federal government, 36 States use joint and several liability as their allocation
standard (Table V-15); of these, all but Michigan, North Dakota, Oklahoma, and Wisconsin are also
strict liability States. Eleven (11) of the 36 States that use the joint and several liability, however,
also specifically allow responsible parties an opportunity to prove a divisible apportionment, or enter
into an allocation process. These are Arkansas, Illinois, Louisiana, Maryland, Michigan, Mississippi,
Montana, North Dakota, Pennsylvania, Texas, and Vermont. In most of these States, while liability '
begins with a joint and several presumption, the opportunity to prove a divisible share is afforded.
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The standard for divisibility is usually more generous than that under the common law. Montana's
law provides for joint and several liability in determining liability to the State, but allows the court to
apportion liability among the responsible parties in the same proceeding after the State has been
allowed to fully recover under the joint and several liability standard. Pennsylvania uses joint and
several liability, but provides a process for responsible parties to participate in allocations of
proportional liability.
Only five States have laws that specify proportional liability as the sole applicable standard
(Alabama, Arizona, California, Tennessee, and Utah).
No standards for allocating liability are specified in 11 States (Colorado, District of
Columbia, Idaho, Kansas, Missouri, Nebraska, Nevada, Puerto Rico, Virginia, West Virginia, and
Wyoming). Some of these, like Colorado, lack a statutory cleanup program comparable to Superfund.
Others simply are silent on the allocation standard. States where there is no allocation standard may
be able to avail themselves of joint and several liability as a common law doctrine.
i
Enforcement Tools
Virtually all State programs have authority to issue administrative cleanup orders. Where
such authority is not available under a State cleanup statute, it often is available under a solid and
hazardous waste law, a groundwater protection law, or a general imminent endangerment provision.
All States have authority to seek injunctions for cleanups. Both order authorities and injunction
authorities are limited by the substantive provisions of State law; some do not reach generators, some
require proof that the release is of a "hazardous waste," and some are as broad as the Federal
Superfund program or broader.
State cleanup orders are not always identical to CERCLA § 106 orders, which are not subject
to pre-enforcement review. In many of the States, a responsible party receiving an administrative
cleanup order has the right to seek review of that order before a board, commission, or State court.
For example, in Illinois, the State must file a complaint with the Pollution Control Board if the <*
responsible party does not agree to cleanup. In Arizona, the recipient of an order may seek
administrative review. Pennsylvania's Hazardous Sites Cleanup Act provides for two types of
cleanup orders. While one type is not subject to pre-enforcement review, the other may be appealed
administratively to Pennsylvania's environmental hearing board. In Texas, a cleanup order may be
appealed to State court. Other States, such as Tennessee and Oregon, do not allow pre-enforcement
review of cleanup orders. In a significant number of States, the availability of pre-enforcement
review has not been determined because all sites have been handled by consent order or voluntary
agreement.
The standard of review for an agency's administrative order may be important. In most States,
no standard of review is spelled out in the statute. In contrast, in Pennsylvania (under one of the two
order types) the agency action must be upheld unless the board or court finds it "arbitrary and
capricious." In Texas, the State has the burden of proving on appeal that there is an imminent and
substantial danger and that the order recipient is liable for the cleanup. However, if the
"appropriateness" of the remedy is contested on appeal, the remedy must be upheld unless the court
finds it "arbitrary and capricious."
Recovery of punitive damages is provided in 25 States (Table V-16). Recovery of treble
damages is authorized in 22 States; one State (Montana) authorizes double damages; and two States
(Connecticut and Tennessee) authorize recovery of \1A times remediation costs as damages.
Louisiana's statute has two standards. It provides for the recovery of treble damages by the State
from noncooperating responsible parties, but it also provides that participating PRPs can recover
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double damages from nonparticipating PRPs, thus giving a stronger incentive to PRPs to participate
in settlements.
The States' standards for assessment of punitive damages vary somewhat, but generally
require more than simple refusal to do the work directed in an order. For example, the Pennsylvania
statute requires "willful" failure to comply. The New Jersey courts have created a "good faith"
defense to such damages.
Most States have civil penalty provisions usable in enforcing cleanup of hazardous sites, but
most rely on their hazardous waste laws, water pollution laws, and solid waste laws rather than on
State superfund laws for this purpose. Moreover, in practice, penalties have not been highly
important in securing cleanup actions. The potential to perform State-funded cleanups and recover
punitive damages has been a much stronger incentive. The real force of this incentive depends upon
the credibility of the State's threat to spend fund monies. The enforcement leverage is minimal to
nonexistent in those States where the fund may only be expended for the State share of NPL cleanups
or for emergency responses, or where it may be expended on State sites only after a lengthy listing
process or by special enactment of the legislature. In contrast, in those States where expenditures can
be authorized relatively quickly, the States' enforcement leverage is enhanced.
Criminal penalties are not a factor in most State cleanup programs. Virtually all of the State
programs contain provisions making the submission of false information or failure to pay fees (where
State funds are supported by fees) criminal offenses. In general, the failure to comply with a State
cleanup order is not a criminal offense. However, solid and hazardous waste statutes provide a broad
range of criminal offenses that may reach unlawful disposal and other types of conduct.
Natural Resource Damages Programs
There is great variation in the content and scope of the States' natural resource damages
(NRD) programs. Thirty-two (32) States have independent authority under State laws to recover
NRDs for hazardous substance sites (see Tables V-17 and V-18). Both these and other States have
actively sought to recover NRDs under Federal CERCLA authority (see Table V-19). In ascertaining
the level of NRD authority and activity, this study has attempted to exclude authorities and actions
related solely to cleanup of petroleum-related spills. ELI also attempted to ascertain whether or not
State laws imposed statutes of limitation on the recovery of NRDs. While seven States identified
such limitations (ranging from three years to 20 years), it is likely that additional States have such
limitations under general civil laws and jurisdictional provisions.
Ten (10) States reported having recovered NRDs under State law for contaminated sites
(Alaska, Arkansas, Delaware, Kansas, Maine, Massachusetts, Michigan, Minnesota, New Jersey, and
New York). Eleven (11) States reported having such claims currently pending under State law. The
latter group includes three States that have not previously recovered such damages (Montana,
Hawaii, and Washington) (Table V-18).
Seventeen (17) States reported having recovered NRDs under CERCLA. Fifteen (15) have
Federal CERCLA NRD claims pending (see Table V-19). Colorado built its State cleanup program
around CERCLA NRD claims. Other States are beginning to make greater use of these authorities, as
the Federal program matures.
This study also examined the status of restoration activities conducted with NRD awards.
States reported at least 96 restoration activities underway using recovered NRDs, and at least 52
restoration activities entirely completed with such funds. Although dollar amounts were not available
for all of the actions reported, nearly $220M in natural resource restoration expenditures were noted
(Table V-20). Most States with natural resource damage authorities reported that funds could be used
to restore damaged resources (26 States) or replace such resources (24 States). Fewer States (18)
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allowed use of such recoveries for protection of resources (e.g., through acquisition, preservation,
etc.).
States also provided information on their approaches to measuring natural resource damages.
A significant number of States seek to recover not only restoration costs (the most common measure
of damages), but also lost use values for damaged natural resources. Eleven or more recognize lost
use value as a measure of natural resource damages. Seven States reported that they seek recovery for
nonuse values as well (Delaware, Louisiana, Massachusetts, Minnesota, New Mexico, New York,
and Ohio). Many States do not have formally adopted standards for NRDs, but use any credible
approach or follow the Federal standards as a matter of practice. This approach may be influenced by
the fact that State claims, in various instances, use both CERCLA and State law as the authority for
recovery of damages.
A few States report that they conduct public participation in connection with NRD
assessment and selection of restoration actions. These include Colorado, Delaware, Indiana, New
York, and Texas.
i
Property Transfer Provisions
Property transfer provisions are "laws, regulations, or policies that link the discovery,
identification, investigation, cleanup, or disclosure of hazardous substance contamination to transfers
of real property, or to transfers of ownership or control of such property." Most property transfer
provisions impose duties on land owners to disclose the presence of hazardous substances on a site;
others require site investigations, and deed recordation; some even require site cleanup as a condition
of the transfer.
An increasing number of States have adopted property transfer provisions. Thirty-one (31)
States report that they have some type of property transfer provision related to sites contaminated
with hazardous substances, up from 25 States in 1995, 23 in 1993, and 18 in 1991 (see Table V-21).
States that simply maintain a database of contaminated sites or that have disclosure requirements
only for sale of residential property, are also shown on Table V-21, but are not included in the total
of 31 unless they also have some other provisions linked to transfer of real property.
Twenty (20) States have provisions that require deed recordation where hazardous sites have
been discovered, listed, or cleaned up. Deed recordation requirements in some States are limited to
hazardous or solid waste disposal facilities. Louisiana requires recordation of notices that a site has
been used for disposal of hazardous waste or as a solid waste landfill, and that such wastes remain;
or, where the State finds an abandoned site, that the site is an abandoned waste site. In Michigan, a
seller who knows that hazardous substances were released in a reportable quantity must not only
provide notice to the purchaser, but also record the notice with the deed of transfer. Upon completion
of cleanup, the owner records a certificate of completion of an approved remedial action. Similar
provisions apply in West Virginia, but only to hazardous waste conveyors, and treatment, storage, or
disposal sites. New York requires county clerks to index in the land records any sites listed on the
Registry of Inactive Hazardous Waste Sites. In Iowa, a conveyor of real property is required to
provide the recorder of deeds with a statement regarding the existence of wells, disposal sites,
underground storage tanks, and hazardous wastes; the recorder must notify the transferee and the
State if these are present.
Twenty (20) States require disclosure of hazardous substances to purchasers of property.
While these provisions typically apply to industrial properties and contaminated sites, in some States
they apply broadly. Some of these States explicitly require sellers to examine their property; in
others, the obligation to investigate is implied or unstated. In some cases, the disclosure is limited to
sites that have come to the attention of the State cleanup program. In others, it applies to whole
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classes of industrial properties. In California, for example, any owner of a nonresidential real
property interest who knows, or has reason to believe that a hazardous substance is located on or
beneath the property is required to notify, in writing, each buyer prior to the sale. Lessees of
residential and nonresidential property are required to give notice to property owners of any release
of a hazardous substance. Failure to give notice can subject the lessees to liability for damages and
civil penalties. The Illinois Responsible Property Transfer Act requires that the transferor provide
environmental disclosure documents to both the transferee and lender. The law applies to all transfers
of real property that is used for manufacture, import, or use of hazardous materials above a statutory
threshold or that contains an underground storage tank. Parties to the transaction may cancel a
prospective transfer based on the disclosures. Indiana's Responsible Property Transfer Law is
modeled on the Illinois statute. Missouri law requires disclosure by the seller, but only for sites on
the State's registry.
Many States (24), including a number of those with hazardous substance disclosure
requirements noted above, have disclosure requirements that apply solely to residential property
transfers. Often part of these States' real estate codes, these typically apply to sales of residential
property with one to four dwelling units. For example, in California, sellers of real property or
residential stock cooperatives with one to four dwelling units must disclose whether they are aware
of the presence of any substances, materials, or products, which may be an environmental hazard.
California counties and cities may add their own disclosure requirements. Some of these
requirements are quite narrow, prescribing a form to be completed by licensed real estate agents
disclosing known material defects or environmental hazards (e.g., Indiana, Washington). Others
allow the buyer to disclose or disclaim knowledge of the condition of the property (e.g., Maryland,
Virginia). A 1995 New Jersey law requires real estate brokers to disclose to purchasers of new homes
the availability of a list of certain off-site environmental conditions that may affect the value of the
property. The list is to be maintained by municipal clerks and includes Federal Superfund sites and
New Jersey contaminated sites among other properties.
Three States require cleanup or cleanup commitments in connection with transfers or sales of
industrial establishments. New Jersey's 1983 Environmental Cleanup Responsibility Act (ECRA)
pioneered the wave of disclosure laws that followed, but was one of only two to mandate cleanup as
well as disclosure. In 1993, the New Jersey legislature amended ECRA, renaming it the Industrial
Sites Recovery Act (ISRA). ISRA retains the basic approach of ECRA, requiring parties to examine
sites and imposing cleanup obligations as a condition of the transfer. The law also applies to closures
of facilities. Failure to comply makes the transaction voidable by the transferee or by the State; civil
penalties are also available. ISRA does allow deferral of cleanup under three conditions: if the site
has been assessed; if it will remain in the same industrial use after the transfer; and if the seller's
ability to pay for cleanup is certified. The New Jersey law is particularly far-reaching because it is
not limited to direct conveyances of real property; ISRA also applies to transfers of ownership and
control of entities holding real property.
Connecticut has a cleanup law patterned after ECRA, but it is not quite as comprehensive.
Like ECRA, it requires cleanup as a condition of transfer. However, the transaction is not voidable
for noncompliance. Instead, the transferor remains strictly liable and is also subject to penalties. In a
new law, Hawaii provides for seller investigation and a cleanup agreement in connection with the
transfer of industrial property.
Twenty-six (26) States now report that they maintain a database or databases to assist
purchasers and other parties to transactions in conducting environmental due diligence to determine
whether sites have been contaminated. This is a substantial increase over prior years.
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Superliens
j
Although not shown on a table, the study also assessed the States' ability to use superliens to
aid in the recovery of State funds spent on site cleanup. A lien is a legal claim against the title of the
property that often comes into play at the time of a transfer, because it makes property transfers more
difficult, or requires satisfaction to give the transferee clear title to the property. A great many States
with cleanup funds have authority to impose liens on the cleaned-up property to recoup the State's
costs.
Superliens differ from ordinary liens in that they claim a higher priority than they would
ordinarily obtain under the laws governing security interests. Ordinarily, liens obtain priority in the
order in which they are recorded. The first lien recorded takes precedence over the second lien, the
second over the third, and so on. This precedence means that upon sale of the property (or
foreclosure), the earlier lienholders must be paid before the later ones can recover anything. A
superlien changes this priority by giving the State's lien for recovery of cleanup costs priority over
some or all liens even if they have been recorded earlier.
The rationale for the superlien is that if the State had not expended the money, the properly
would have been worthless; therefore, the State should recoup its expenses before any others benefit.
Eight States—Connecticut, Louisiana, Maine, Massachusetts, Michigan, New Hampshire, New
Jersey, and Wisconsin have superliens. However, the superiority of these liens varies somewhat. For
example, New Jersey's superlien takes priority over all other liens and over other real property owned
by the site owner, not just the cleaned-up property. Most other superliens give priority only over liens
on the cleaned-up property. Maine's superlien takes priority over any lien recorded after the date of
the superlien law, but not those recorded before the law. Louisiana's lien does not take priority over
prior recorded liens, but its Inactive and Abandoned Hazardous Waste Sites statute allows the
recordation of the lien before the amount is known and allows the lien to relate back to the date of
filing, thus giving it some effective priority. Michigan may file a superlien, rather than an ordinary
lien, only if the Attorney General can make a showing that priority is necessary to protect the State's
interests. Wisconsin's superlien takes priority over other liens except for valid prior liens on
residential property. Arkansas had one of the early superlien authorities, but is no longer listed in this
study as having such authority because of constraints placed on the authority by the legislature
rendering it largely inapplicable in most instances.
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Chapter IV: Voluntary Remediation Programs
A. Voluntary Cleanup Programs
Voluntary cleanup programs are State-sponsored programs that encourage private parties to
conduct cleanups of contaminated properties in the absence of State enforcement measures. The
States typically set the eligibility requirements for participation in voluntary cleanup programs,
establish cleanup standards and provide oversight of the cleanup activities. Voluntary cleanups
provide States with an additional tool to address the over 24,000 sites identified as needing attention
across the country, as well as sites that have not yet been identified. Voluntary cleanups typically
require fewer resources and funding from the State than State-funded or enforcement-based cleanups.
Accordingly, voluntary cleanup programs often allow States to leverage their resources, concentrate
their efforts, and achieve additional cleanups.
Tables V-22 and V-23 provide detailed information on State voluntary cleanup programs.
Table V-22 outlines when the States' programs were established, under what type of authority, and
the citation for that authority. Table V-23 describes eligibility requirements, funding information and
sets out the incentives for participation. Table V-4 outlines information about number of cleanups.
Forty-four (44) States have established voluntary cleanup programs. Thirteen (13) States
have started voluntary programs since 1995: Alaska, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas,
Maryland, Mississippi, New Hampshire, New Mexico, Utah, and West Virginia. One State,
Nebraska, has a voluntary cleanup program but no other cleanup program.
Only the District of Columbia, Kentucky, Louisiana, North Dakota, South Dakota, Vermont,
and Wyoming report that they do not have voluntary programs. However, several of these States,
including South Dakota and Vermont, nevertheless allow private parties to initiate voluntary
cleanups. In addition, Louisiana has a program framework established but has not yet started
accepting sites, Vermont has abrownfields program that allows for certain types of voluntary
cleanups, and Kentucky is in the process of developing guidelines for a voluntary cleanup program.
States have created voluntary cleanup programs in the absence of Federal legislation and
there are no Federal standards that States must meet. Therefore, voluntary programs vary
considerably from State to State in terms of formality and structure, as discussed below. For
example, in Alabama, the voluntary program is an informal component of the State's cleanup
program; whereas in Arkansas, the voluntary program is a formal, independent program established
by statute.
Authority
States derive authority for their voluntary cleanup programs in several ways: specific
statutory authority; the general authority of the State's hazardous waste laws; regulations issued
pursuant to current statutory authority; and guidance or policy. Most State voluntary programs are
specifically established by statute. Several States, however, including Alabama, California, and
Nevada rely on their general cleanup authority for their voluntary programs. At least one State,
Washington, reports that it derives its authority from regulations. Other States, including Alaska,
New York, and South Carolina, have established their programs through guidance or policy.
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Administration
In most States the voluntary cleanup programs are integral components of the general
hazardous site cleanup programs and are administered by the same offices. A limited number of
States separate the administration of their hazardous substance programs and voluntary programs, but
typically describe the programs as compatible or companion programs (Arkansas, Iowa, Missouri,
and New Mexico). In a few States, including Nebraska, Nevada, New Hampshire, and Oklahoma,
almost all cleanups in the State are conducted under the voluntary program.
Eligibility
Most States limit participation in their voluntary programs in some manner. There are two
basic approaches to defining eligibility for State voluntary programs: by site characteristics and by
the type of volunteer. Some use one approach or the other, but many use a combination of the two
approaches. One common approach, used by approximately 25 States, is to preclude sites that are
subject to pending enforcement or regulatory actions under either State regulatory programs
(hazardous waste, cleanup, UST, or AST) or Federal programs (Superfund or RCRA) or both. This
approach is often used in conjunction with other eligibility criteria.
Another approach is to limit the program to certain types of volunteers. For example, some
States bar parties responsible for the site contamination from participating in voluntary cleanups.
These include Georgia, Louisiana, New York, and West Virginia. Other States bar parties that are not
in compliance or have been convicted of a violation of an environmental law from participating in
their voluntary programs (Maryland, New Mexico, and Oklahoma). Several States prohibit
volunteers that are subject to Federal regulatory programs or enforcement proceedings (Arkansas,
Idaho, Mississippi, New Jersey, New Mexico, Ohio, Oklahoma, and Wisconsin) or State enforcement
proceedings or regulatory programs (New Jersey, Ohio, and Wisconsin). Several of these States also
take site characteristics into account when determining eligibility.
Several States do not use any categorical exclusions, but typically reserve the option of
rejecting applications if appropriate. These States include: Alaska, Michigan, Minnesota, Nebraska,
Nevada, Oregon, and Pennsylvania.
i| l
.1
Cleanup Standards
i i
i
Cleanup standards for voluntary sites are typically the same as the standards applied at State
lead or enforcement sites. Thus, contrary to the common perception that States may apply less
stringent cleanup standards to voluntary cleanups than to other types of cleanups, it appears that, at
least on paper, the standards are usually identical. The limited number of exceptions include Iowa,
which uses background levels to determine cleanup levels in its voluntary program but not in its State
regulatory program; Indiana, which uses background levels in its regulatory program but not in its
voluntary program; and Maryland, which considers land use in its voluntary program but not in its
regulatory program.
In some cases, the voluntary standards are statutory but the State cleanup standards are
established in policy or applied on an ad hoc basis. This is usually because the State recently enacted
voluntary program legislation that codified the standards currently used in State cleanups. In the
alternative, the standards may have been enacted as part of the voluntary program and were
subsequently adopted in policy for the State program. For example, several States have statutes that
require the use of risk assessment for voluntary cleanups but apply risk assessment for State cleanups
only as a matter of policy or on an ad hoc basis (Iowa, Kansas, Ohio, Virginia). Similarly, several
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State statutes require land use to be taken into account in voluntary cleanups (Kansas, Ohio,
Virginia); whereas their State programs consider land use on an ad hoc basis or as a matter of policy.
Consistent with the State regulatory cleanup programs, approximately 27 of the States with
voluntary programs use groundwater standards established by statute or regulation and an additional
six States use groundwater standards established by policy or on an ad hoc basis. Eighteen (18) of the
States with a voluntary program have soil standards established in statute or regulation, and an
additional 12 States use soil standards established through policy or on an ad hoc basis. Twenty-four
(24) States have statutes or regulations that provide for land-use based standards for their voluntary
cleanup programs and an additional 15 States take land use into account as a matter of policy or on
an ad hoc basis.
Cleanup Activities
The number of voluntary cleanups underway in States that have voluntary programs varies
dramatically from 0 in Iowa to more than 2300 in New Jersey. The wide range in numbers may be
attributable, in part, to the fact that many programs were only recently established. In addition the
number of sites and, therefore, the number of potential volunteers varies considerably from State to
State. Furthermore, some States rely heavily on their voluntary programs while other States maintain
active enforcement programs or State-funded cleanups in addition; to their voluntary program. Of the
States that provided cleanup activities numbers, those with voluntary cleanup activities underway at
over 100 sites include: Georgia (205); Illinois (439); Indiana (200); Michigan (165); Minnesota
(500—includes investigations and cleanups); New Jersey (2300); Ohio (200); Oregon (212);
Pennsylvania (150); and Texas (445).
States with cleanups underway at less than ten sites include: Alabama (three); Arkansas
(three); Hawaii (one); Iowa (zero); Maryland (four); Mississippi (two); Nebraska (three); Vermont
(two); and West Virginia (six).
New Jersey reported the largest number, 1721, of sites with voluntary cleanups completed in
1997, followed by Minnesota with voluntary cleanups completed at 100 sites in 1997. No other
States completed voluntary cleanups at more than 75 sites in 1997,
Since the start of their voluntary cleanup programs, Minnesota (500) and New Jersey (4454)
have completed cleanups at the largest number of sites. Several States have completed voluntary
cleanups at over 100 sites: Illinois (283); New Hampshire (136); North Carolina (250); Pennsylvania
(300); Texas (158); and Washington (176). Although some of these States have had voluntary
programs in place for 10 years or more (Illinois, Minnesota, and North Carolina), two of the largest
programs were established more recently, in 1995 (Pennsylvania and Texas).
Incentives
Most States provide incentives for participation in their voluntary cleanups, in an effort to
overcome deterrents to performing voluntary cleanups, including potential liability, cleanup costs,
and transaction costs. One of the most common incentives offered by a majority of States with
voluntary cleanup programs is some form of liability release upon completion of voluntary cleanup
activities. Typically, the State provides liability protection contingent upon State approval of the
cleanup and limits the protection to only the contamination addressed by the cleanup activities,
excluding unknown, preexisting contamination or new releases of hazardous substances.
Liability relief is provided through a variety of mechanisms and the scope of the relief varies
from State to State as well. Given that many voluntary programs are relatively new, liability relief
tools are still being developed and refined. Furthermore, States do not use uniform terminology in
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referring to forms of liability relief. Two States providing the same substantive form of liability relief
may use different terms to describe it. Conversely, different forms of liability relief may be referred
to by the same term in different States.
One of the most common methods of providing liability relief is the covenant not to sue. The
scope of a covenant not to sue will vary from State to State but, at a minimum, will typically provide
that the State will not take enforcement action against the volunteer for contamination addressed by
the cleanup. Several States, including Georgia, Maine, Pennsylvania, Rhode Island and South
Carolina, report that they specifically provide protection from third-party contribution actions, in
addition to protection from State actions. Pennsylvania provides protection from citizens suits as
well. At least one State, New Jersey, provides a covenant that "runs with the land" and, therefore,
does not expire with transfer of the property.
Another common method of providing liability relief is the "No Further Action" letter. At a
minimum, a "No Further Action" letter includes the State's assurance that, based on currently known
facts, it is unlikely to require the volunteer to take further action with respect to contamination
addressed by the voluntary cleanup. Many States use "No Further Action" letters that not only
provide assurances that no further cleanup is required, but also specifically provide liability relief. It
is important to note, however, that some States do not provide liability relief in their "No Further
Action" letters—either because such relief is not available or because it is provided in a separate
document, such as a settlement agreement with a covenant not to sue.
Other States issue certificates of completion or approval letters that provide liability relief. As
with "No Further Action" letters, some States do not include a liability release in their certificates
and approval letters, but simply provide assurances that are intended to give comfort to lenders and
prospective purchasers that additional cleanup activities will not be required. Another approach to
providing liability relief is taken by Iowa. The State issues indemnification letters to volunteers for
any future claims.
Some States will only provide liability protection to parties that are not responsible for the
contamination. For example, Delaware, Maryland, New Mexico, Rhode Island, and Utah will not
provide liability protection to responsible parties.
In addition to liability relief and comfort letters, a common incentive reported by States is
expedited and/or efficient cleanup oversight processes that include clear end points and deadlines for
agency determinations. Alabama, Arizona, California, Maryland, Massachusetts, Mississippi, New
Jersey, and otter States employ some variation of a streamlined process for voluntary cleanups as an
incentive for participation.
Additional incentives take a wide variety of forms. For example, some States provide
financial assistance in the form of low interest loans (Ohio and Minnesota) or tax credits and
incentives (Idaho, Ohio, Oklahoma, and Wisconsin). It is important to note that these financial
incentives are often offered through economic development programs administered by State agencies
other than the agency overseeing the brownfields cleanups. Tennessee provides orphan share funding
as an incentive for voluntary cleanups and will decline to issue a lien or notice of hazardous
substance on the property deed. Other States, including Minnesota and Washington, provide
technical assistance to volunteers. Hawaii records the completion of cleanup activities on the deed to
the property and sends a letter to the building permit agency.
I
Funding
States typically require participants to reimburse them for voluntary cleanup oversight costs,
either in the form of a flat fee or on the basis of actual costs, or a combination of both. The following
States impose only a flat fee for participation in the program regardless of actual costs to the State of
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overseeing the cleanup: Colorado ($2,000); Massachusetts (site-specific); Nebraska ($5,000); New
York (negotiated); North Carolina ($2,000, refundable if not used, plus $500 for "No Further Action"
letter); Pennsylvania ($250); Rhode Island ($1,000); and Virginia (the lesser of $5,000 or 1% of
remediation costs).
The following States seek reimbursement for their costs: Alabama; Alaska (reimbursement
after expenses exceed $1,000); Arizona; Arkansas ($63 per hour); California; Idaho; Minnesota ($92
per hour for oversight costs); Montana; New Jersey (hourly fee except some volunteers, including
farmers, may elect to pay a lower fixed fee); Ohio (site-specific); Oklahoma; Oregon ($2,000/$5,000
deposit depending on site); South Carolina (responsible parties pay actual costs, non-responsible
parties' fees negotiable); Washington ($500 deposit and hourly rate).
Several States require a flat fee in combination with reimbursement for oversight costs.
Although this approach differs in form from the other two approaches, for the most part, it is just
another way that States ensure that their costs are recovered. These States include: Connecticut
($2,000 plus flat amount based on property value); Delaware ($5,000 plus costs); Hawaii ($1,000
plus $5,000 deposit); Indiana ($1,000 plus costs); Illinois ($1,000 plus costs); Iowa ($750 plus
reimbursement for costs capped at $7,500); Kansas ($200 plus up to $5,000 deposit with specific
amount determined by nature and extent of contamination); Maine ($500 plus costs); Maryland
($6,000 plus costs, refundable if not used); Mississippi ($500 plus direct and indirect costs); Missouri
($200 plus $5,000 deposit); New Mexico (fee and oversight costs not yet determined); Tennessee
($5,000 plus costs); Texas ($1,000 plus $67 per hour); Utah ($2,000 plus costs); West Virginia
($1,000 or $3,000 or $5,000 plus hourly fee); and Wisconsin ($250 fee plus hourly charge).
The following States do not impose fees on volunteers: Florida, Georgia, Illinois, Michigan,
and Nevada. Florida, Georgia, and Nevada fund their programs from their general budgets. Illinois
covers its costs for the voluntary program out of fees collected for hazardous waste treatment and
disposal. Michigan relies on bonds and the State general fund.
Some States rely on State or Federal funding to supplement the fees and costs paid by
volunteers. These States include: Connecticut (general fund, core and voluntary program funding);
Maryland (State and Federal funds); Massachusetts (operating funds); Minnesota (State
appropriations and Federal cooperative agreement); Missouri (appropriations); Nevada (Hazardous
Waste Management Fund); Pennsylvania (Hazardous Sites Cleanup Fund); Rhode Island (general
funds); Tennessee (EPA Core grant); Virginia (EPA grant).
B. Brownfields
States define brownfields in a variety of ways, but the term typically refers to urban industrial
or commercial facilities that are abandoned or underutilized due, in part, to environmental
contamination or fear of contamination. States have made special efforts in recent years to target
brownfields for cleanup and reuse for several reasons, including the potential to revitalize distressed
communities, increase tax dollars, and provide new jobs. States take a wide range of approaches and
use an assortment of tools. Some States specifically address brownfields through their voluntary
cleanup programs, others supplement their voluntary program activities, and still others have separate
brownfields cleanup and redevelopment programs.
It is important to note that the difference between voluntary and brownfields programs can be
a question of semantics rather than substance. In theory, a brownfields program would focus on
urban, rather than rural, sites and on industrial sites rattier than spill or dump sites, and a voluntary
cleanup program would be open to volunteers at any type of site in any location. In practice,
however, State voluntary cleanup and brownfields programs do not necessarily make those
distinctions. For example, a voluntary program in one State may focus more heavily on cleanup of
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I
brownfields sites than a "brownfields" program in another State. For this reason, it is important to
look at both voluntary and brownfields programs to determine the brownfields redevelopment
activities in any given State.
Typically, however, voluntary programs do not focus on redevelopment nor do they target
urban sites specifically. Rather voluntary programs are more often aimed at getting simple, less
contaminated sites cleaned up regardless of whether they are reused. Brownfields programs, on the
other hand, are more likely to focus on redevelopment and be part of a broader State strategy or set of
social policies aimed at improving distressed urban areas.
Tables V-24 and V-25 provide details about State brownfields programs. Table V-24 outlines
the authority under which each State established its brownfields program, the citation for that
authority and the criteria for including a site in its brownfields program. Table V-25 sets out the
number of sites that have been identified by each program, the number of sites where cleanups are
underway, and the number of sites that have commitments for redevelopment, in addition to the
manner in which States facilitate or provide incentives for redevelopment of brownfields.
By the end of 1997, a little over half of the States reported that they had brownfields
programs; an increase of 13 States since 1995. Approximately half the programs are separate and
distinct programs but the other half are part of the States' voluntary programs. Most of the programs,
approximately 22, were established by statute. In some States, statutes specifically create brownfields
programs, but in other States the brownfields programs were established pursuant to the State's
general voluntary cleanup statute. Other State brownfields programs were established informally or
through policies (Alabama, Hawaii, Illinois, South Carolina, Texas, and Virginia) or a mixture of
both (Maryland). Brownfields legislation is also pending in several States, including South Carolina
and Massachusetts.
In Region 2, both New Jersey and New York have brownfields programs (Puerto Rico
provided no information, but did not have a program in 1995). Similarly, in Region 5, all States,
except for Ohio have formal programs. In Region 3, Delaware, Maryland and Virginia have
brownfields programs. Although Pennsylvania does not have a separate brownfields program, its
voluntary cleanup statute and program specifically address brownfields. In Region 4, five States have
programs (Alabama, Florida, Mississippi, North Carolina and South Carolina) and in Region 6 all
States except Louisiana have programs, though the Texas program is informal and limited in scope.
In addition, all of the States in Region 9 have programs except Nevada. In Region 1, four out of six
States (Connecticut, New Hampshire, Rhode Island and Vermont) have formal brownfields
programs.
On the other end of the spectrum, in Region 7 only Missouri has a brownfields program. No
States in Regions 8 and 10 have brownfields programs. The lack of brownfields programs in these
Western and Midwestern States may be due in part to smaller inventories of underutilized or
abandoned urban industrial sites.
Several States that do not have formal brownfields programs or have programs that are very
limited in scope are targeting brownfields sites through other mechanisms. For example, through its
voluntary program Maine is working with other State agencies to form a "Brownfields Team" that
will identify potential in-State resources to promote redevelopment. Massachusetts' covenant not to
sue program is designed to attract cleanup and redevelopment to areas in State-designated Economic
Target Areas. Texas addresses brownfields through its voluntary program, as supplemented by
education of local government and interested parties, technical reviews, and State and Federal tax
incentives. Kentucky is in the process of developing guidelines for a formal broad-based brownfields
program and currently has authority to provide municipalities with regulatory incentives to perform
brownfields cleanups. In addition, Tennessee and Oregon brownfields sites are addressed through
their voluntary programs.
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Criteria for Inclusion
The criteria for inclusion in brownfields programs vary considerably depending on the scope,
nature, and structure of the particular State program. The most common criteria used by States for
including sites in their brownfields programs are that the sites are abandoned or underutilized and
have potential for redevelopment. The precise articulation of this standard varies from State to State.
In the alternative, some States simply use the same criteria for their brownfields sites as for
their voluntary program sites (Illinois, Minnesota, Oklahoma, and South Carolina). Other States have
programs that are narrow in scope that include only locally or municipally owned properties
(Missouri, New York, and Texas).
Some States have more unusual criteria. Florida's statute establishes a process through which
"brownfields areas" must be designated by local government by resolution with appropriate public
notice and hearings. In designating brownfield areas, the Florida local government must consider
nine specific issues outlined in the statute. Among the criteria to be considered are redevelopment
potential, private sector interest, recreational open space potential., cultural and historical preservation
value, potential jobs, potential economic productivity, and consistency with local comprehensive
plans and local land use. Delaware's program includes sites where employment is created and
investments are made for business. Alabama's program is based on an alliance with EPA whereby
EPA designates the brownfields and provides grants to fund remediation activities. Alabama provides
assessments and oversight in lieu of oversight responsibilities at GERCLIS sites. Maryland has
extensive statutory eligibility requirements for State financial incentives. For Maryland's site
assessment initiatives, the sites may not be on CERCLIS, may not be seriously contaminated and
must be likely to be redeveloped. In addition, some States specifically exclude sites that are subject
to State or Federal enforcement or regulatory actions (Arkansas, Arizona, Florida, New Hampshire,
New Mexico, Vermont, and Virginia).
Cleanup Activities
The number of brownfields sites identified and the size and the scope of many programs has
increased since 1995, as a result in part of the increased focus on urban revitalization and the
growing maturity of many State programs. For example, the number of brownfields sites identified
for State programs has increased dramatically since 1995 in several States. In 1997, Illinois reported
the largest number, 1011, of brownfields sites identified. Following Illinois are Arkansas (262),
Connecticut (144), Delaware (300), Michigan (164), and New York (105). In contrast, in 1995,'
Illinois had fewer than half the number of sites identified in 1997 (400-500). Delaware reported only
19 sites identified in 1995, Connecticut only 34, and Arkansas zero.
Due in large part to the recent establishment of many of the brownfields programs, no other
States had more than 100 sites identified and several States have identified fewer than ten sites for
their programs (Alabama, Arizona, Florida, Hawaii, Mississippi, Missouri, New Mexico, Oklahoma,
South Carolina, Texas, Vermont, and Virginia).
Several of the same States that have identified the largest number of sites also report the
largest number of sites with cleanups underway: Connecticut (44)> Delaware (30); Illinois (439); and
Michigan (55). In addition, Minnesota reports that it has "several hundred" cleanups underway.'
Although the number of cleanups underway increased for each of these States from 1995, the
increases are not dramatic and seem instead to represent a steady development of the brownfields
programs in these States.
Given that site redevelopment is a cornerstone of most brownfields programs, the number of
commitments for reuse is often an indication of the success of a program. In almost all of the States
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reporting, the number of commitments for reuse is equal to, or greater than, the number of cleanups
underway. In general, however, the number of commitments for redevelopment in each State is still
fairly low. For example, the number of commitments for redevelopment or reuse of brownfields sites
was fewer than eight for all States except Michigan (144), Delaware (30), New York (20); Montana
(12); Missouri (8); and New Hampshire (8). The redevelopment commitment numbers for several
States, including Connecticut and Illinois, are not available. Because many States did not report reuse
commitments in 1995, it is difficult to gauge the relative increase in commitments for reuse.
i
Cleanup Standards
Almost all of the States use the same cleanup standards for brownfields and voluntary
cleanup sites. The few States with different standards or cleanup approaches appear to be offering
additional incentives for brownfields cleanups. For example, Florida provides for "risk-based
corrective action," whereby brownfields cleanup participants may be allowed to substitute
institutional and engineering controls for the remediation levels otherwise required by statute.
Similarly, North Carolina also allows for alternative cleanup strategies that focus on removal of
exposure pathways at certain brownfields sites. Florida also is currently conducting a rulemaking for
its Brownfields Cleanup Criteria Rule that proposes to establish default cleanup target levels and
authorize the establishment of alternative cleanup target levels on a site-specific basis. In addition, in
Mississippi brownfields cleanup standards have not yet been determined, but the governing statute
specifies that risk assessment must be used. Maryland and Virginia do not have established cleanup
standards for their brownfields programs because their programs focus on site assessments rather
than cleanups.
Incentives
Almost all States with brownfields programs provide incentives for participation. These
incentives fall into two general categories: liability relief and financial incentives. However, several
States also use other types of incentives, as discussed below.
Liability relief is a key incentive provided by States to encourage brownfields cleanup and
redevelopment. The form of liability relief is often similar to the relief provided by the State
voluntary programs. In some States, however, such as Florida and New Hampshire, liability relief
incentives are reserved for the brownfields programs and are not usually available through the
voluntary cleanup programs.
The following States provide some type of liability relief: Arkansas (liability release); Florida
(protection for participants and certain lenders from State and third-party liability); Michigan
(liability protection); Minnesota (extent of liability assurances depends on level of State review
requested by volunteer); New Hampshire (covenant not to sue); New Jersey (liability release); New
York (liability release transferable to future owners); North Carolina (liability limits, "No Further
Action" letters); Oklahoma (certificate of no action with liability release); Rhode Island (covenant
not to sue and contribution protection for non-responsible parties); South Carolina (covenant not to
sue, contribution protection for non-responsible parties); Vermont (limited liability protection for
redeveloper and successor); and Wisconsin (liability exemptions). In Mississippi incentives are under
development but the governing statute requires liability protection.
Many States provide some type of financial incentive, including but not limited to, the
following: Arkansas (low interest revolving loan program); Delaware (low interest loans, tax credit,
grants); Florida ("bonus refunds" of $2,500 for each new job created in the State); Maryland
(property tax credits, grants, loans, free site assessments); Illinois (State tax credit, brownfields
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grants); Massachusetts (incentives through its economic development program); Michigan (grants to
local governments for investigation and remedial action); Minnesota (various financial incentives);
Missouri (grants, loan guarantees, tax credits); New Jersey (loans, grants, tax incentives, remedial
cost reimbursement); New York (up to 75 percent of municipalities' costs associated with investment
and cleanup); Oklahoma (tax incentives for remediation and redevelopment, job act incentives);
Rhode Island (funding authorized but not yet available to facilitate redevelopment); Texas (property
tax abatements); Vermont (site assessment funds through HUD grants); West Virginia (revolving
loan fund for site assessments); and Wisconsin (funding for site assessments by municipalities;
reimbursement for portions of UST and agricultural spill cleanups; tax incremental financing; and tax
credit).
Other incentives include variances from technical standards (New Jersey); encouragement of
local governments to offer economic incentives such as one-stop permitting, tax credits, and low
interest loans (Florida); advice and document review (Oklahoma); issuance of letters for Federal
income tax expensing of remediation costs (Texas); technical assistance (Texas); and education and
outreach efforts to anyone interested in reusing a brownfielcls property (Texas and New Mexico).
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Chapter V: State Program Tables
This Chapter consists of 25 Tables summarizing the information collected as part of this study. The
Tables include all 50 states, the District of Columbia, and Puerto Rico, and are organized by EPA
Region. The Tables have been designed to provide information at ,a glance and to be self-explanatory.
Nevertheless, ELI recommends that readers consult the sections of Chapters HI and IV that relate to
specific Tables as those sections provide additional explanation, clarification, and analysis. For State
specific information, readers should consult the individual State summaries in Chapter VI.
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Table V-1: Overview of State Programs
Summary
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Region State
Table V-1: Overview
Enforcement
of State Program
Staffing Levels
Fund Balance
1
2
3
4
5
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
45
27.5
224
29.5
22
17
530
329
0
30
0
38
132
17.25
1
28.1
110
40
31.5
14
31.25
46.5
67
112
60
242
82
161.7
71.5
$13,500,000.00
$7,400,000.00
$86,300,000.00
$1,500,000.00
$50,000.00
$4,800,000.00
$114,700,000.00
$612,041,042.00
$8,400,000.00
$500,000.00
$120,026,484.00
$3,569,781.00
$1,800,000.00
$615,590.00
$24,529,984.40
$1,073,451.00
$4,000,000.00
$750,000.00
$4,823,533.00
$25,077,099.81
$9,559,568.88
$21,900,000.00
$24,511,554.00
$7,644,000.00
$5,300,398.00
$31,081,539.61
$21,381,000.00
51
-------
Region State
Table V-1: Overview of State Program
Enforcement Staffing Levels
Fund Balance
6
7
8
9
10
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Totals:
52
11
35
24
19
113
12
49
53
11
28.5
26
6
3.5
36
11
63
310.2
18.5
9.5
42.5
33
79
146.5
3680
$8,798,191.00
$1,693,995.00
$1,659,814.00
ij i
$17,168.00
$69,898,478.00
$1,060,868.00
$0.00
! -$1,300,000.00
$19,000,000.00
$14,506,467.00
$160,000.00
j i
$1,750,000.00
$1,500,000.00
$813,192.00
$2,411,121.00
1
$225,000.00
$1,000,000.00
$76,154,222.00
j : .
$12,142,352.00
$44,867,955.00
$1,413,193,848.70
j
i
i
! ';
-------
Table V-2: Statutory Authorities and Provisions
Summary
Forty-seven (47) States have cleanup funds authorized by statute.
Five States have limited fund capabilities, in that their funds can only be used for emergency
responses and/or CERCLA match.
Nineteen (19) States have natural resource damages authorities.
Fifty (50) States have State superfund laws that pro vide enforcement authorities.
Twelve (12) States have enforcement authorities only in statutes other than their State superfund
laws.
Twenty-seven (27) States have statutory provisions for a priority list
Fourteen (14) States report some authority for citizen suits.
Twenty-one (21) States provide compensation for victims of hazardous substance releases,
although ten States limit that relief to replacement of water supplies.
Twenty-seven (27) States have some mandatory provisions governing property transfers.
Forty-four (44) States have statutory authorities for voluntary or brownflelds cleanup programs
(other States have adopted such programs by regulation or policy).
53
-------
Table V-2: Statutory Authorities and Provisions
Cleanup Enforce. Prior. Citizen Victim Prop. Vol.
Reg.
1
2
3
State
CT
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
Statute Name Fund Author. List NRDs
Emergency Spill Response Fund X X
Public Act 87-561 X X
Public Acts 95-183 and 95-190 (Voluntary Cleanup and
Licensed Environmental Professional Programs)
Transfer of Hazardous Waste Establishments X
Urban Sites Remedial Action Program X
Uncontrolled Hazardous Substance Sites Act XX X
Voluntary Response Action Program
Oil and Hazardous Material Release Prevention and X XXX
Response Act
Bcownfields Program X
Hazardous Waste Cleanup Fund Act X X
Hazardous Waste Management Act XX X
Industrial Property Remediation and Reuse Act X X
Act Rclatingto Administrative Enforcement of Specified X
Environmental Laws
Waste Management Act X
Water Pollution Control Law X
Brownfield and Contaminated Site Remediation Act X
Environmental Rights Act
Industrial Site Recovery Act
Spill Compensation and Control Act XX X
Water Pollution Control Act
1986 Environmental Quality Bond Act X
Abandoned Sites Act of 1979 XX
Environmental Conservation Law X X
New York State Superfund Act of 1982 and 1985 X
Amendments
Environmental Emergencies Fund Act X
Public Policy Environmental Act X
Hazardous Substance Cleanup Act X XXX
Hazardous Waste Management Act X
Annotated Code of Maryland, Environment Article, X XXX
Title 7, Hazardous Materials and Hazardous
Substances, Subtitle 2
Annotated Code of Maryland, Environment Article, X X
Title 7, Hazardous Materials and Hazardous
Substances, Subtitle S
Hazardous Sites Cleanup Act X XXX
Land Recycling and Environmental Remediation X X
Standards Act
Environmental Response Emergency Fund Act X
Waste Management Act X
54
Suits Comp. Trans. Cleanup
ws
X
X
X X
X
X X "
X
X
X
X
X
X
X
X X
X
WS X
,
X X
WS X X
X
X
X WS XX
X X
X
-------
Table V-2: Statutory Authorities and Provisions
Reg. State Statute Name
Cleanup Enforce. Prior. Citizen Victim Prop. Vol.
Fund Author. List NKDs Suits Comp. Trans. Cleanup
3 WV Groundwater Protection Act
Hazardous Waste Emergency Response Fund Act
Hazardous Waste Management Act
Voluntary Remediation and Redevelopment Act
4 AL Hazardous Substances Cleanup Fund
FL Environmental Control
Pollutant Discharge Prevention and Removal Act
GA Hazardous Site Response Act of 1 992
Hazardous Site Reuse & Redevelopment Act of 1996
KY Kentucky Revised Statute 224.01-400
Kentucky Revised Statute 224.46-580
MS Air and Water Pollution Control Act
Brownfields Voluntary Cleanup Act of 1998
Solid Waste Disposal Act of 1974
NC Brownfields Property Reuse Act
Inactive Hazardous Sites Response Act of 1987
Solid and Hazardous Waste Management Act
SC Hazardous Waste Management Act
TN Hazardous Waste Management Act of 1 983 Part 2
5 IL Environmental Protection Act
Responsible Property Transfer Act
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X X
X X
X
X X
X
X X
X
X
X X
X
X
X
X
X
WS X
X
X
X
X
X
X
X X
X
X X
WS X X
X
IN Brownfields Revitalization Zone Tax Abatement
Environmental Legal Actions
Hazardous Substances Response Trust Fund
Responsible Property Transfer Law
Voluntary Remediation of Hazardous Substances and
Petroleum
MI Natural Resources and Environmental Protection
MN Minnesota Environmental Response and Liability Act
(MERLA)
OH Environmental Protection Agency Act
Solid and Hazardous Waste Disposal Law
Voluntary Action Program
Water Pollution Control Act
WI Remedial Action
6 AR Brownfields Law
Environmental Law
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
WS
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
55
-------
Table V-2: Statutory Authorities and Provisions
Keg. State Statute Name
6 LA Citizen Suits
Hazardous Waste Control Law
Inactive and Abandoned Hazardous Waste Site Law
Rccordattcn of Notice of Solid or Hazardous Waste Site
by Landowner
Voluntary Investigation and Remedial Action Act
NM Environmental Improvement Act
Hazardous Waste Act
Voluntary Remediation Act
Water Quality Act
OK Brownfields Voluntary Redevelopment Act
General Regulation and Enforcement
Hazardous Waste Fund Act
Hazardous Waste Management Act
Solid Waste Management Act
TK Hazardous Substances Spill Prevention and Control Act
Solid Waste Disposal Act
7 1A Environmental Quality Act
Oroundwater Hazard Documentation Law
Land Recycling and Environmental Remediation
Standards Act
KS Dryeleancr Environmental Response Act of 1995
Environmental Response Act
Kansas Water Plan
Voluntary Cleanup and Property Redevelopment Act of
1996
Water Pollution Control Statutes
MO Hazardous Waste Management Law
NB Environmental Protection Act
Voluntary Cleanup Program: Remedial Action Plan
Monitoring Act
8 CO Hazardous Waste Management Act
Hazardous Waste Sites Act
Voluntary Cleanup and Redevelopment Act
Water Quality Control Act
MT Comprehensive Environmental Cleanup and
Responsibility Act
Controlled Allocation of Liability Act
State Participation in CERCLA
Voluntary Cleanup and Redevelopment Act
Cleanup
Fund
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Enforce. Prior. Citizen Victim
Author. List NRDs Suits Comp.
X
'
X
,1
1
X
X '
1 ii ,
II
X X
1
,1
X
X
X
X
XX WS
I
X X X' " X WS
:
ll
1
X
x : ws
WS
1
X X
1 !
X X '
X X
1 i
1
X
X |
X
X X XX
X X XX
Prop. Vol.
Trans. Cleanup
X
X
X
X
X
X
X
1 X
X
X X
X
1
X
X
X
X X
Water Quality Act
ND Hazardous Waste Management Act
Water Pollution Control Law
X
X
X
56
-------
Table V-2: Statutory Authorities and Provisions
Cleanup Enforce. Prior. Citizen Victim Prop. Vol.
Reg. State Statute Name
8 SD Environmental Protection Act
Hazardous Waste Management Act
Regulated Substance Discharge Law
Water Pollution Control Act
UT Hazardous Substances Mitigation Act
Voluntary Release Cleanup Act
WY Environmental Quality Act
9 AZ Environmental Quality Act
Greenfields Pilot Program
CA Health and Safety Code
HI Environmental Response Law
Voluntary Cleanup Program
NV Hazardous Materials
Water Pollution Control
1 0 AK Liability and Cost for Oil and Hazardous Substance
Discharge Law
Oil and Hazardous Substance and Pollution Control Law
Oil and Hazardous Substance Release Control Law
Oil and Hazardous Substances Releases Law
ID Environmental Protection and Health Act
Hazardous Waste Management Act
Fund
X
X
X
X
X
X
X
X
X
Author.
X
X
X
X
X
X
X
X
X
X
X
X
X
X
List NRDs Suits Comp. Trans. Cleanup
X X
X
X
X X
X
X
X X WS X X
X
XX WS X X
XX WS X X
XX XXX
X X
X
Land Remediation Act
OR Hazardous Substance Cleanup Law
WA Model Toxics Control Act
X
X
X
X
X
X
X
X
X
WS X
WS X
X
X
X
57
-------
Table V-3: Hazardous Sites
\
:i
"! i|
Summary
States identify -69,000 known and suspected sites, a decline from -85,000 identified in 1995,
and-100,000 identified in 1993.
: !
The number of known and suspected sites in each State range from 50 to 15,177.
States identify -24,000 as needing attention, a decline from -30,000 sites identified in 1995, and
-40,000 identified in 1993.
I
The number of sites needing attention in each State ranges from 20 to 4,915.
|
Only six States have more than 1,000 sites identified as "needing attention."
•I
Thirty-seven (37) States maintain some kind of officially sanctioned inventory, priority list, or
registry. However, the numbers on these lists are not comparable and cannot be aggregated
because State definitions vary widely; some lists include sites where no activity is required, while
others include only sites where the State is funding cleanup.
58
-------
Table V-3: Hazardous Sites
Known and State Sites State
Final NPL Proposed Deleted Suspected Identified as Inventory or
Reg. State sites NPL sites NPL sites State Sites Needing Attention Priority List
1
2
3
4
5
6
7
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
16
12
31
18
12
8
121
90
12
20
0
17
111
27
7
13
64
16
20
2
24
27
18
39
36
81
44
34
42
13
15
11
10
34
20
0
0
1
0
0
0
2
2
0
0
1
3
2
2
1
0
1
2
0
3
1
0
2
5
1
3
0
5
1
0
3
2
1
2
1
2
0
1
0
0
0
14
11
0
3
0
2
13
2
1
1
12
2
4
2
1
1
5
1
7
13
18
2
3
2
3
2
0
6
4
3029
465
2679
474
400
362
15177
1567
600
440
50
2015
600
700
1900
1012
1900
960
1040
603
1360
5000
N/A
3000
1460
5000
363
410
344
793
388
400
668
128
2679
474
100
255
4915
769
185
33
20
411
150
125
1094
126
850
500
793
150
234
140
2789
219
403
600
98
120
133
124
52
200
11
465
428
474
362
1402
906
90
N/A
N/A
14
88
N/A
N/A
44
375
1350
200
197
150
141
70
61
2789
138
1189
600
9
410
60
N/A
49
72
59
-------
Reg. State
Table V-3: Hazardous Sites
Known and
Final NPL Proposed Deleted Suspected
sites NPL sites NPL sites State Sites
State Sites State
Identified as Inventory or
Needing Attention Priority List
7
8
9
10
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
15
23
10
17
8
2
3
12
3
11
94
4
1
8
9
12
60
1
0
0
2
1
0
0
4
0
0
4
0
0
0
2
1
0
5
1
0
2
0
2
1
0
0
1
4
0
0
1
2
2
13
720
1475
400
624
N/A
N/A
1424
325
140
900
3247
524
129
1625
N/A
1933
1493
484
;|
• 225
200
l|
178
:
187
: a
N/A
!
I
1
40
N/A
i
" 75
420
! |
103
i
129
| I
1206
N/A
306
1006
556
57
N/A
N/A
187
N/A
N/A
N/A
30
188
4
N/A
1625
N/A
160
595
60
-------
Table V-4: Actions Taken at Non-NPL Sites
Summary
All hazardous substance cleanup programs (including voluntary cleanup programs)
• The number of cleanups underway ranges from 1 (Hawaii) to 4,363 (New Jersey).
• The number of cleanups completed during FY97 ranges from 0 (Iowa) to 2,591 (New Jersey).
• The number of cleanups completed since the start of a State's program ranges from 0 (Iowa) to
18,994 (Texas).
• The total number of cleanups reported by all States as of the end of FY97 was:
• Cleanups underway: 13,713
• Cleanups completed during last fiscal year: 5,552
• Cleanups completed since start of program: 40,994
Voluntary cleanup programs only
• The number of voluntary cleanups underway ranges from 0 (Iowa, Kentucky, Louisiana, and
New Mexico) to 2,313 (New Jersey).
• The number of voluntary cleanups completed during FY97 ranges from 0 (Alabama, Iowa,
Kentucky, Louisiana, New Mexico, Vermont, and West Virginia) to 1,721 (New Jersey).
• The number of voluntary cleanups completed since the start of a State's program ranges from 0
(Iowa, Kentucky, Louisiana, New Mexico, Vermont, and West Virginia) to 4,454 (New Jersey).
• The total number of voluntary cleanups reported by all States as of the end of FY97 was:
• Cleanups underway: 5,536
• Cleanups completed during last fiscal year: 2,363
• Cleanups completed since start of program: 6,792
61
-------
Table V-4: Actions Taken at Non-NPL Sites
All Hazardous Substance Cleanup Programs
(including Voluntary
Reg.
1
2
3
4
5
State
CT
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
Programs)
Cleanups Cleanups
Cleanups Completed Last Completed Since
Underway Fiscal Year Start of Program
453
98 (b)
83
2(b)
4363
266 (a)
87
—
37
160
88
14
30
1094
244
300
60
85
53
141
479
250
361
628
365
130
17
26
619
50
21
2591
47 (a)
16
—
3(b)
87
23
39
27
67
34
50
20
15
7(b)
22
78
15
101
101
23
73
140
1732
136
115
12634
269 (a)
56
—
3(b)
390
44
111
100
555
91
600
112
250
36
138
323
30
363
540
143
Voluntary Cleanup Programs Only
Cleanups Cleanups
Cleanups Completed Last Completed Since
Underway Fiscal Year Start of Program
44
98
83
2
2313
40
—
4
150
64
6
3
205
—
2
50
44
43
439
200
165
500
200
' " 5
•I
16
>
,i
;; o
1721
i
9
I
1
' 3
75
i
! 5
i
]
' 0
i
:ill
1
2
15
I
'' 7
'I
5
71
10
47
100
20
1
17
73 !
136
0
4454
20
—
3
300
11
0
4
39
— -----
2
250
35
18
283
20
500
40
1
(a) »includes only State "superfund" program cleanups
(b) = includes only voluntary program cleanups
Dash = no program
Blank = no data
62
-------
Table V-4: Actions Taken at Non-NPL Sites
All Hazardous Substance Cleanup Programs
(including Voluntary Programs)
Reg.
6
7
8
9
10
State
AR
LA
MM
OK
TX
IA
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
ffl
NV
AK
ID
OR
WA
Cleanups
Underway
60
5
48
52
502
30
587
103
3
41
12
12
241
9
22
188
1
129
1206
315
278
Cleanups
Completed Last
Fiscal Year
2
8
3
19
997
0
9
17
1
4
6
13
63
3
11
44
90
63
35
65
Cleanups
Completed Since
Start of Program
17
152
36
40
18994
0
111
141
1
6
12 (b)
824
6
44
220
520
419
119
348
Voluntary Cleanup
Cleanups
Underway
2
0
0
52
445
0
50
3
36
1
—
—
9
—
21
1
212
34
Programs Only
Cleanups Cleanups
Completed Last Completed Since
Fiscal Year Start of Program
0
0
19
55
0
12
1
4
3
10
13
23
49
0
0
40
158
0
30
1
6
12
_
6 .
_
16
55
87
176
(a) = includes only State "superfund" program cleanups
(b) = includes only voluntary program cleanups
Dash = no program
Blank = no data
63
-------
Table V-5: Program Organization
Summary
Program staff levels range from 2.5 FTE staff members to 512.
Five States reported program staff levels at or below ten FTE .
The overall program stafflevel reported was 3,474 FTE, down from 3,585 in 1995.
\
Total legal support was 206 FTE attorneys, down from 211 in 1995.
The seven States reporting ten or more FTE attorneys accounted for more than half of the total
number of attorney positions.
Eighteen (18) States rely solely on the responsible agency for legal support.
64
-------
Table V-5: Program Organization
Reg. State
ME
MA
Agency Name
Environmental Protection
Department of
Environmental Protection
Department of
Environmental Protection
FTE Staff FTE
Water Management Bureau, Permitting
Enforcement and Remediation Division
Bureau of Remediation and Waste
Management, Division of Remediation
Bureau of Waste Site Cleanup
42/51
26/27
203/230
Office of the Attorney General;
DEP Counsel to the Commissioner
Office of the Attorney General
Office of the Attorney General;
TW.P Offif-B nf CJpnBral rVnineol
3
1.5
21
NH Department of
Environmental Services
RI Department of
Environmental Management
VT Agency of Natural Resources
NJ Department of
Environmental Protection
NY Department of
Environmental Conservation
PR Environmental Quality
Board
DE Department of Natural
Resources and
Environmental Control
DC Department of Consumer
and Regulatory Affairs
MD Department of Environment
PA Department of
Environmental Protection
VA Department of
Environmental Quality
WV Department of Commerce,
Labor and Environmental
Resources
AL Department of
Environmental Management
FL Department of
Environmental Protection
GA Department of Natural
Resources
KY Department for
Environmental Protection
MS Department of
Environmental Quality
NC Department of Environment
and Natural Resources
Waste Management Division, 25 / 25
Hazardous Waste Remediation Bureau
Bureau of Environmental Protection, 20 / 20
Office of Waste Management
Department of Environmental 14/14
Conservation, Waste Management
Division, Hazardous Materials Program '
Division of Publicly Funded Site 512/512
Remediation, Site Remediation Program
Division Of Environmental 309 / 309
Remediation
Division of Air and Waste Management, 29/31
Site Investigation and Restoration Branch
Environmental Regulation
Administration, Pesticides, Hazardous
Waste and Underground Storage Tank Division
Waste Management Administration, 36/41
Environmental Restoration and
Redevelopment Program
Bureau of Land Recycling and Waste 1201 -
Management, Division of Land
Recycling and Cleanup Programs
Division of Special Programs, Office of 17 / 17
Federal Facilities Restoration and Superfund
Division of Environmental Protection,
Office of Waste Management
Land Division, Hazardous Waste Branch 28/30
Division of Waste Management, Bureau 108 / -
of Waste Cleanup
Environmental Protection Division, 39 / 42
Hazardous Waste Management Branch,
Hazardous Sites Response Program
Division of Waste Management, 29/29:
Superfund Branch
Office of Pollution Control, Hazardous 10/11
Waste Division, Superfund Branch
Division of Waste Management, 29.75 / 29,75
Superfund Section
Department of Justice 4.5
DEM Office of Legal Services 2
Office of the Attorney General; 3
DEC Environment Division; DEC
Waste Management Division
Department of Laws and Public 18
Safety
Department of Law; DEC Division 20
of Environmental Enforcement
Department of Justice 1
Corporation Counsel
Office of the Attorney General 2
DEP Office of Chief Counsel 12
Office of the Attorney General 0.25
DEP Office of Legal Services 1
ADEM Office of General Counsel 0.1
DEP Office of General Counsel 2
State Law Department 1
Office of Legal Services 2.5
Office of the Attorney General; 4
DEQ Legal Staff
Office of the Attorney General 1.5
65
-------
Table V-5: Program Organization
Reg State
4 SO
TN
5 IL
IN
MI
MN
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
8 CO
MT
Accncv Name
Department of Health and
Environmental Control
,
Department of Environment
and Conservation
Environmental Protection
Agency
Department of
Environmental Management
Department of
Environmental Quality
Pollution Control Agency
Environmental Protection
Agency
Department of Natural
Resources
Department of Pollution
Control & Ecology
Department of
Environmental Quality
Environment Department
Department of
Environmental Quality
Natural Resource
Conservation Commission
Department of Natural
Resources
Department of Health and
Environment
Department of Natural
Resources
Department of
Environmental Quality
Department of Public Health
and Environment
Department of
Environmental Quality
FTE Staff FtE
Program Office Employed/Authorized Legal Support Office Attorneys
Bureau of Land and Waste
Management, Division of Site
Assessment and Remediation
Bureau of Environment, Division of
Superfund
Bureau of Land, Division of Remedial
Management
Office of Environmental Response
Environmental Response Division
Hazardous Waste Division
Division of Emergency and Remedial
Response
Bureau for Remediation and
Redevelopment
Hazardous Waste Division, Inactive
Sites Branch
Office of Waste Services, Inactive and
Abandoned Sites Division
Water and Waste Management
Division, Groundwater Quality Bureau,
Superfund Oversight Section;
Assessment and Abatement Section
Waste Management Division, Site
Remediation Section
Office of Waste Management, Pollution
Cleanup Division
Environmental Protection Division,
Land Quality Branch, Solid Waste Section
Bureau of Environmental Remediation,
Division of Environment, Remediation
Section and Restoration Section
Division of Environmental Quality,
Hazardous Waste Program
Air and Waste Management Division,
Superfund Section
Hazardous Materials and Waste
Management Division
Hazardous Waste Site Cleanup Bureau,
Remediation Division, Site Response
Section
45/45
65/74
105/105
58/71
234/241
80/ -
150 / -
68 / 100
10/12
34/34
23.5/27.5
18/22
106/107
11.5/11.5
46/46
51/53
10.5/10.5
18.5 / -
22/30
DHEC Office of General Counsel
1
Office of the Attorney General;
DEC Office of General Counsel
Division of Legal Counsel
I
Office of Legal Counsel
Department of the Attorney
General
i
Office of the Attorney General
I
Office of the Attorney General;
OEPA Legal Office
Office of the Attorney General
ADPC&E Legal Division
Office of Legal Affairs and
Enforcement
j
Office of General Counsel
I
ii
DEQ Office of the Executive
Director/ Office of General Counsel
1
Office of Legal Services, TNRCC
Legal Services Division
DNR Compliance and
Enforcement Bureau
i
KE>HE Office of Legal Services
»
J
Office of the Attorney General
DEQ legal staff
Office of the Attorney General
i
DEQ L"egal Unit
1.5
2
7
2
8
2
11.7
3.5
1
1
0.5
1
7
0.5
3
2
0.5
10
4
ND Department of Health
SD Department of Environment
and Natural Resources
UT Department of
Environmental Quality
Environmental Health Section, Division
of Waste Management
Division of Environmental Regulation,
Groundwater Quality Program
Division of Environmental Response
and Remediation
5 / - Office of the Attorney General
2.5 / - Office of the Attorney General
34 / 35 Office of the Attorney General;
DEQ Staff Attorneys
66
-------
Table V-5: Program Organization
Reg. State Agency Name
Program Office
FTE Staff
Employed/Authorized
Legal Support Office
FTE
Attorneys
8 WY Department of
Environmental Quality
9 AZ Department of Environment
Quality
CA Environmental Protection
Agency
HI Department of Health
NV Department of Conservation
and Natural Resources
10 AK Department of
Environmental
ID Division of
Environmental Quality
OR Department of
Environmental Quality
WA Department of Ecology
Hazardous Waste Permitting / 8/8
Corrective Action Program, Solid and
Hazardous Waste Division
Waste Programs Division, Superfimd 56 / 68
Programs Section
Department of Toxic Substances 298.2 / *
Control, Site Mitigation Division
Environmental Management Division, 18/18
Office of Hazard Evaluation and
Emergency Response
Division of Environmental Protection, 7.5 / -
Bureau of Corrective Actions,
Remediation Branch and Superfund Branch
Spill Prevention and Response Division, 40/42
Contaminated Sites and Remediation Program
Water Quality and Remediation Division, 30/30
Remediation Bureau
Waste Management and Cleanups 78 / 100
Division
Toxics Cleanup Program 144 / 144
Office of the Attorney General
Office of the Attorney General
Office of the Attorney General;
DTSC Office of Legal Counsel
and Criminal Investigations
Office of the Attorney General
Office of the Attorney General
Office of the Attorney General
Office of the Attorney General
Department of Justice
Office of the Attorney General
12
0.5
2.5
2.5
67
-------
Table V-6: Program Administration and Staff Funding Sources
i
Summary
, ! 1
• Twenty-seven (27) States reported using State general funds for program administration and
staff.
i
• Thirty-seven (37) States reported using State cleanup funds for program administration and staff.
• Forty-eight (48) States reported using Federal funds for program administration and staff
68
-------
Table V-6: Program Administration
State State
General Cleanup
and Staff Funding Sources
Federal
Grants/Cooperative
Reg. State
1 Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
2 New Jersey
New York
Puerto Rico
3 Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
4 Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
5 Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
Fund
75%
5%
7%
8%
30%
23%
1%
6%
10%
10%
10%
50%
21%
6%
X
X
75%
X
18%
30%
5%
5%
Fund
34%
28%
12%
10%
2%
55%
92%
10%
10%
100%
40%
90%
100%
40%
17%
X
66%
X
10%
65.5%
37%
25%
48%
64%
5%
60%
10%
Agreements
25%
61%
19%
80%
60%
75%
5%
7%
25%
80%
90%
90%
50%
10%
60%
50%
79%
77%
22.4%
34%
X
15%
34.5%
X
45%
75%
52%
55%
90%
36%
43%
'• 20%
90%
95%
Other Source
46%
40%
59%
10%
X
15%
10%
52%
15%
69
-------
Reg. State
Table V-6: Program Administration and Staff Funding Sources
State State Federal
General Cleanup Grants/Cooperative
Fund Fund Agreements
Other Source
8
10
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
25%
10%
15%
25%
12.5%
10%
31%
40%
70%
37.5%
85%
58.5%
20%
80%
70%
60%
65%
75% '.
90%
84%
75%
60%
30%
50%
15%
41.5%
80% '
14%
30%
30%
4%
1%
6%
70
-------
Table V-7: State Cleanup Funds
Summary
Fifty (50) States have cleanup funds; two States have no fund.
Thirty-three (33) States have more than one fund.
Total balance in all State funds at the end of FY97 was $1,413,193,848.70, including
$853,358,148.00 in authorized bonds in nine States.
The average State fund balance is $30,067,954.23, and the average State fund balance excluding
bond authorizations is $12,723,538.65 (4.3% higher than the $12,200,000 in 1995).
The median State fund balance (including bond authorizations) is $4,823,533.00, compared to
$3,970,000 in 1995 and $3,890,000 in 1993.
Fund balances, including bond authorizations, are distributed as follows (Idaho, Puerto Rico, and
Wyoming provided no information):
• Two States have no fund (Nebraska and the District of Columbia).
• Ten (10) States have balances less than $1M.
• Fourteen (14) States have balances of at least $1M but less than $5M.
• Six States have balances of at least $5M but less than $1OM.
• Eleven (11) States have balances of at least $ 1 OM but less than $5 OM.
• Six States have balances of $50M or more.
Additions to the States' funds during FY97 totaled $538,306,253.51 (45 States reporting), a
21.1% increase from 1995. Additions were distributed as follows:
• Nineteen (19) States added less than $1M.
• Eight States added at least $1M but less than $5M.
• Seven States added at least $5M but less than $1 OM.
• Eight States added at least $1 OM but less than $50M.
• Three States added $50M or more.
71
-------
i]!!,"1!1 "nil'1!" I! ' I !vi '
Reg. State
1 CT
ME
MA
NH
RI
VT
.
2 NJ
NY
PR
3 DE
DC
MD
PA
VA
WV
4 AL
Table V-7:
Fund Name
State Superfund
Urban Sites Remedial Action Fund
Uncontrolled Sites Bond Account
Uncontrolled Sites Fund
Oil and Hazardous Material Response Loan
Hazardous Waste Cleanup Fund
Environmental Response Fund
Environmental Contingency Fund
Petroleum Cleanup Fund
1981 Discharge Bond Fund
1986 Hazardous Discharge Bond
1996 Hazardous Discharge Bond
Corporate Business Tax (Publicly Funded)
Hazardous Discharge Capital Fund
Hazardous Discharge Site Cleanup
Spill Fund
1986 Environmental Quality Bond Act
1996 Clean Water/Clean Air Bond Act
(brownfield sites)
Hazardous Waste Remedial Fund
State Capital Funds
Environmental Emergencies Fund
Hazardous Substance Cleanup Fund
None
Brownfields Revitalization Incentive Fund
Hazardous Substances Control Fund
Voluntary Cleanup Fund
Hazardous Sites Cleanup Fund
Industrial Sites Cleanup Fund
Industrial Sites Environmental
Assessment Fund
State Environmental Emergency
Response Fund
Voluntary Remediation Registration Fee
Account
Hazardous Waste Emergency Response Fund
Hazardous Substance Cleanup Fund
' '<-;. 'I'!1,1 .,
i ! 'i : r
I'! 1 . | :ff I,,"
State Cleanup Funds
Fund
Balance
$8,000,000.00
$5,500,000.00
$3,800,000.00
$3,600,000.00
$86,300,000.00
$1,500,000.00
$50,000.00
$1,000,000.00
$3,800,000.00
$2,500,000.00
$26,400,000.00
$65,000,000.00
$0.00
$18,500,000.00
$1,000,000.00
$1,300,000.00
$401,000,000.00
$200,000,000.00
$7,347,265.00
$3,693,777.00
$8,400,000.00
$500,000.00
$105,000,000.00
$13,613,667.00
$1,412,817.00
$3,545,573.00
$24,208.00
$1,800,000.00
$615,590.00
72
Fund
Additions
$0^00
$320,894.00
$0.00
$1,400,000.00
$300,OOOiOO
$400,000.00
$5,000,000.00
$0.00
$14,800,000.00
$0.00
$21,500,000.00
$25,700,000.00
$0.00
$20,000,000.00
$61,634,168.00
$1,060,000.00
$5,170,000.00
$500,000.00
$138,000.00
$77,000,000.00
$15,661,333.00
$2,000,000^00
$1,078,680.00
$24,208.00
$488,000.00
$336,000.00
I
Total
II
Expended
' ' n
$1,562,807.00
$704,629.00
$7,100,000.00
$1,700,000.00
$300,000.00
$500,000.00
$4,700,000.00
$0.00
$14,800,000.00
$16,900,000.00
$21,300,000.00
$28,300,000.00
$102,000,000.00
$0.00
$56,777,048.00
$17,851.00
$2,670,000.00
i
' $0.00
1
$35,000,000.00
$1,895,128.00
$502,505.00
$123,422.00
$0.00
!
$758,585.00
$199,290.00
ii
.I
Total
Obligated
$1,250,000.00 :
$30,500,000.00
$0.00
$7,500,000.00
$681,000.00
$0.00
$800,000.00
$55,900,000.00
$42,100,000.00
$0.00
1 '
$0.00
$94,000,000.00
$0.00
$1,271,223.00
!
$300,000.00
$40,000,000.00
$1,183,550.00
$2,136,866.00
$501,401.00
$0.00
$758,585.00
$0.00
-------
Table V-7: State Cleanup Funds
Reg.
4
5
6
State
FL
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
Fund Name
Water Quality Assurance Trust Fund
Hazardous Waste Trust Fund
Hazardous Waste Management Fund
CERCLA Core
CERCLA PA/SI
Pollution Emergency Response Fund
State General Fund
Voluntary Evaluation Fund
Cost Share Trust Fund
Emergency Response Fund
Inactive Hazardous Sites Cleanup Fund
Appropriated Funds
Hazardous Waste Contingency Fund
Dry Cleaner Environmental Response Fund
Hazardous Waste Remedial Action Fund
Environmental Protection Fund
Hazardous Waste Fund
Environmental Management Special Fund
Hazardous Substance Response Trust Fund
Cleanup and Redevelopment Fund
Environmental Protection Bond
General Fund
Superfimd - (MERLA)
Hazardous Waste Cleanup Fund
Hazardous Waste Facility Management Fund
Voluntary Action Program Administration
Fund
Bonding Authority
Environmental Fund
Emergency Response Trust Fund
Remedial Action Trust Fund
Hazardous Waste Site Cleanup Fund
Assessment & Abatement State General Fund
Hazardous Waste Emergency Fund
Environmental Trust Fund
Hazardous Waste Fund
Fund
Balance
$24,529,984.40
$1,073,451.00
$4,000,000.00
$100,000.00
$50,000.00
$600,000.00
$0.00
$1,623,533.00
$500,000.00
$2,700,000.00
$104,000.00
$24,973,099.81
$1,978,275.66
$7,581,293.22
$1 1,400,000.00
$10,500,000.00
$24,511,554.00
$7,644,000.00
$5,300,398.00
$17,309,048.75
$12,451,966.74
$1,320,524.12
$20,500,000.00
$881,000.00
$119,461.00
$8,678,730.00
$1,693,995.00
$1,555.00
$1,658,259.00
$0.00
$17,168.00
Fund
Additions
$0.00
$19,076,061.00
$4,400,000.00
$100,000.00
$800,000.00
$23,000.00
: $0.00
$104,000.00
$1,000,000.00
$1,621,971.23
$5,322,167.17
$l,70p,000.00
$6,800,000.00
$6,75^,989.00
$14,600,000.00
$21,500,000.00
$10,000,000.00
$4,296,000.00
$12,885,204.18
$9,260,404.95
$390,911.69
$15,500,000.00
$14,050.00
$623,571.00
' $0.00
$230,800.00
$93,064.00
$0.00
$9,451.29
Total
Expended
$22,199,864.64
$17,589,411.00
$1,800,000.00
$300,000.00
$100,000.00
$1,500,000.00
$300,000.00
$80,000.00
$752,311.00
$6,000.00
$180,000.00
$104,000.00
$526,612.53
$249,834.97
$6,959,821.50
$3,800,000.00
$5,000,000.00
$4,284,337.00
$40,088,000.00
$5,144,005.00
$12,840,225.91
$3,036,836.48
$964,314.43
$2,567,000.00
$59,499.00
$141,675.00
$200,790.00
$228,569.00
$1,843.00
$284,364.27
$593,353.96
Total
Obligated
$10,560,503.39
$13,791,918.00
$2,100,000.00
$5,505,773.00
$180,000.00
$104,000.00
$20,676,029.00
$6,045.75
$2,500,000.00
$3,200,000.00
$9,603,548.00
$12,696,000.00
$70,597.00
$1,392,078.76
$75,162.18
$57,033.03
$6,000,000.00
$2,432,000.00
$0.00
$2,306,005.00
$675.00
$62,931.00
$282,549.35
$309,296.00
73
-------
Reg.
6
7
S
9
Table V-7:
State Fund Name
TX Hazardous and Solid Waste Remediation
Fee Account (Fund 550)
Spill Response Fund
IA Hazardous Waste Remedial Fund
KS Drycleaning Trust Fund
State Environmental Response Fund
State Water Plan Contamination
i Remediation Account
MO Hazardous Waste Fund (VCP)
Hazardous Waste Remedial Fund
NE None
CO Hazardous Substance Response Fund
Natural Resource Damages Fund
MT DirectPRPFund
Environmental Quality Protection Fund
Hazardous Waste/CERCLA Account
ND Environmental Quality Restoration Fund
SD Regulated Substance Response Fund
UT Environmental Voluntary Cleanup Fund
Hazardous Substances Mitigation Fund
WY Trust and Agency Account Fund
AZ Emergency Response Fund
Water Quality Assurance Revolving Fund
(1500)
Water Quality Assurance Revolving Fund
(4000)
CA Chaptered Bond
Hazardous Waste Control Account
HI Brownfields Program
Environmental Response Revolving Fund
Voluntary Cleanup Program
State Cleanup Funds
Fund Fund
Balance Additions
$69,707,181.00
$191,297.00
$1,060,868.00
$0.00
$0.00
$0.00
-$1,300,000.00
$11,000,000.00
$8,000,000.00
$13,763,918.00
$742,549.00
$160,000.00
$1,750,000.00
$0.00
$1,500,000.00
$70,919.00
$432,768.00
$309,505.00
$2,400,000.00
$11,121.00
$75,000.00
$0.00
$150,000.00
$35,380,165.00
$0.00
$347,926.00
$960,000.00
$616,000.00
$1,700,000.00
$3,100,000.00
$3,600,000.00
$20,386,034.00
$779,096.00
$200,000.00
$0.00
$400,000.00
$210,464.00
$1,705,000.00
$3,386,296.00
$75,000.00
$500,000.00
$150,000.00
Total
Expended
$41,242,559.00
$0.00
$650,391.00
$5ie,ooo.oo
$1,060,000.00
$2,700,000.00
'!
$1,200,000.00
1 $0.00
$6,630,940.00
$664,721.00
$16,953.00
"
$0.00
$500,000.00
1 1
$139,545.00
$1,272,231.00
$3,076,790.00
$228,000.00
i
$0.00
$7*11,096.00
' $0.00
Total
Obligated
$26,990,271.00
$6,650.00
$0.00
$6,500,000.00
$16,000,000.00
$37,040.00
$5,331.00
$0.00
$14,000,000.00
$1,588,879.00
NV Hazardous Waste Management Fund $1,000,000.00 $300,000.00 $300,000.00 $500,000.00
10 AK Oil and Hazardous Release Response Fund $24,051,666.00 $22,143,400.00 $19,822,684.00 $1,367,216.00
(Prevention Account)
Oil and Hazardous Release Response Fund $52,102,556.00 $79,400.00 $1,007,528.00 $329,339.00
(Response Account)
ID Governor's Trust Account
State Appropriation
74
-------
Table V-7: State Cleanup Funds
Reg. State Fund Name
10 OR Dry Cleaner Fund
Hazardous Substance Remedial Action Fund
Orphan Site Account
WA Local Toxics Control Account
State Toxics Control Account
Fund
Balance
$689,556.00
$5,638,648.00
$5,814,148.00
$37,459,348.00
$7,408,607.00
Fund
Additions
$630J,440.00
$6,842,255.00
$465,371.00
$18,791,346.00
$23,944^132.00
Total
Expended
$169,246.00
$5,889,847.00
$5,021,735.00
$15,639,662.00
$27,043,320.00
Total
Obligated
$0.00
$2,328,737.00
$5,536,648.00
Totals: $1,413,193,848.70 $538,306,253.51 $565,137,181.69 $447,984,880.46
75
-------
Table V-8: Expenditures and Obligation from State Cleanup Funds
I
Summary
• States spent a total of $565,137,181.69 from their State funds (six States not reporting and two
States have no fund).
• The average spent by States was $12,844,026.86, while the median spent by States was
$2,273,718.00 (compared to $2,345,000.00 in 1995).
• Total expenditures are distributed as follows:
- - 'i
• Sixteen (16) States spent less than $1M.
• Eleven (11) States spent at least $1M but less than $5M.
• Six States spent at least $5M but less than $10M.
• Nine States spent at least $1OM but less than $50M.
• Two States spent more than $50M.
• States obligated a total of $447,984,880.46 to be spent in the future (39 States reporting).
• States spent $136,538,032.92 on non-NPL sites (31 States reporting).
• The average spent on non-NPL sites was $4,404,452.67, while the median spent on non-NPL
sites was $1,411,776.00 (compared to $1,120,000.00 in 1995).
76
-------
Table V-8: Expenditures and Obligations from State Cleanup Funds
Reg. State
1 CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
Expended
Fund Name for NPL
State Superfund
Urban Sites Remedial Action
Fund
Uncontrolled Sites Bond
Account
Uncontrolled Sites Fund
Oil and Hazardous Material $3, 1 00,000.00
Response Loan
Hazardous Waste Cleanup $100,000.00
Fund
Environmental Response Fund $0.00
Environmental Contingency $0.00
Fund
Petroleum Cleanup Fund $0.00
1981 Discharge Bond Fund
1986 Hazardous Discharge
Bond
1996 Hazardous Discharge $0.00
Bond
Corporate Business Tax
(Publicly Funded)
Hazardous Discharge Capital Fund
Hazardous Discharge Site Cleanup
Spill Fund $0.00
1986 Environmental Quality Bond
Act
1996 Clean Water/Clean Air Bond
Act (brownfield sites)
Hazardous Waste Remedial Fund
State Capital Funds
Environmental Emergencies
Fund
Hazardous Substance Cleanup $0.00
Fund
None
Brownfields Revhalization
Incentive Fund
Hazardous Substances Control
Fund
Voluntary Cleanup Fund
Hazardous Sites Cleanup Fund $5,000,000.00
Industrial Sites Cleanup Fund $0.00
Industrial Sites Environmental $0.00
Expended
for non-NPL
$4,000,000.00
$1,600,000.00
$300,000.00
$500,000.00
$4,700,000.00
$0.00
$2,400,000.00
$2,670,000.00
$30,000,000.00
$1,895,128.00
$502,505.00
Total
Expended
$1,562,807.00
$704,629.00
$7,100,000.00
$1,700,000.00
$300,000.00
$500,000.00
$4,700,000.00
$0.00
$14,800,000.00
$16,900,000.00
$21,300,000.00
$28,300,000.00
$102,000,000.00
$0.00
$56,777,048.00
$17,851.00
$2,670,000.00
$0.00
$35,000,000.00
$1,895,128.00
$502,505.00
Obligated Obligated for Total
for NPL non-NPL Obligated
$0.00 $1,250,000.00 $1,250,000.00
$0.00 $30,500,000.0 $30,500,000.00
$0.00 $0.00 $0.00
$7,500,000.00 $0.00 $7,500,000.00
$681,000.00 $0.00 $681,000.00
$0.00 $0.00 $0.00
$0.00 $800,000.00 $800,000.00
$55,900,000.00
$42,100,000.00
$0.00 $0.00 $0.00
$0.00 $0.00 $0.00
$94,000,000.00
$0.00
$1,271,223.00
$0.00 $300,000.00 $300,000.00
$1,000,000.00 $39,000,000.00 $40,000,000.00
$0.00 $1,183,550.00 $1,183,550.00
$0.00 $2,136,866.00 $2,136,866.00
Assessment Fund
77
-------
Table V-8: Expenditures and Obligations from State Cleanup Funds
Reg. State
3 VA
WV
4 AL
FL
GA
KY
MS
NC
SC
TO
5 IL
IN
MI
MN
OH
Expended Expended
Fund Name forNPL fornon-NPL
State Environmental Emergency $0.00
Response Fund
Voluntary Remediation
Registration Fee Account
Hazardous Waste Emergency
Response Fund
Hazardous Substance Cleanup $22,320.00
Fund
Water Quality Assurance
Trust Fund
Hazardous Waste Trust Fund $6,153,577.00
Hazardous Waste $0.00
Management Fund
CERCLACore $0.00
CERCLAPA/SI $0.00
Pollution Emergency Response $0.00
Fund
State General Fund $0.00
Voluntary Evaluation Fund $0.00
Cost Share Trust Fund $752,3 1 1 .00
Emergency Response Fund $0.00
Inactive Hazardous Sites $0.00
Cleanup Fund
Appropriated Funds $0.00
Hazardous Waste Contingency $0.00
Fund
Dry Cleaner Environmental
Response Fund
Hazardous Waste Remedial
Action Fund
Environmental Protection Fund $2, 100,000.00
Hazardous Waste Fund $1,100,000.00
Environmental Management
Special Fund
Hazardous Substance Response $400,080.00
Trust Fund
Cleanup and Redevelopment
Fund
Environmental Protection
General Fund
Superfund-(MERLA) $203,101.00
Hazardous Waste Cleanup
Fund
Hazardous Waste Facility
Management Fund
Voluntary Action Program
Administration Fund
$123,422.00
$176,970.00
$11,435,834.00
$1,800,000.00
$0.00
$100,000.00
$250,000.00
$300,000.00
$80,000.00
$0.00
$6,000.00
$180,000.00
$104,000.00
$526,612.53
$1,700,000.00
$2,400,000.00
$3,884,257.00
$4,940,904.00
$964,314.43
78
total Obligated Obligated for Total
Expended forNPL non-NPL Obligated
$123,422.00 $0.00 $501,401.00 $501,401.00
$0.00 $0.00
i ":
$758,585.00 $758,585.00
$199,290.00 $0.00 $0.00 $0.00
$22,199,864.64 $10,560,503.30
i i ,,;
• . | ' ; y, -
$17,589,411.00 $9,664,359.00 $4,127,579.00 $13,791,918.00
I S ! T? it
$1,800,000.00 $6.00 $2,100,000.00 $2,100,000.00
$300,000.00
$100,000.00
$1,500,000.00
$300,000.00
$80,000.00
.. ' 1 f
$752,311.00 $5,505,773.00 $0.00 $5,505,773.00
$6,000.00 '
$180,000.00 $0.00 $180,000.00 $180,000.00
$104,000.00 '$6.00 $104,000.00 $104,000.00
$526,612.53 $1,252,661.00 $19,423,468.00 $20,676,029.00
$249,834.97
$6,959,821.50
$6,045.75
$3,800,000.00 $9,200,000.00 $2,100,000.00 $2,500,000.00
$5,000,000.00 $152,946.00 $2,500,000.00 $3,200,000.00
! 1 „'•!
$4,284,337.00 $288,461.00 $9,315,087.00 $9,603,548.00
$40,088,000.00
:
$5,144,005.00
$12,840,225.91
$3,036,836.48
$964,314.43
ii
$12,696,000.00
';
• i 1 .M1
$70,597.00
$1,392,078.76 $1,392,078.76
$75,162.18
$57,033.03 $57,033.03
.1.
... ! .. -:,!,!;,. ..i , J! 1
-------
Table V-8: Expenditures and Obligations from State Cleanup Funds
Reg.
5
6
7
8
State
WI
AR
LA
NM
OK
TX
IA
KS
MO
NE
CO
MT
ND
SD
UT
Expended
Fund Name for NPL
Bonding Authority
Environmental Fund
Emergency Response Trust Fund
Remedial Action Trust Fund
Hazardous Waste Site $0.00
Cleanup Fund
Assessment and Abatement $0.00
State General Fund
Hazardous Waste Emergency Fund $0.00
Environmental Trust Fund $136,473.27
Hazardous Waste Fund $47,155.00
Hazardous and Solid Waste
Remediation Fee Account
Spill Response Fund
Hazardous Waste Remedial
Fund
Drycleaning Trust Fund
State Environmental Response $0.00
Fund
State Water Plan Contamination $0.00
Remediation Account
Hazardous Waste Fund
Hazardous Waste Remedial $600,000.00
Fund
None
Hazardous Substance $1,200,000.00
Response Fund
Natural Resource Damages
Fund
Direct PRP Fund $6,491,160.00
Environmental Quality $0.00
Protection Fund
Hazardous Waste/CERCLA $16,953.00
Account
Environmental Quality
Restoration Fund
Regulated Substance
Response Fund
Environmental Voluntary $0.00
Cleanup Fund
Hazardous Substances $0.00
Expended
for non-NPL
$200,790.00
$228,569.00
$1,843.00
$147,891.00
$546,198.96
$960,000.00
$516,000.00
$1,000,000.00
$2,100,000.00
$139,780.00
$664,721.00
$0.00
$0.00
$0.00
Total Obligated Obligated for
Expended for NPL non-NPL
$1,200,000.00 $4,800,000.00
$2,567,000.00
$59,499.00 $0.00 $0.00
$141,675.00 $0.00 $0.00
$200,790.00 $1,925,000.00 $381,005.00
$228,569.00 $0.00 $675.00
$1,843.00 $0.00 $62,931.00
$284,364.27 $282,549.35 $0.00
$593,353.96 $138,964.00 $170,332.00
$41,242,559.00
$0.00
$650,391.00
$516,000.00
$1,000,000.00
$2,700,000.00 $5,000,000.00 $1,500,000.00
$1,200,000.00
$0:00
$6,630,940.100 $21,162.00 $15,878.00
$664,72LOO $0.00 $5,331.00
$16,953.00
$0.00 $0.00 $0.00
$500,000,00 $4,000,000.00 $10,000,000.00
Total
Obligated
$6,000,000.00
$2,432,000.00
$0.00
$0.00
$2,306,005.00
$675.00
$62,931.00
$282,549.35
$309,296.00
$26,990,271.00
$6,650.00
$0.00
$6,500,000.00
$16,000,000.00
$37,040.00
$5,331.00
$0.00
$14,000,000.00
Mitigation Fund
79
-------
Table V-8: Expenditures and Obligations from State Cleanup Funds
Expended Expended Total
Reg. State Fund Name for NPL for non-NPL Expended
Obligated Obligated for Total
forNPL non-NPL Obligated
10
\VY Trust and Agency Account
Fund
AZ Emergency Response Fund
Water Quality Assurance
Revolving Fund (1500)
Water Quality Assurance
Revolving Fund (4000)
CA Chaptered Bond $189,000.00
Hazardous Waste Control
Account
HI Brownfields Program
Environmental Response
Revolving Fund
Voluntary Cleanup Program
NV Hazardous Waste $0.00
Management Fund
AK Oil and Hazardous Release Response
Fund (Prevention Account)
Oil and Hazardous Release Response
Fund (Response Account)
ID Governor's Trust Account $120,000.00
State Appropriation $520,000.00
OR Dry Cleaner Fund $0.00
Hazardous Substance Remedial $0.00
Action Fund
Orphan Site Account
WA Local Toxics Control Account $3,533,389.00
State Toxics Control Account $200,000.00
$139,545.00
$1,272,231.00
$39,000.00
$711,096.00
$300,000.00
$169,246.00
$5,889,847.00
$0.00 $5,021,735.00
$12,106,273.00
$26,843,320.00
$139,545.00
$1,272,231.00
$3,076,790.00
$228,000.00
$0.00
$711,096.00
$0.00
$300,000.00
$19,822,684.00
$1,007,528.00
$169,246.00
$5,889,847.00
$5,021,735.00
$15,639,662.00
$27,043,320.00
$998,614.00
$590,265.00 $1,588,879.00
$0.00
$500,000.00
$0.00
$0.00
$0.00
$500,000.00
$1,367,216.00
$329,339.00
$0.00
$2,328,737.00
$5,536,648.00
Totals: S31,985,519.27 $136,538,032.92 $565,137,181.69 $48,811,483.35 $134,997,479.79 $447,984,880.46
80
-------
Table V-9: Sources of State Cleanup Funds
Summary
Significant sources of funds (greater than 20% of fund additions) are:
• Appropriations in 14 States (17 funds).
• Penalties and fines in 10 States (11 funds).
• Bonds in nine States (14 funds).
• Cost recoveries in 16 States (17 funds).
• Waste fees in 19 States (20 funds).
• Taxes in 14 States (19 funds).
• Interest in seven States (nine funds).
• Transfers in three States (four funds).
• Private funds in one State (one fund).
• User fees in 11 States (11 funds).
81
-------
Ree. State Fund Name
.Table V-9: Sources of State Cleanup Funds
A PE B CR WF TX I
CT State Superfund
Urban Sites Remedial Action Fund
ME Uncontrolled Sites Bond Account
Uncontrolled Sites Fund m
MA Oil and Hazardous Material Response Loan
NH Hazardous Waste Cleanup Fund
RI Environmental Response Fund S
VT Environmental Contingency Fund
Petroleum Cleanup Fund
NJ 1981 Discharge Bond Fund
1986 Hazardous Discharge Bond
1996 Hazardous Discharge Bond
Corporate Business fax (Publicly Funded)
Hazardous Discharge Capital Fund
Hazardous Discharge Site Cleanup
Spill Fund
NY 1986 Environmental Quality Bond Act
1996 Clean Water/Clean Air Bond Act
(brownfield sites)
Hazardous Waste Remedial Fund m
State Capital Funds S
PR Environmental Emergencies Fund
DE Hazardous Substance Cleanup Fund
DC None
MD Brownfields Revitalization Incentive Fund S
Hazardous Substances Control Fund S
Voluntary Cleanup Fund
PA Hazardous Sites Cleanup Fund
Industrial Sites Cleanup Fund
Industrial Sites Environmental Assessment Fund
VA State Environmental Emergency Response Fund
Voluntary Remediation Registration Fee Account
WV Hazardous Waste Emergency Response Fund
AL Hazardous Substance Cleanup Fund m
FL Water Quality Assurance Trust Fund
OA Hazardous Waste Trust Fund
KY Hazardous Waste Management Fund
MS CERCLACore m
CERCLA PA/SI m
Pollution Emergency Response Fund
State General Fund S
Voluntary Evaluation Fund
m
m
S
m
TR PF UF O
m
m
m
m
m
S
m
S •" Significant funding source (>20%) m = Minor funding source (<20%)
A: Appropriations PE: Penalties B: Bonds CR: Cost Recoveries WF: Waste Fees
TX: Taxes I: Interest TR: Transfers PF: Private Funds UF: User Fees O: Other Source
82
-------
Reg. State Fund Name
Table V-9: Sources of State Cleanup Funds
A PE B CR WF TX I
TR PF TJF O
4 NC
SC
TN
5 IL
IN
MI
MN
OH
WI
6 AR
LA
NM
Cost Share Trust Fund S m m
Emergency Response Fund S
Inactive Hazardous Sites Cleanup Fund S
Appropriated Funds S
Hazardous Waste Contingency Fund m S
Dry Cleaner Environmental Response Fund m m m m S
Hazardous Waste Remedial Action Fund S m S S m m
Environmental Protection Fund
Hazardous Waste Fund mS mSmmmmm S
Environmental Management Special Fund
Hazardous Substance Response Trust Fund m S S
Cleanup and Redevelopment Fund S mm m mm
Environmental Protection Bond S m
General Fund S m
Superfund - (MERLA) m S S m
Hazardous Waste Cleanup Fund m S S
Hazardous Waste Facility Management Fund S
Voluntary Action Program Administration Fund m S
Bonding Authority S
Environmental Fund m m m S m
Emergency Response Trust Fund S m
Remedial Action Trust Fund S m S S
Hazardous Waste Site Cleanup Fund S m S m
Assessment & Abatement State General Fund S m m
Hazardous Waste Emergency Fund S
S
m
m
m
S
OK Environmental Trust Fund
Hazardous Waste Fund
TX Hazardous and Solid Waste Remediation Fee
Account (Fund 550)
Spill Response Fund
IA Hazardous Waste Remedial Fund
KS Drycleaning Trust Fund
State Environmental Response Fund
State Water Plan Contamination Remediation
Account
MO Hazardous Waste Fund (VCP)
Hazardous Waste Remedial Fund
NE None
CO Hazardous Substance Response Fund
Natural Resource Damages Fund
m
m
S = Significant funding source (>20%) m = Minor funding source (<20%)
A: Appropriations PE: Penalties B: Bonds CR: Cost Recoveries WF: Waste Fees
TX: Taxes I: Interest TR: Transfers PF: Private Funds UF: User Fees O: Other Source
83
-------
Reg. State Fund Name
Table V-9: Sources of State Cleanup Funds
A PE B CR WF TX I ' TR PF UF O
8 Mf Direct PRP Fund
Environmental Quality Protection Fund
Hazardous Waste/CERCLA Account
ND Environmental Quality Restoration Fund
SD Regulated Substance Response Fund
UT Environmental Voluntary Cleanup Fund
Hazardous Substances Mitigation Fund
\VY Trust and Agency Account Fund
9 A2f Emergency Response Fund
Water Quality Assurance Revolving Fund
Water Quality Assurance Revolving Fund
C A Chaptered Bond
Hazardous Waste Control Account
HI Brownficlds Program
Environmental Response Revolving Fund
Voluntary Cleanup Program
NV Hazardous Waste Management Fund
10 AK Oil and Hazardous Release Response Fund
(Prevention Account)
Oil and Hazardous Release Response Fund
(Response Account)
ID Governor's Trust Account
State Appropriation
OR Dry Cleaner Fund
Hazardous Substance Remedial Action Fund
Orphan Site Account
WA Local Toxics Control Account
State Toxics Control Account
S' "
s
m S
m S m
S S S
s s
m
S
s
m
S « Significant funding source (>20%) m = Minor funding source (<20%)
A: Appropriations PE: Penalties B: Bonds CR: Cost Recoveries WF: Waste Fees
TO Taxes I; Interest TR: Transfers PF: Private Funds UF: User Fees O: Other Source
84
-------
Table V-10: Uses of State Cleanup Funds
Summary
Authorized uses for funds are:
• Site Investigation in 46 States (74 funds).
• CERCLA Match in 44 States (59 funds).
• Studies and Design in 44 States (70 funds).
• Operations and Maintenance in 44 States (66 funds).
• Removals in 47 States (74 funds).
« Victim Compensation in eight States (nine funds).
• Emergency Response in 48 States (68 funds).
• Grants to Local Governments in 18 States (27 funds).
• Remedial Actions in 42 States (70 funds).
• Program Administration in 44 States (74 funds).
• Natural Resource Restoration in 21 States (27 funds).
85
-------
Reg.
l
2
3
,i
Table
State Fund Name
CT
ME
MA
NH
RI
VT
NT
NY
PR
DE
DC
MD
PA
State Supcrfund
Urban Sites Remedial Action Fund
i.i. T ,
'".. "Mi. "','fiiii '
Uncontrolled Sites Bond Account
1," i ii ,::::
Uncontrolled Sites Fund
!'": '" i
Oil and Hazardous Material Response
Hazardous Waste Cleanup Fund
Environmental Response Fund
Environmental Contingency Fund
Petroleum Cleanup Fund
1981 Discharge Bond Fund
1986 Hazardous Discharge Bond
1996 Hazardous Discharge Bond
Corporate Business Tax (Publicly
Funded)
Hazardous Discharge Capital Fund
Hazardous Discharge Site Cleanup
Spill Fund
- '.,.• :
1986 Environmental Quality Bond Act
1996 Clean Water/Clean Air Bond Act
(brownficld sites)
Hazardous Waste Remedial Fund
State Capital Funds
1, IP » !"i'1ll
Environmental Emergencies Fund
Hazardous Substance Cleanup Fund
None
Bf ounfieldj Revitalization Incentive
Fund
Hazardous Substances Control Fund
Voluntary Cleanup Fund
Hazardous Sites Cleanup Fund
Industrial Sites Cleanup Fund
Industrial Sites Environmental
V-10:
SI
x
x
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Uses
CM
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
of State
SD
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Cleanup
j
1
1
Funds
O&M RM VC ER GLG
X
X
X
X
X
s
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X X
X X "'X
1 x x
X ' X
X X
X XX
X " X
x !! x
X X
; i i
X
X
X
X
x ;
ll
X X
1
X X
! x
X
li
X
X
!
X
' ' 1
II
'1
X X X
!! x
X
RA
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
' 111.
:;;
.'
• '!'
:i
1 nil!!
PA NRR O
X X
X X
1 ..('i'l
X X
X X
'ill :!'
X X
X
X X
X
X
X
X
X
X
X
X
X
X X
X X
;','.
X
X X
X X
X X
X X
X
Assessment Fund
VA State Environmental Emergency
Response Fund
Voluntary Remediation Registration Fee
Account
X
X
X
X
X
X
SI; Site Investigation CM: CERCLA Match SD: Studies and Design O&M: Operations and Maintenance
RM: Removals VC: Victim Compensation ER: Emergency Response GLG: Grants to Local Governments
RAt Remedial Actions PA: Program Administration NRR: Natural Resource Restorations O: Other
86
-------
Reg. State Fund Name
Table V-10: Uses of State Cleanup Funds
SI CM SD O&M RM VC ER GLG RA PA NRR O
3 WV
4 AL
FL
GA
KY
MS
NC
SC
TN
5 IL
IN
MI
MN
OH
WI
Hazardous Waste Emergency Response
Fund
Hazardous Substance Cleanup Fund
Water Quality Assurance Trust Fund
Hazardous Waste Trust Fund
Hazardous Waste Management Fund
CERCLACore
CERCLA PA/SI
Pollution Emergency Response Fund
State General Fund
Voluntary Evaluation Fund
Cost Share Trust Fund
Emergency Response Fund
Inactive Hazardous Sites Cleanup Fund
Appropriated Funds
Hazardous Waste Contingency Fund
Dry Cleaner Environmental Response
Fund
Hazardous Waste Remedial Action Fund
Environmental Protection Fund
Hazardous Waste Fund
Environmental Management Special
Fund
Hazardous Substance Response Trust
Fund
Cleanup and Redevelopment Fund
Environmental Protection Bond
General Fund
Superfund - (MERLA)
Hazardous Waste Cleanup Fund
Hazardous Waste Facility Management
Fund
Voluntary Action Program
Administration Fund
Bonding Authority
Environmental Fund
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
: X
X
X
X
X
X
X
X
X X
X
X
X
X X
X X
X
X
X
X
X
X
X X
X
X
X
X X
X X
X X
X X
X X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X
SI: Site Investigation CM: CERCLA Match SD: Studies and Design O&M: Operations and Maintenance
RM: Removals VC: Victim Compensation ER: Emergency Response GLG: Grants to Local Governments
RA: Remedial Actions PA: Program Administration NRR: Natural Resource Restorations O: Other
87
-------
Reg. State Fund Name
Table V-10: Uses of State Cleanup Funds
SI CM SD O&M RM VC ER GLG RA PA NRR O
6 AR Emergency Response trust Fund X X
Remedial Action Trust Fund X X X X X
LA Hazardous Waste Site Cleanup Fund X X X X X X
i
NM Assessment and Abatement State General XXX
Fund
Hazardous Waste Emergency Fund XXX XX
OK Environmental trust Fund X
Hazardous Waste Fund XX X XX
TX Hazardous and Solid Waste Remediation X X X X X X
Fee Account (Fund 550)
Spill Response Fund X X
7 IA Hazardous Waste Remedial Fund X X X X X XX
KS Drycleaning trust Fund X XXX X
State Environmental Response Fund
State Water Plan Contamination X X X X X X ]
Remediation Account
MO Hazardous Waste Fund (VCP)
Hazardous Waste Remedial Fund X X X X X X
NE None \
8 CO Hazardous Substance Response Fund X XX
Natural Resource Damages Fund
Mt DircctPRPFund X XXX X
Environmental Quality Protection Fund X X X X X X
Hazardous Waste/CERCLA Account X X X X X X
ND Environmental Quality Restoration X X X X
Fund
SD Regulated Substance Response Fund X XXX X
Ut Environmental Voluntary Cleanup Fund
Hazardous Substances Mitigation Fund X X X X X X
WY trust and Agency Account Fund X
9 AZ Emergency Response Fund X
Water Quality Assurance Revolving X X X X X
Fund (1500)
Water Quality Assurance Revolving
Fund (4000)
';, , !
SI: Site Investigation CM: CERCLA Match SD: Studies and Design O&M: Operations and Maintenance
RM! Removals VC: Victim Compensation ER: Emergency Response GLG: Grants to Local Governments
RA: Remedial Actions PA: Program Administration NRR: Natural Resource Restorations O: Other
88
x x . , ... x
xx
! ,
x
x
X X
XX X
X X
1 „: '
X
X X
X
XX X
X
X
X X
X X X
XXX
X
x x,
x
x, „. X
, III. ' J 1 •'
1 ::-
x
X
-------
Table V-10: Uses of State Cleanup Funds
Reg. State Fund Name
9 CA Chaptered Bond
Hazardous Waste Control Account
HI Brownfields Program
Environmental Response Revolving
Fund
Voluntary Cleanup Program
NV Hazardous Waste Management Fund
10 AK Oil and Hazardous Release Response
Fund (Prevention Account)
Oil and Hazardous Release Response
Fund (Response Account)
ID Governor's Trust Account
State Appropriation
OR Dry Cleaner Fund
Hazardous Substance Remedial Action
Fund
Orphan Site Account
WA Local Toxics Control Account
State Toxics Control Account
SI
X
X
X
X
X
X
X
X
X
X
X
X
CM SD
X X
X X
X
X X
X X
X X
X
X X
X
X
X X
O&M
X
X
X
X
X
X
X
X
X
X
RM VC
X
X
X
X
X
X
X
X
X
X
ER
X
X
X
X
X
X
X
X
X
GLG RA
X
X
X
X
X
X X
X
X
X X
X X
X X
X
PA NRR O
X
X
X
X X
X
X X
X X
X X
X X
X
X X
X X
SI: Site Investigation CM: CERCLA Match SD: Studies and Design O&M: Operations and Maintenance
RM: Removals VC: Victim Compensation ER: Emergency Response GLG: Grants to Local Governments
RA: Remedial Actions PA: Program Administration NRR: Natural Resource Restorations O: Other
89
-------
Table V-11: State Cleanup Policies and Criteria
Summary
Forty-seven (47) States employ risk assessment for carcinogens at specific sites, 22 by statute or
regulation and 25 by policy or on an ad hoc basis.
Forty-seven (47) States employ risk assessment for noncarcinogens at specific sites, 22 by statute
or regulation and 25 by policy or on an ad hoc basis.
Forty-four (44) States reference background levels, 24 by statute or regulation and 20 by policy
or on an ad hoc basis.
Forty-seven (47) States apply surface water quality criteria in determining cleanup levels, 39 by
statute or regulation and eight by policy or on an ad hoc basis.
Forty-eight (48) States apply MCLs and/or MCLGs, 40 by statute or regulation and eight by
policy or on an ad hoc basis.
Thirty-nine (39) States apply groundwater standards, 34 by statute or regulation and five by
policy or on an ad hoc basis.
Thirty-four (34) States apply soil standards to determine cleanup levels, 19 by statute or
regulation and 15 by policy or on an ad hoc basis.
Forty-one (4l) States employ land-use based cleanup levels at specific sites, 20 by statute or
regulation and 21 by policy or on an ad hoc basis.
90
-------
Table V-11: State Cleanup Policies and Criteria
Reg. State
1 CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
VA
WV
4 AL
FL
GA
KY
MS
NC
SC
TN
5 IL
IN
MI
MN
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
8 CO
MT
Risk Water
Assessment Risk Assessment Background Quality
Carcinogens Noncarcinogens Levels Criteria
Stat./reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat./reg.
Stat/reg.
Stat./reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoe
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
MCLs/
MCLGs
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Ground
water
Standards
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Soil
Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Land-use Other
Based Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc Policy/ad hoc
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
91
-------
Table V-11: State Cleanup Policies and Criteria
Rc£. State
8 ND
SD
UT
\VY
9 AZ
CA
HI
NV '
10 AK
ID
OR
WA
Risk
Assessment Risk Assessment Background
Carcinogens Noncarcinogens Levels
Policy/ad hoc
Slat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/rcg.
Policy/ad hoc
Stat/reg.
Stat/rcg.
Policy/ad hoc
Policy/ad hoc
Stat/rcg,
Stat/rcg,
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Water
Quality
Criteria
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
MCLs/
MCLGs
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Ground
water
Standards
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Soil
Standards
Policy/ad hoc
. siat/reg.
: I
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
ii
: II ,:
Stat/reg.
Stat/reg.
i
Land-use
Based
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Other
Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
92
-------
Table V-12: State Cleanup Policies and Criteria for Voluntary Cleanup Programs
Summary
Forty-four (44) States employ risk assessment for carcinogens at specific sites, 25 by statute or
regulation and 19 by policy or on an ad hoc basis. ;
Forty-four (44) States employ risk assessment for noncarcinogens at specific sites, 25 by statute
or regulation and 19 by policy or on an ad hoc basis. !
Thirty-nine (39) States reference background levels, 25 by statute or regulation and 14 by policy
or on an ad hoc basis. :
Forty-two (42) States apply surface water quality criteria in determining cleanup levels, 34 by
statute or regulation and eight by policy or on an ad hoc basis,
Forty-two (42) States apply MCLs and/or MCLGs, 34 by statute or regulation and eight by policy
or on an ad hoc basis.
Thirty-five (35) States apply groundwater standards, 29 by statute or regulation and six by policy
or on an ad hoc basis.
Thirty (30) States apply soil standards to determine cleanup levels, 18 by statute or regulation
and 12 by policy or on an ad hoc basis.
Forty-one (41) States employ land-use based cleanup levels at specific sites, 24 by statute or
regulation and 17 by policy or on an ad hoc basis.
93
-------
Table V-1%: State Cleanup Policies and Criteria for Voluntary Cleanup Programs
ItlUi ail IMWii:
i cr
MB
MA
NH
RI t
VT
2 NJ
NY '
PR
3 DE
DC
MD
PA
VA
WV
4 AL
FL
OA
KY
MS
NC
SC
TN
5 IL
IN
MI
MM
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
HJ..&UC1 'i, illllii
RISK ':: :.;:; ,
Assessment Risk Assessment
Stat/rcg.
Policy/ad hoc
Stat/rcg.
Policy/ad hoc
Slat/rcg.
Policy/ad hoc
Stat/rcg.
• "<
Policy/ad hoc
Stat/rcg.
Stat/rcg.
Stat/rcg.
Stat/rcg.
Stat/rcg.
Policy/ad hoc
Stat/rcg.
Policy/ad hoc
Stat/rcg.
Policy/ad hoc
Stat/rcg.
Stat/rcg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/rcg.
Policy/ad hoc
Stat/reg.
Stat/rcg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
i iililijiir.:, I: ill ,i aiillB^^
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
.'!(|
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
JllilK^ iilcliliiiii.diiiiiS1 111:!
Background
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
."'Ililhl ILllillilllH 4,n Lilt llli!!i Jl,
Water
Quality
Criteria
Ground
MCLs/ water
MCLGs Standards
Stat/reg. Stat/reg.
Policy/ad hoc Policy/ad hoc
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
94
Lil',11 1 lift.!.!!!.!!"1' ,1, ',„! !|'l
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Soil
Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
I .
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
11
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
i 1
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Land-use Other
Based Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
-------
Table V-12: State Cleanup Policies and Criteria for Voluntary Cleanup Programs
Reg. State
8 CO
MT
ND
SD
UT
WY
9 AZ
CA
HI
NV
10 AK
ID
OR
WA
Risk
Assessment Risk Assessment Background
Carcinogens Noncarcinogens Levels
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Water
Quality
Criteria
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
MCLs/
MCLGs
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
;Ground
water
Standards
Stat/reg.
Stat/reg.
Policy/ad hoc
1 Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Soil
Standards
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Land-use
Based
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Other
Standards
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
95
-------
• Tl ' PI,"' f'1 fl1 ' " .'
fill'igi! , ! I" •• • ••; "I. .'|. , F",,.|1!
•'.. ":•!' "(i ",'j'l ..!;• '•: ' ,: ;?:!!;• " I1!!";,1 IF't1" '''•'("'•''I 'SI1!11'!1 "Mi:1,;1"
Table V-13: Public Participation
Summary
• Forty-one (41) States use a form of public participation.
•• > • i |
• Twenty-eight (28) States have statutory or regulatory requirements for some forms of public
participation.
• Eighteen (18) States solicit some forms of public participation as a matter of policy or on an ad
hoc basis.
i
1; ,./ , ;, ; N I
* Five States receive authorization for public participation from both statutes or regulations and
policies or on an ad hoc basis, while 23 States have only statutory or regulatory requirements,
and 13 solicit public participation strictly as a matter of policy or on an ad hoc basis.
• Thirty-nine (39) States provide public notification during site handling.
• Thirty-eight (38) States have provisions for public comment.
• Thirty-seven (37) States report provisions for public hearings/meetings.
• Nine States make grants available to citizen groups.
* Eight States have additional public participation provisions, such as advisory groups or document
availability, to assist in sight cleanups.
96
-------
Public
Reg. State Notice
i
2
3
4
5
6
7
CT
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
TX
IA
KS
MO
Stat/reg.
Stat/reg.
Stat/reg.
Stat./reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Table V-13: Public Participation
Citizen
Public Hearings/ Groups
Comment Meetings Grants Other
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat./reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc
Policy/ad hoc
Policy/ad hoc Policy/ad hoc
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc
Stat/reg. Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg. Policy/ad hoc
Stat/reg./ad
Policy/ad hoc
Stat/reg.
Advisory groups as needed
Citizen participation plans
Can hold informational meetings and
write press releases at any time
Community Action Groups
Some ad hoc participation
Stat./reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
97
-------
Reg. State
iiAit i, liiiil
Public
Notice
Table V-13: Public Participation
Citizen
Public Searings/ Groups
Comment Meetings Grants
Other
Other By
:7 ME '
8 CO Policy/adhoc
i..' MT Stot/reg.
ND Policy/ad hoc
SD Policy/ad hoc
UT Policy/ad hoc
WY Policy/ad hoc
9 AZ Stat/reg.
CA Stet/rcf
ffl Stat/reg.
NV
10 AK Pollcy/ad hoc
ID Policy/ad hoc
OR Stat/reg.
WA Stat/reg.
Policy/ad hoc Policy/ad hoc
Stat/reg. Stat/reg.
Policy/ad hoc Policy/ad hoc
Policy/ad hoc Policy/ad hoc
Policy/ad hoc
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc Policy/ad hoc Policy/ad hoc
Policy/ad hoc Policy/ad hoc
Stat/reg. Stat/reg.
Stat/reg. Stat/reg. Stat/reg.
Disclosure law
Document availability
Fact Sheets
Stat/reg.
Policy/ad hoc
Stat/reg.
98
-------
Table V-14: Public Participation for Voluntary Cleanup Programs
Summary
Thirty-seven (37) States use some form of public participation within the voluntary cleanup
program.
Twenty-eight (28) States have statutory or regulatory requirements for some forms of public
participation.
Thirteen (13) States solicit some forms of public participation £s a matter of policy or on an ad
hoc basis.
Four States receive authorization for public participation from both statutes or regulations and
policies or on an ad hoc basis, while 24 States have only statutory or regulatory requirements,
and nine solicit public participation strictly as a matter of policy or on an ad hoc basis.
Thirty-six (36) States report public notification during site handling within the voluntary cleanup
program.
Thirty-four (34) States report provisions for public comment within the voluntary cleanup
program.
Thirty-one (31) States report provisions for public meetings or: hearings within the voluntary
cleanup program.
Two States make grants available to citizen groups within the voluntary cleanup program.
Seven States have additional public participation provisions, such as advisory groups or
document availability, to assist in sight cleanups. ;
99
-------
Table V-14: Public Participation for Voluntary Cleanup Programs
Reg. State
"X ' CT"
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
VA
\VV
4 AL
FL
GA
KY
MS
NC
SC
TN
5 IL
IN
MI
MN
OH
WI
6 AR
LA
. NM
OK
TX
7 IA
KS
MO
Public
Notice
Stat/pot"
Stat/pol.
Stat/pol.
Stat/pol.
Policy/ad hoc
Policy/ad hoc
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Policy/ad hoc
Stat/pol.
Policy/ad hoc
Policy/ad hoc
Stat/pol.
Stat/pol.
Policy/ad hoc
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol
Stat/pol.
Policy/ad hoc
i", ' I'll!
Public
Comment
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Citizen
Hearings/ Groups
Meetings Grants
Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
Policy/ad hoc
Stat/reg.
Stat/reg. Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
Policy/ad hoc
100
1
Other
, ii .
Advisory groups as needed
11
Public Involvement Plans for certain
cleanups using site-specific standards
Local government participation
i
Community Action Groups
Citizen oversight committees
'
Ji!i' i i n
Other By
Stat/reg.
Stat/reg.
Policy/ad hoc
-------
Table V-14: Public Participation for Voluntary Cleanup Programs
Citizen
Public Public Hearings/ Groups
Reg. State Notice Comment Meetings Grants Other
Other Bv
7 NE
8 CO
MT
ND
SD
UT
WY
9 AZ
CA
HI
NV
10 AK
ID
OR
WA
Policy/ad hoc
Stat/pol.
Policy/ad hoc
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/pol.
Stat/reg.
Policy/ad hoc
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc Document availability
Stat/reg.
Stat/reg. Fact sheets
Stat/reg.
Stat/reg.
Stat/reg.
Policy/ad hoc
Stat/reg.
101
-------
Table V-15: Liability Standards
, , r • !,. 'i1 ' !
Summary
General
• Forty-three (43) States have retroactive liability.
• Thirty-two (32) States have strict, joint and several liability.
'!;.'", , i '
Culpability Standards
• Forty-one (41) States have strict liability.
• Eleven (l 1) States have a liability standard other than strict or do not specify standards.
Allocation Standards
• Thirty-six (36) States have joint and several liability; eleven of these also allow responsible
parties to seek apportionment.
• Five States have proportional liability.
• Eleven (11) States do not specify allocation standards or lack enforcement provisions.
102
ft ,' I I",. J, ',„ "In nl i 11 III I''!', I1 "JllHliJIJ1,' :« : ..lilfl'i J illm :'J! !
-------
Table V-15: Liability Standards
Joint and
Not
Reg.
i
2
3
4
5
6
7
State
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Retroactive
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Strict
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Several Proportional Other Specified
X
X
X
X
X
X X
X
X
X
X
X X
X X
X
X
X
X
X
X . X
X
X
X
X X
x :
X : X x
X
X
X
X X
x '• x
X
X
x . x
x :
1
103
-------
Table V-15: Liability Standards
Reg. State
Retroactive
Strict
Joint and
Several Proportional
Not
Other Specified
10
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
104
-------
Table V-16: Penalties and Damages Available under State Superfund Statutes
Summary
Twenty-five (25) States provide for punitive damages.
Twenty-two (22) States provide for treble damages.
One State provides for double damages.
Two States provide for one and one-half times damages.
Forty-eight (48) States provide for some type of civil penalty that relates to cleanup programs,
although a number of these are more directly related to hazardous waste or water quality
regulatory programs. !
105
-------
Table V-16: Penalties
Reg. State
and Damages Available under State Superfund Statutes
i
Punitive Damages Civil Penalties
1 Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
- Vermont
LI '
2 Now Jersey
NewYorlc
Puerto Rico
3 Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
4 Alabama
Florida
Georgia
.Kentucky"'
Mississippi
North Carolina
South Carolina
Tennessee
5 Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
11/2 Times
Treble
Treble
None
Treble
Treble
Treble
None
None
Treble
None
None
Treble
None
None
None
None
Treble
None
None
None
Treble
1 1/2 Times
Treble
Treble
Treble
None
None
None
Treble
Double (to PRPs):
Treble (to State)
None
None
Treble
Treble
$25,000 per day
None
$25,000 per day
None
$10,000 per day
$50,000; $25,000 per day for continuing violations
!„ ' ' 'I111'1 ' '! ' '! "'i'1'!!1 "!
$50,000 per violation
$25,000 per day
$25,000 per day per violation
$10,000 per day
$25,000 per day per violation
$25,000 per day per violation
$25,000 per day maximum; $5,666 per day minimum
$25,000 per day per violation
$25,000 per day per violation
$25,000 per day per violation
$50,000 per day for continued violations
$25,000 per day
$25,000 per day
$25,000 per day per violation
$25,000 per day for hazardous waste violations
$25,000 per day
$10,000 per day
$50,000 for first violation; $10,000 per day for each day of
continuing violations
$25,000 per day
$25,000 per day
$20,000 per day
$25,000 per day
$5,000 per day
$25,000 per day
$25,000 per day for PRP failure to provide requested
information
$10,000 per day for water quality violations; $15,000 per day
for discharge permit violations; $25,000 per day for
compliance order violations
$25,000 per day per hazardous waste violation; $10,000 per
violation for any other violation
$25,000 per day
$1,000 for failure to notify; $10,000 air and water violations
106
-------
Table V-16: Penalties and Damages Available under State Superfund Statutes
Reg. State Punitive Damages Civil Penalties
10
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
None
Treble
None
None
Double
None
None
None
None
Treble
Treble
Treble
None
None
None
Treble
Treble
$10,000 - $25,000 for hazardous waste; $10,000 for water
pollution; $5,000 for solid waste pollution
$1,000 per day
None
None
$10,000 per day judicial penalties; $1,000 per day
administrative penalties
$25,000 per day •
$10,000 per day
$10,000 per day
$10,000 per day; $25,000 per day for willful and knowing
violations
$5,000 per day
$25,000 per day per violation
$50,000 per day
$25,000 per day ,
$500 to $100,000 for first violation; No more than $10,000
per day for continued violations
$10,000 per day per violation
$10,000 per day
$25,000.00 per day
107
-------
Table V-17: Natural Resource Damages Authorities
i li •• 'J • i" " • • ;»x •' i''' '
Summary
Thirty-two (32) States have authority under State laws to recover NRDs for hazardous substance
sites.
• Seven States identify statutes of limitation applicable to NRD claims under State law.
108
-------
Table V-17: Natural Resource Damages Authorities
State
Reg. State Authority NRD Citation
Statute of
Limitations Length
1
2
3
4
5
6
CT
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
NC
SC
TN
EL
IN
Mt
MN
OH
WI
AR
Yes
Yes
Yes
No
Yes
No
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
No
No
Yes
No
No
Yes
No
Yes
Yes
No
No
Yes
Yes
No
Yes
Yes
Conn. Gen. Stat. Sec. 22a-6a
38 MRSA 1367
MGL c. 2 IE, Section 5 ! Yes
RIGL 23-19. 14 et seq. Also, 23-19. 1 et seq. ; No
NJSA 58:10-23.11 etseq. NJSA 50:10A-1 etseq.' Yes
Navigation Law, Environmental Conservation Law, Common Law No
and Nuisance Statutes
Law 81, sec. 6; Law 9, sec. 16 ;
7DEL C. Chapter 91, 7DEL C. Chapter 62 No
Ann. Code Md, Env. Art., Sec. 7-220(b) • No
35 P.S. Sec. 6020.507 -, Yes
VA Constitution, Art XI; Virginia Stat, Ch. 3.1, Sees. 62.1-44.34:18
& 62.1-44.15:11 (water law)
Fla. Statutes: 403.141, .726, .727, & 121 (noncoastal oil spills); Yes
253.04 (coral reefs); Ch. 376 (coastal oil spills and underground
storage tanks)
Mississippi Code Annotated 49-17-43(c)
South Carolina Pollution Control Act ':
68-21 1-1 17(b)(l), 68-212-114, 68-212-207 and 69-3-1 16
-'
Part 20 1 of Act 45 1 Yes
115B.04 Yes
Section 283.87
Arkansas Code Annotated Sections 8-4-103(b)(3) and (c); 8-6-204 No
3 years
10 years
20 years
4 years
6 years
6 years
(b)(3) & (c); 8-7-204 (b)(3) & (c)
109
-------
Table V-17: Natural Resource Damages Authorities
State Statute of
Reg. State Authority NRD Citation Limitations Length
6 LA
in:!
NM
OK
TX
7 IA
KS
"'•' MO
'!"' il
NE
8 CO
MT
ND
SD
UT
WY
9 AZ
CA
HI
NV
10 AK
ID
OR
WA
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes
No
Yes
No
No
No
': ''31
Yes
Yes
No
Yes
No
Yes
Yes
General provision in the Environmental Quality Act
OK Constitution Act 26 Section 4; 29 OK Statutes Section 7-40la
(fish and wildlife damages)
31 TAG 20.1-20.4, 20.10; OSPRA - Texas Natural Resources Code
40.107(c)(4)
Iowa Code 455B.392C
KSA65-171U.
Rev. Stat Mo. 644.056
Mont. Code Ann. Sect. 75-10-715
SDCL34A-2-75&34A-11-14 &34A-10
1 ' ,'. ' T
California Health and Safety Code 25352
H.R.S. 128D-4, 128D-5, 128D-6
.
Alaska Stat 49.04.040(5)
;: • . ; • !
Or. Rev. Stat 465.255, 466.890, 468B.395
70.1050 RCW, WAC 173-340-550(6)
No
No
No
No
No
No
No
Yes
Yes 3 years
No
No
No
110
-------
Table V-18: Natural Resource Damage Claims under State Law
Summary
Ten (10) States reported having recovered NRDs under State law.
Eleven (11) States reported having such claims currently pending under State law.
Ill
-------
•Mi"1 i '! " ! ', !ih ' '• '
Table V-18: Natural Resource Damages
Reg. State Successful Claims Amount Recovered
1 Connecticut
Maine 5 $1,500,000.00
Massachusetts 5 $23,600,000.00
New Hampshire
Rhode Island
Vermont
2 New Jersey 1 $455,000.00
Ne\v York 18 $38,600,000.00
Puerto Rico
3 Delaware 1 $5,000.00
District of Columbia
Maryland
Pennsylvania
Virginia
West ^firginia
4 Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
5 Illinois
Indiana
Michigan ' 2 $1,500,000.00
Minnesota 1 $91,000.00
Ohio
Wisconsin
6 Arkansas 1 $1,650,000.00
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas 15 $150,000.00
Missouri
Nebraska
8 Colorado
III, '•''
1 4
3
1
1 $340,000.00
" •" • " " 2 '
1 ' ii
3 $400,000.00
1 i. ' • i ; I
i
!
, , i . .
, i
i
1
1
i
i
i
• II
:: : |
; 11
, , I ,
"" 2 '
" 3
' ' I • •
il
' 1 $80,000.00
1
,. • • ; II
: | ;
11 4
•1
- il
112
-------
Reg. State
Table V-18: Natural Resource Damages under State Law
Successful Claims Amount Recovered Pending Claims Amount Pending
8
10
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
0
$0.00
1 $763,000,000.00
$0.00
$1,000,000.00
$0.00
113
-------
Table V-19: Natural Resource Damage Claims under CERCLA
7 Iff .;IBil ! > •' . . • . ^ • . ' ... , , I
:. • •,:: :,;„„ • •.•••,..:: j
Summary
» Seventeen (17) States reported having recovered NRDs under CERCLA.
» Fifteen (15) States have such claims pending under CERCLA.
114
iii i iiiiii
-------
Table V-19: Natural Resource Damages under CERCLA
Reg.
1
2
3
4
5
6
7
8
State
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Nebraska
Colorado
Successful Claims
4
5
2
0
8
0
1
0
1
12
6
3
3
1
2
2
5
Amount Recovered
$23,600,000.00
$2,500,000.00
$0.00
$9,119,115.00
$0.00
$600,000.00
$3,000,000.00
$3,800,000.00
$4,600,000.00
$220,000.00
$2,983,500.00
$200,000.00
$405,000.00
$5,700,000.00
Pending Claims Amount Pending
1
; 4
: 2 $500,000.00
2
: o $0.00
4
;
i 2 $3,000,000.00
: 4
; 3
: 0 $0.00
; 2
0
: i $210,000.00
; i $71,000.00
: 2
2
115
-------
Table V-19: Natural Resource Damages under CERCLA
Reg. State
Successful Claims Amount Recovered Pending Claims Amount Pending
8 Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
10 Alaska
Idaho
Oregon
Washington
0
$0.00
$37,000,000.00
$65,000,000.00
$50,000,000.00
1 $763,000,000.00
1
1
116
-------
Table V-20: Natural Resource Restoration
Summary
Fifteen (15) States reported at least 96 restoration activities underway, and at least 52 activities
completed using recovered NRDs.
Twenty-six (26) States reported that funds recovered under State laws could be used for
restoration, twenty-four for replacement, and eighteen for protection of natural resources.
Five States reported that they have mechanisms for public participation in connection with NRD
assessment and selection of restoration activities.
117
-------
Table V-20; Natural Resource Restoration
Authorized Uses of Recovered Funds Projects
Reg. State Restoration Replacement Protection Underway Completed Funds Expended
Public Participation
Assessment Restoration
CT
ME
MA
NH
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
.1 :
GA
KY'
MS
X
X
X
X
x
x
X
X
X
X
X
X
X
X
X
X
X
17
18
$23,600,000.00
i '
$500,000.00
i
$8,000,000.00
$38,600,000.00
, !
$400,000.00
ll
X
X
X
x
sc
TN
IL
IN
MI
MN
OH
X
X
X
X
X
X
X
X
X
X
X
6
19
1
3
20
' '
0
$6,000,000.00
' 1 1
$91,000.00
$2,983,500.00
X
LA
NM
OK
TX
IA
KS
MO
NE
X
X
X
X
X
X
X
X
X
X
X
X
X
X
15
$1,650,000.00
$165,000.00
X
118
-------
Table V-20: Natural Resource Restoration
Authorized Uses of Recovered Funds Projects
Public Participation
Reg.
8
9
10
State
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
Restoration Replacement Protection Underway Completed Funds Expended Assessment Restoration
XXX . XX
X X
XX 00 $37,000,000.00
XXX
XXX
X 2 $65,000,000.00
X X 10 4 $40,000,000.00
119
-------
Table V-21: Prpperty Transfer Provisions
Summary
Thirty-one (31) States report that they have mandatory property transfer provisions, up from 25
in 1995, 23 in 1993, and 18 in 1991. This total does not include States that simply maintain a
database of contaminated sites, nor States mat simply have residential transfer requirements,
unless they also have some other property transfer provisions.
Twenty (20) States have provisions that require deed recordations where hazardous sites have
been either discovered, listed, or cleaned up.
i
Twenty (20) States require disclosure by sellers to purchasers.
Three States require cleanup or cleanup commitments in connection with transfers or sales of
industrial establishments.
Twenty-four (24) States have disclosure requirements that apply to conveyances of residential
property.
Twenty-six (26) States maintain a data base or data bases to assist purchasers and other parties to
transactions in conducting environmental due diligence to determine whether sites have been
contaminated
120
-------
Table V-21: Property Transfer Provisions
Reg.
l
2
3
4
5
6
7
State
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Iowa
Kansas
Missouri
Record
On Deed
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Disclosure
Disclosure Before Investigate
Before Transfer ; Before
Transfer Residential Transfer
X X ; X
X '
X XX
1
X .
x :
X X
X
X
X
X X
X X '
X X :
X X
X XX
x ;
X
x
x
x x
X
X '
Cleanup
At
Transfer Database
X X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
121
-------
'-fill ''I'll!!!1 "f'i1" •'!' »' '<
:i JIB!'!!!'"! " iS'ilfi'lili!1'!
Table V-21: Property Transfer Provisions
Reg. State
7 Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
10 Alaska
Idaho
Oregon
Washington
Disclosure
Record Before
On Deed Transfer
x
x
X
X X
X X
X
X X
Disclosure
Before
Transfer
Residential
x
X
X
X
X
X
X
X
Investigate Cleanup
Before At
Transfer Transfer Database
• i
1
i i
1
x
• i :
i
ii
X
X
"X '" X
1
. , 1
i
!l
X
1111 x
122
-------
Table V-22: Voluntary Cleanup Authorities
Summary
• Forty-four (44) States have voluntary cleanup programs.
• Thirteen (13) States have established voluntary programs since 1995.
• The majority of State voluntary programs (approximately 33) were established by statute.
• Other States established their programs through regulations, policies, or guidance under existing
statutory authority.
123
-------
Table V-22: Voluntary Cleanup Authorities
Reg.
::..;•'
i;,
I:'-
,„.»..
•:, 2
3
4
;:, s
'in;
6
:,
in ', ' „
State
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
New Jersey
New York
Puerto Rico
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
HI I ir .ii i .
Established Authority
1995 Statute
1993 Statute
1 993 Statute and regulations
Statute
1993 Initially established
administratively in 1993;
established by statute in 1995
1992 Oversight of the Remediation
Contaminated Sites
1994 Guidance
1994 Initially as a policy in 1994;
became a statute in July 1995
1997 Statute
1995 Statute
1995 Statute
1996 Statute (July 1, 1996); Regulation
(July 1, 1997); Guidance Manual
(projected July 1, 1998)
1992 Informal; no VCP statute,
regulation, or policy exists; site-
specific settlement agreements
used
Informal
1996 Statute
1997 Statute
1987 Statute
1988 Guidance; legislation submitted
in 1998
1994 Statute
1985 Statute
1993 Statute
1994 Statute
1988 Statute
1994
1994, 1997 Statute
Informal
1996 Statute
(regulations in
development)
124
VCP Citation
Conn. Gen. Stat Sees. 22a'-133 (w)(x)(y) [P.A.
95-183 &P.A 95-190]
38 MRSA342 (15) and 38 MRSA343-E et seq.
MGL c. 21E (as amended in 1992) and the MCP, 310
CMR 40,0000 '
NHRSA 147-A, 147-B, 48*5
23-19.14
i
NJAC 7-26C
7-501 etseq., Annotated Code of Maryland,
Environment Article
35P.S. Sec. 6026.101 etseq.
Code of Virginia, 10.1-1429.1 through 1429.3
No citation unique to VCP; covered under general
authority of Hazardous Substance Cleanup Fund
Provisions within OCGA 12-8-20 & OCGA 12-8-96.3
(amends OQCA 12-8-90; limits third party liability)
i i
MS Code Annotated 17-17-54
NCGS130A-310
If passed by legislature, will be part of SC Hazardous
Waste Management Act (44-56-710 et seq. Article 7)
TCA 68-212-224
22.2(m) 1985, Section 58 1996
1C 13-25-5
Part 201 of Act 451
Minn.itat Ch. 115BJ.i7("l4)and 115B.175
Ohio Revised Code Ch. 3746
;,• ' s '<:""' ' '!'!,!,"
Wis. Stat. Ch. 292. 1 5 (Land Recycling Law); amended
in 1997 Wisconsin Act 27, effective July 1, 1998
General authority of ADPC&E Regulation 23 Section
26 and the Remedial Action Trust Fund
R.S. 30:2285
- i i i
:] ill
IB i,
ll'lll I1
-------
Reg. State
Table V-22: Voluntary Cleanup Authorities
Established Authority VCP Citation
6 New Mexico
Oklahoma
Texas
7 Iowa
1997
(program not
operational)
1996
1995
1997
Statute
Statute
Statute
Statute; regulations under
development
8
9
10
Kansas
Missouri
Nebraska
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
1996
1994
1995
1994
1995
1997
1992
1993
1997
1996
1996
1991
1993
Statute
Statute
Statute
Statute
Statute
Statute
Statute
Administratively established
using existing statutory authority
Statute
Informal
Policy
Statute
Legislative budget approval
Regulation
Voluntary Remediation Act NMSA74-4G-1
27AO.S. Supp. 1997 Sections 2-15-101 et seq.
Chap. 361 of Health and Safety Code & Regulation
Title 30 TX Administrative Code TAC Chapter 333
Iowa Code 455H
KSA65 -34,161 through65 -34, 174
Mo. Rev. Stat. 260.565
LB 1349
Colo. Rev. Stat. Sections 25-16-301
Mont. Code Ann. Sect. 75-10-730 to 75-10-738
Utah Code Ann. Sect. 19-8-101 etseq.
ARS 49-104(A)17,49-282.05, 49-285(B)
H.R.S. 128D
Land Remediation Rules (ID APA 16.01.18)
WAC 173-340-550 (7)
125
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Table V-23: Voluntary Cleanup Programs
Summary
Thirty-eight (38) States collect fees or seek reimbursement from voluntary program participants.
Fiye States (Florida, Georgia, Illinois, Michigan, Nevada) do not collect fees or seek
reimbursement but instead fund their programs through other sources, including their State
general funds.
Approximately 37 States define eligibility for their voluntary programs by types of volunteers
and/or type of sites.
Only seven States (Alaska, Michigan, Minnesota, Nebraska, Nevada, Oregon and Pennsylvania)
do not categorically exclude certain types of sites or volunteers.
Virtually all States provide incentives for participating in their voluntary programs. For example,
at least 40 States provide some form of liability relief.
126
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Table V-23: Voluntary Cleanup Programs
Reg. State State Funded By Participation Fee Eligibility Incentives
CT
PA
AL
Fees, General Fund,
Core Program, and
VCP Funding.
ME Fee for services.
MA Permit fees,
compliance fees,
and other operating
funds.
NH
RI General funds.
VT
NJ Remediating party
pays Department
oversight fees.
NY Volunteer pays
oversight costs.
PR
DE Cost recovery
from participants
in the program.
DC
MD User fees, State
funds, and
Federal funds.
Hazardous Sites
Cleanup Fund
(HSCF).
VA EPA grant and
registration fees.
W V Initial fee and
hourly rate
multiplied by 2.5
overhead.
100% cost
recovery
guaranteed in
enforceable
settlement
agreements.
$2,000 plus a flat Municipalities, owners on State list, and owners
amount based on value of establishments (as defined in property
of property if the State transfer law) are eligible to participate. Sites
oversees the cleanup. under State orders are ineligible.
$500 and any
additional costs.
Varies, depending on
the type of site.
$1,000.
Direct billing dollars
per hour.
Negotiated.
Actual costs incurred
in oversight, with
initial fee of $5,000.
$6,000, unused
portion is refunded;
over $6,000, the
Department charges
the user.
$250.
$5,000 or 1% of
remediation (lesser of
the two).
Flat fees of $1,000,
$3,000 or $5,000;
hourly fees after
Voluntary Agreement
is signed.
Reimbursement of
State's actual costs.
Virtually any entity, including responsible
parties are eligible.
Anyone is eligible. Any site that is not
adequately regulated by a different cleanup
program (such as NPL sites) are eligible.
All non-NPL sites are eligible.
Any performing party is eligible. All types
of non-NPL sites are eligible.
Any interested party who wishes to remediate
all or part of a site is eligible. Priority sites and
sites under an enforcement action are ineligible.
Anyone other than a responsible party is
eligible. All contaminated sites other than
Class 2 inactive hazardous waste sites and
NPL sites are eligible.
Any person is eligible — owner, prospective
buyer, developer, etc. The site must be
financially viable. All sites are eligible
except Corrective Action Sites. Sites that
pose an imminent danger may not be eligible.
Purchasers with no previous connection to
property are eligible. Persons convicted of
violation of a hazardous waste law or regulation
are ineligible. NPL sites, sites under active
enforcement, and TSD facilities are ineligible.
Any landowner is eligible. All contaminated
properties are eligible.
Owners and operators of contaminated sites
are eligible. All sites are eligible, except
those where remediation is mandated under a
Federal or State regulatory program.
All sites are eligible, except those with
unilateral orders or those on, or being
proposed for, the NPL.
Anyone is eligible. Sites must have low enough
contamination level that potential exists to
achieve effective and efficient cleanup. Sites
must be inactive and may not be on the NPL or
have enforcement actions pending for a
hazardous substance or waste issue. RCRA sites
are ineligible.
Covenant not to sue [22a-133(aa)(bb)], which
provides that the State will not take action to require
remediation (or other action related to the discharge)
provided that statutory conditions are met.
Under 38 MRSA343-E(1) and (2), parties may
receive protections from liability (enforcement
and contribution) for contamination which is
remedied to the satisfaction of the Department.
Incentive is to be able to clean up a site as quickly
as possible, ability to achieve clear endpoints, etc.
Covenant not to sue for non-responsible performing
parties, as well as contribution protection.
Parties can set own schedule, parties may withdraw,
upon completion the Department plus party enter into
a covenant not to sue which carries with the property.
Cleanup to levels safe for intended use; protection
from future liability for contaminants addressed
(liability release).
Release from liability for prospective buyers,
provided that the site is cleaned up and the
Department has issued a certificate of completion.
Streamlined process, mandatory deadlines for agency
determinations, no further requirements determination,
certificate of completion. For inculpable persons:
release of liability except for new or exacerbated
contamination caused by the purchaser.
Relief from liability under State law for site
remediation, including citizen suits and
contribution actions.
No Further Action - Certificate of Satisfactory
Completion of Remediation issued, which
provides immunity from enforcement action
under State law.
Predictability; Voluntary Remediation Agreement;
Certificate of Completion.
Reduced regulatory oversight and cost. Increased
speed. Possibility of earning "No Further Action"
letter.
127
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Table V-23: Voluntary Cleanup Programs
Ree. State State Funded By Participation Fee Eligibility
Incentives
PL General budget
OA Hazardous Wasto
™ Trust Fund.
KY
MS S500 met fee;
respondent pays alt
program costs.
KG Appropriations,
$2,000 audit fee,
and S500 fee for
"No further
Action" letter.
SQ Parties pay
"i;-*;' oversight costs]
TN Participation fee,
EPA Core Grant,
reimbursement of
oversight costs by
participant
IL Fees of hazardous
vyaste treatment
and disposal.
IN Applicant
reimbursement to
IDEM.
MI Bonds and State
General Fund.
MN State appropriation
through Supcrfund
and EPA
cooperative
agreement
OH User fees.
WI User foes.
AR Document review
foe.
None.
N/A.
$500 user fee and all
of DEQ's direct &
indirect costs.
$2,000 audit fee
(partially refundable
if not used) and
additional $500 for
"No Further Action"
letter.
Under Article 7,
actual costs; currently,
RPs must pay actual
costs, butnon-RPs'
fees are negotiable.
$5,000.
$1,000 application fee.
N/A.
$92/hour.
Anyone is eligible. NPL sites are ineligible.
RPs and persons affiliated with an RP or the
site are ineligible. Anyone else is eligible. Sites
must be in a state of disuse or abandonment and
be on the Hazardous Site Inventory.
Anyone not currently regulated under a
Federally mandated program (e.g., RCRA) is
eligible. Sites must be polluted or potentially
polluted uncontrolled sites.
The program is open to owners, operators,
potential purchasers, RPs, and other
interested parties. Sites regulated by another
program are ineligible.
No person is categorical excluded, but the
agency has the discretion to reject contracts. All
sites are. eligible, except petroleum-only sites,
NPL sites, and permitted sites where assessment
and remediation is required by permit.
The program is open to any willing and able
party, including PRPs, impacted third parties,
banks having taken oversights, buyers,
sellers, and lending institutions. NPL sites
are ineligible. Petroleum sites may be
handled through the program if another
applicable hazardous substance is also present.
All sites, except NPL, RCRA, and LUST
sites, are eligible.
Anyone who wants to enter — owner,
developer, or municipality — is eligible
except those under active enforcement. Sites
that pose an imminent threat are ineligible.
All PRPs and all sites are eligible.
Any party willing and able to conduct work
in a timely manner and reimburse MPCA for
oversight costs is eligible. All types of sites
are eligible.
None.
Range of fees depends
upon the site.
S250.
S63/hour.
LA To be determined. To be determined.
NPL sites and sites are under Ohio
enforcement actions are ineligible.
Potentially Responsible Parties not being
regulated under other authority are eligible.
All contaminated sites are eligible, except
NPL sites and large-scale cleanups.
The program is open to RPs, except those
under enforcement action by ADPC&E.
Eligibility will be limited to prospective
purchasers, and responsible parties who remove
all discharges and restore the site to residential
risk levels. Site eligibility will be limited to
contaminated commercial or industrial facilities.
Limitation of liability; no cost recovery actions
for monies previously spent by the State;
limitation of liability to third party civil claims
for pre-existing releases.
Expedited site review; "No Further Action" letter
when appropriate measures have been taken and
approved.
Property transfer, liability limit, "No Further
Action" letter (costs $500).
Covenant not to sue for successful completion of
work; contribution protection for non-RPs.
"No Further Action" letter; state will not
promulgate lien or notice of hazardous substance
on property deed; exemption from public
hearings; site not placed on list; payment of
orphan shares by State.
Issuance of No Further Remediation Letter releasing
PRP from both cost recovery and State enforcement.
IDEM issues a Certificate of Completion,
Governor issues a Covenant Not to Sue.
Protection for historical releases once remedial action
plan is complied with. No protection for new events.
Technical assistance, a variety of liability
assurances, and financial assistance.
Covenant not to sue, variety of tax credits, low
interest loans, and grants.
Financial incentives and liability exemptions.
Limitation of liability for program participants.
Exemption of liability for disposal or discharge of
hazardous substance or waste; certificate of
completion issued by the Department.
128
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Table V-23: Voluntary Cleanup Programs
Reg. State State Funded By Participation Fee Eligibility Incentives
NM Application fee
and oversight fee.
Not yet calculated.
OK Reimbursed by
participant.
TX User fee.
7 IA Reimbursed by
volunteer.
KS Reimbursement.
MO Fees and
appropriations.
NE $5000 application
fee.
Actual costs.
$1,000 initial fee and
$74/hour.
$7,500 cap on
reimbursement; initial
$750 application fee.
$200 application fee;
up to $5000 initial
deposit; 3 tiers -
$1,000, $2,500, and
$5,000 - based on
extent of contamination.
$200 application fee
and $5,000 deposit.
$5,000.
Eligibility is limited to current and prospective
owners and operators. Individuals with a
history of violating environmental laws are
ineligible, as are sites or persons under existing
permit or enforcement action (State or Federal)
or pending enforcement action. Some heavily
contaminated sites will be excluded.
The program is open to anyone except
individuals not in substantial compliance with
a state or Federal order relating to regulated
substances, persons with a history of
uncorrected noncompliance, or persons under
EPA cleanup order. Sites may not be on the
NPL or under EPA cleanup order.
Anyone is eligible, but owners and operators
still retain liability. The program is open to
all types of commercial/industrial sites
ranging from drycleaners to large
petrochemical facilities, except those
subject to commission permit or order.
While eligibility criteria still under
development, UST sites, NPL sites and AFOs
will be eligible.
All low to medium risk contaminated sites
are eligible. NPL sites, RCRA sites, and sites
under enforcement action are ineligible.
Anyone is eligible. All non-NPL or NPL-
caliber sites and non-RCRA sites are eligible.
Anyone is eligible. All sites are eligible.
8 CO Application fees. $2,000.
MT Cost recovery. Actual costs.
ND
SD
UT Application $2,000.
fees/additional
participant funding.
WY
AZ Reimbursement by Fee.
volunteer for costs.
All property owners are eligible. A site is
ineligible if it is: on or proposed for the
NPL; RCRA permitted; and/or, subject to
state RCRA, UST, or CW A orders.
No person or entity is ineligible under the
statute, but 75-10-732 gives the Montana
DEQ the discretion to accept or deny
applications. All non-NPL sites are eligible.
Anyone is eligible. NPL, RCRA corrective
action, and enforcement sites are ineligible.
Sites not subject to immediate regulation,
NPL, or state-lead cleanup.
Liability protection during and following the
Voluntary Remediation Agreement; Certificate of
Completion for owner/operator; covenant not to
sue for third party purchaser; lender liability.
Certificate of completion, certificate of no action
(includes liability protections for cleaned up
portions of the site), tax incentives, job act
incentives, advice/document review.
Under the VCP, all non-responsible parties,
including owners and lenders, are released from
liability to the State for contamination occurring
prior to the date of issuance of the completion
certificate.
Letter of indemnification from State to volunteer
for any future claims.
"No Further Action" letter.
"No Further Action" letter, MOA with EPA.
"No Further Action" letter.
Approval letter that states site does not pose risk.
Possible letter from EPA.
Successfully remediated properties may receive
an enforcement stay and/or a "No Further Action"
letter.
Participants in the VCP who are not PRPs under
the Hazardous Substances Mitigation Act may be
eligible to receive a letter from the State
acknowledging that the site has been cleaned, and
providing a release from future liability.
Expedited review of remedial actions and single
point of contact.
129
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Reg. State State Funded By Participation Fi
Table V-23: Voluntary Cleanup Programs
EligibiUty Incentives
By Project
proponent (foo for
service).
HI Reimbursement by
volunteer.
NV Hazardous Waste
Management Fund.
10 AK Reimbursement by
volunteer.
ID Private parties
conducting clean
up pay for State,
OR Reimbursement by
volunteer.
WA Participant
reimbursement to
State,
Actual costs, not fee.
$1,000
nonrefundable
application fee and
$5000 deposit
No.
Reimbursement after
state expenses exceed
$1,000.
S200 application fee.
Initial $2,000 deposit
if anticipated that PA
will indicate "No
Further Action";
$5,000 if action/inv
likely.
Hourly fee charged
against initial $500
deposit, and
thereafter.
Federal facilities, Federal Superfund sites,
State Superfund Sites, sites outside DTSC
jurisdiction, and sites with known or suspected
soil and/or groundwater contamination.
All releases or threats of releases are eligible
for response under 128D-4. NPL sites,
enforcement sites, corrective actions sites,
imminent and substantial threats, and sites
with significant public interest are ineligible.
Anyone is eligible. All sites are eligible.
Anyone is eligible. All sites are eligible.
Streamlined Program Cooperative working
relationship, tailored to each site/project (may
terminate agreement with 30 days notice for any
reason); "No Further Action" letter/Certificate of
Completion.
1 ' ' "
Letter of completion issued with in 30 days after
cleanup; completion recorded on property deed,
and running with the land; completion letter sent
to building permit agency; exemption from future
liability.
]
State issues a "closure" or comfort letter with
respect to the spill incident.
"No Further Action" letter.
Anyone is eligible except those who are Tax incentives and covenant not to sue.
regulated for cleanup under Federal regulations.
Anyone is eligible.
Any PRP who submits a cleanup with a fee is
eligible. All sites not in discussions or
negotiations for, or under, an order or decree
are eligible.
"No Further Action" letter.
Site specific technical assistance with written
opinions (effective 7/97) and "No Further
Action" letters.
130
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Table V-24: Brownfields Programs
Summary
Twenty-eight (28) States have formal brownfields programs, an increase of 13 States since 1995.
Most brownfields programs were established by statute, others were established through policies,
guidance or regulations.
Most States limit eligibility for their brownfields programs to underutilized or abandoned sites
that have re-development potential, but the precise articulation of the standard varies from State-
to-State.
Seven States specifically exclude sites that are subject to State or Federal enforcement or
regulatory actions (Arkansas, Arizona, Florida, New Hampshire, New Mexico, Vermont, and
Virginia).
Three States exclude certain parties responsible for contamination from participating in their
programs (North Carolina, Florida, and West Virginia).
Four States (Illinois, Minnesota, Oklahoma, and South Carolina) open their brownfields
programs to any sites that are eligible for their voluntary programs.
Three States have narrow brownfields programs that are limited to properties owned by local
governments (Missouri, New York, and Texas).
131
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Table V-24: Brownfields Programs
Reg. State Authority Citation
Criteria for Inclusion in Brownfields Program
CT Yes Conn. Gen. Stat Sec. 22a-133(m)
ME
NH
RI
VT
No
No
Yes
Yes
Yes
NHRSA147-F (July 1996)
RIGL 23-19.14
Vt. Stat Ann., Title 10, Sec. 6615a
2 NJ Yes NJSA 58:10-1
NY Yes Article 56
Sites in "distressed" communities and with high economic
development potential. Also, sites acquired by State under
program. '
Have pending legislation
Any contaminated property except: 1) one in violation of a
corrective action or any other Federal/State order (unless
participation will lead to substantial compliance); or 2) one
eligible for Petroleum Reimbursement Funds.
Any underutilized site where contamination issues inhibit
redevelopment.
Vacant, abandoned, substantially underutilized, or acquired by
a municipality. Excluded from participation are sites on the
NPL, sites subject to RCRA corrective action requirements,
and1 sites regulated under the LUST program.
Any commercial or industrial site mat is abandoned or
underutilized and is/or may be contaminated with hazardous
substances.
Municipally owned for sites which are not Class 2 Inactive
Hazardous Waste Disposal Sites for which the municipality is
not a responsible party.
3 DE
DC
MD
PA
VA
WV
4 AL
FL
30 DEL C. Chapter 20, Section 2010
(Tax Code)
GA
KY
MS
No
No
Yes
Ann. Code Md, Art 83A, Sees. 3-901
through 905
Yes
"NO
Yes
No
Yes Policy (EPA grant)
Yes Statute
Yes Informal alliance with EPA Region 4
Yes Brownfields Redevelopment Act
(Florida Statutes 376.77-376.85)
Not yet codified; was S. 2989.
Effective July 1, 1998
Any site which is cleaned up pursuant to 7 DELC. Chapter 91
and where employment is created and investments are made
for business.
Extensive statutory eligibility criteria for financial incentives.
For Brownfields Site Assessment Initiative, site may not be on
CERCLIS, may not be seriously contaminated, and must be
likely to be redeveloped.
' ' '
Program targets sites falling under traditional definition of
brownfields that are not being handled under another program.
May be subject to priority criteria.
Applicant cannot be responsible for contamination.
r ' .hi> I. MI | 1} | i, . , . " ,i "
EPA must designate a site as a brownfield and provide a grant
to fund remediation activities. DEM will then provide assessment
and oversight in lieu of oversight responsibilities at CERCLIS
sites (established in another contract with EPA Region 4).
The Brownfields program is open to any person who has not
caused or contributed to site contamination since the date of
enactment of the Brownfields Redevelopment Act (July 1, 1997).
Certain restrictions apply to sites subject to Federal or State
enforcement Also, the statute establishes a process through which
"brownfield areas'* may be designated by local government by
resolution with appropriate public notice and hearings. In
designating a brownfield area, the local government must consider
nine specific issues outlined in the statute.
Not yet determined.
132
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Table V-24: Brownfields Programs
Reg. State Authority Citation Criteria for Inclusion in Brownfields Program
4 NC
SC
TN
5 IL
IN
MI
MN
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
8 CO
MT
ND
SD
UT
WY
Yes
Yes
No
Yes
Yes
Yes
Yes "
No
Yes
Yes
No
Yes
Yes
Yes
No
No
Yes
No
No
No
No
No
No
No
NCOS 130A-3 10.30 to 3 10.40
If passed by legislature, will be part of
SC Hazardous Waste Management Act
(44-56-710 etseq. Article 7)
Informal policy
P.L. 59-1997 Section 28 - uncodified
Part 201 of Act 451
115B.17(14)&115B.175
Wis. Stat. Ch. 292.15; Wisconsin Act
27, effective July 1, 1998
Arkansas Code Annotated sections
8-7-1 101 etseq. (Act 125 of 1995,
as amended by Act 1042 of 1997)
Voluntary Remediation Act NMS A
74-4G-1
OAC 252:220; 27AO.S. Supp. 1997
Sections 2-15-101 through 110
Ad hoc through the VCP
Mo. Rev. Stat. 447.700
Sites bought or sold for redevelopment. Non-causative parties
who are interested in buying or selling a brownfields property
are eligible to enter into a consent agreement with DENR.
Same as voluntary cleanup program.
All sites eligible for the voluntary remediation program.
Sites potentially contaminated with hazardous substances or
petroleum.
Any site where there is a redevelopment interest by a new
developer.
Any site with an investigation or cleanup being conducted by
a voluntary party.
i
Abandoned industrial, commercial, and agricultural sites not
under enforcement action. In general, properties with viable
RPs are not qualified to participate in the program unless the
Director of ADPC&E determines it is in the best interest of
the State to proceed with a Brownfields cleanup while pursuing
cost recovery or some other method of settlement with the
RP(s) on a separate track.
All sites except those under existing permit or enforcement
action (State or Federal) or pending enforcement action.
Same as voluntary cleanup program.
No formal criteria. Sites owned by local government and local
government interests are selected from EPA Brownfields
Initiative pilot cities.
Same as voluntary cleanup program and must be owned by
public entity and abandoned for three years.
133
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Table V-24: Brownfields Programs
Reg. State Authority Citation
Criteria for Inclusion in Brownfields Program
10
AZ
;;;'j
CA
HI
NV
AK
ID
OR
WA
Yes ARS 49-153 to 49-157
No
Yes
No
No
No
No
No
Policy
Up to 100 sites allowed to participate in pilot program.
Volunteers may not include enforcement sites nor permitted
sites where the release to the soil violates a permit condition,
nor UST sites if monies from the UST trust fund are used.
I 1'i •
134
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Table V-25: Brownfields Sites
Summary
Six States have identified more than 100 brownfields sites through their programs: Arkansas
(262); Connecticut (144); Delaware (300); Illinois (1011); Michigan (164); and New York (105).
The number of cleanups underway ranges from 0 in several States to 439 in Illinois.
Four States reported more than 10 commitments for redevelopment: Michigan (144); Delaware
(30); New York (20); and Montana (12).
Most State brownfields programs facilitate redevelopment of sites by providing either liability
reliefer financial incentives.
135
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Table V-25: Brownfields Sites
' ' ,;,::,: Sites
REST, State Identified
Cleanups Commitments for
Underway Redevelopment Explanation of Redevelopment Facilitation
1 CT
ME
MA
NH
RI
VT
«... 2 NJ
;'." .' NY
GA
KY
MS
NC
144
12
65
105
PR
DE
DC
MD
PA
VA
wv , , .
AL '"
FL
300
57
2
7
''.': 2
1
44
30
Dedicated staff resources and $30.5 million in bond
funds or expedited review of remediation plans and for
hiring private contractors to perform remediation work.
In addition, the Department of Economic Development
can acquire polluted properties assume liability under
State law for past pollution up to $15,000,000.
Covenant not to sue and financial incentives
(Massachusetts economic development incentive program).
8 Certain parties may receive covenants not to sue, which
protect against liability under State law for contamination
addressed by an approved remedial action program.
Covenant not to sue for non-responsible performing
parties, as well as contribution protection. Funding
authorized for facilitation of reuse/redevelopment, but
no funds have been available.
2 Limited liability protection for redeveloper and
successors under the Hazardous Waste Management Act.
Some site assessment funds" through HUD grants.
Loans, grants, tax incentives, remedial cost reimbursement,
liability release, and variances for technical standards.
20 Provides a release from liability which is transferable to
all future owners. Provides 75% of the costs associated
with investment and cleanup.
30 Low interest loans, tax credit, grants.
1) Brownfields Revitalization Incentive Program - property
tax credits; grants and loans. 2) Free site assessments.
I
Revolving Loan Fund for site assessments and other
related activities.
Liability protection for program participants (and
lenders under certain conditions) from State and third
party claims. Issuance of'lNo Further Action" letters.
"Risk Based Corrective Action," whereby participants
may be allowed to use alternative CTLs along with
institutional and engineering controls to manage risk by
controlling exposure. ''Bonus Refund" whereby
participants receive $2500 for each new Florida job
created. Encouragement of local governments to offer
redevelopment incentives such as streamlined permitting,
tax credits, and low interest loans.
0 Not yet determined, but statute specifies that liability
protection will be provided.
1 "No Further Action" letter and limit of liability (may
not be granted in cases where program participants do
not remediate contamination).
136
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Sites
Reg. State Identified
Table V-25: Brownflelds Sites
Cleanups Commitments for
Underway Redevelopment Explanation of Redevelopment Facilitation
4 SC
TN
5 IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
TX
IA
KS
MO
NE
CO
MX
ND
SD
UT
WY
AZ
CA
1011
17
164
439
4
55
300
263
Covenant hotto sue for successful completion of work
and contribution protection for non-RPs.
State tax credit (Environmental. Protection Act, Section 58.
58.14a). State brownfields grants (IEPA Section 58.13).
2 Tax rebate for nonpolluters. Voluntary program.
Brownfield comfort letter. "No Further Action" letter
under development. State revolving loan fund.
144 Grants to local governments for investigation and
remedial action and protection against liability for
historical contamination (if not party to the event). DEQ
will undertake some investigations to help developer decide
Baseline Environmental Assessment (BEA) provide
exemptions from liability for past contamination for new
owners who do BE A prior to 45 days after ownership.
Liability assurances and financial incentives.
Liability protection and several financial incentives,
including tax credits.
Total release from State liability if order is properly
executed, and low interest revolving loan program.
0 New Mexico tries to educate anyone who might be
interested in reusing a brownfield property about the
Brownfields Program. Examples of potentially interested
parties include realtors, redevelopers, and local governments
that may own properties or consider condemning them.
1 Certificate of completion, certificate of no action
(includes liability protections for cleaned up portions of
the site), tax incentives for remediation and redevelopment,
job act incentives, and advice/document review.
5 Education, technical assistance, state property tax
abatements, issue letters for Federal income tax
expensing pf remediation costs.
8 Grants, loans, loan guarantees and tax credits.
137
-------
gcg.
Sites
State Identified
Table V-25: Brownfields Sites
• • •• '•'•'•.. •••' ' '•:!•• : " •••'•:• ' • » <.,'•' "'«;: ,:,, ,; „;.; |
Cleanups Commitments for
Underway Redevelopment Explanation of Redevelopment Facilitation
9 HI
NV
10 AK
ID
OR
WA
138
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Chapter VI: State Summaries
139
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Region 1
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
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CONNECTICUT
SITES
NPL Sites
Final:
Proposed:
Deleted:
16
0
2
State Sites'
Known and Suspected: 3029
Identified as Needing Attention: 668
On Priority List: 11
STATUTORY AUTHORITIES
Public Act 87-561, codified at Conn. Gen. Stat §22a-114 and §§22a-l33a through 133k
(1987, as amended 1989 and 1995), authorizes the Department of Environmental Protection to clean
up hazardous waste disposal sites and to use funds from the Emergency Spill Response Account or
other accounts authorized by law for cleanup purposes. The law provides for enforcement; strict,
joint and several liability; and cost recovery.
Public Acts 95-190 and 95-183 establish a voluntary cleanup program and the Licensed
Environmental Professionals program. These provisions are codified at Conn. Gen. Stat. §§22a-133v
through 133y.
The Transfer of Hazardous Waste Establishments Program Law, Conn. Gen. Stat. §§22a-134
through 134e (1985), creates aproperty transfer program. §22a-134 was amended by Public Act 95-
183, Public Act 96-113 and Public Act 97-218.
The Water Pollution Control Laws, Conn. Gen. Stat. §§22a-432, 22a-433 (1967 and
subsequent amendments), provide authority for administrative cleanup orders.
The Urban Sites Remedial Action Program Law, Conn. Gen. Stat. §229-133m (1992,
amended 1993), provides funding to clean up urban industrial sites and addresses hazardous
substance cleanup in connection with property transfers.
The Emergency Spill Response Fund Law, Conn. Gen. Stat. §22a-451(d) (1982, amended
1995), establishes the response fund, provides enforcement authorities, and allows for replacement of
water supplies. The 1995 amendment, Public Act 95-208, transferred this fund to the State general
fund as of July 1,1995.
Conn. Gen. Stat. §22*471 (1982, amended 1983-88, 1993-95), authorizes the Department of
Environmental Protection to arrange for the short-term provision of potable drinking water where
pollution of ground water creates an unreasonable risk for health or safety; to issue orders requiring
the provision of such water supplies; and to advance to municipalities the cost of providing drinking
water from the proceeds of any bonds authorized for that purpose.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection (DEP), Bureau of Water Management,
Permitting, Enforcement and Remediation Division includes 42 FTE staff associated with remedial
activities, 37 of whom work on non-NPL cleanups. The Attorney General's office provides legal
support with 2-3 attorneys spending some portion of their time on State superfund and enforcement
of remedial action orders; one FTE staff member at DEP provides legal support as well. Funds for
staff and administration are from the State general fund (75%) and Federal grants (25%).
CLEANUP ACTIVITIES
Non-NPL sites currently being cleaned up number approximately 453. Of these, 11 are the
State-funded sites that comprise the State priority list, 44 are being cleaned up under the brownfields
program, and most of the rest are being cleaned up pursuant to the State's property transfer program.
Cleanup activities have been completed at about 73 non-NPL sites since the start of the State
program, 17 in FY97; of these, brownfields cleanups accounted for about 17 since the start of the
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program and five during FY97. The State tracks cleanups under the voluntary and brownfields
program, but does not separately track cleanups under a general voluntary remediation category.
A total of 3,029 sites in the State are in the discovery stage, under consideration for listing on
State's Inventory of Hazardous Waste Disposal Sites. Of these, the State has listed 668 sites on the
Inventory (as needing attention), although the State estimates that as many as 2,060 sites may
potentially need attention.
CLEANUP FUNDING
The principal funding vehicles are the State superfund and the Urban Sites Remedial Action
fund. Sources for the two funds are general obligation bond funds. The State superfund had a
balance of $8M at the end of the FY97. No funds were added to the State superfund for FY97. The
Mount spent during FY97 was not available, but the State obligated SUM. The fund monies may
be used for site investigation, studies and design, removals, remedial actions, CERCLA match,
operations and maintenance, emergency response, victim compensation, grants to local governments,
program administration and natural resource restoration. In order to expend funds from the State
superfund, DEP must determine that a threat is unacceptable, and DEP must be unable to determine
the RP, or the RP must be in noncompliance with or appealing an order.
The Urban Sites Remedial Action Fund (USRAF) had a balance of $5.5M as of the end of
FY97, and as of that date $30.5M had been obligated for non-NPL sites since the fund's inception.
the USRAF is used primarily for site investigation, studies and design, operations and maintenance,
removals and remedial actions.
Another bond fund, the Potable Water Grant Fund, is used for emergency actions to address
jjotable water contamination. InFY97, this fund paid out approximately $2M, had about $2M in
additions, arii ended the fiscal year with a balance of $4.5M.
The Emergency Spill Response Fund (ESRF) was transferred into an identified account in the
State general fund in 1995. The ESRF is administered in, and primarily used by, the Oil and
Chemical Spills Response Division of the Waste Management Bureau. During FY97, the ESRF was
funded by appropriations and cost recovery, and paid out close to $3.5M. The ESRF can be used for
site investigation, studies and design, operations and maintenance, emergency response, removals,
remedial actions, and natural resource restoration.
In 1996, the State enacted legislation creating a Special Contaminated Property Remediation
ind Insurance Fund. In February 1998, the Department of Environmental Protection was awarded
|lM for estSUshment of the fund. The fund will be used by the DEP and the Department of
icpnonuc an
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PUBLIC PARTICIPATION
The State's voluntary cleanup law and the Remediation Standard Regulations require notice
of voluntary cleanups and an opportunity for comment, as well as public hearings if there is
substantial public interest in the remediation. The regulations also provide for public notice and an
opportunity for a public hearing when the Commissioner is asked to approve a request by a property
owner for an engineered control, such as a cap, to address instances where soil is polluted. For State-
funded projects, DEP holds public meetings at various stages of the investigation and cleanup. DEP
also keeps local officials informed of the status of State-funded projects.
ENFORCEMENT
Liability
Legal authorities include strict, joint, several and retroactive liability, orders for information
and site access, subpoena authority, administrative and consent order authority, injunctive action and
cost recovery authority. State law provides liability protection for "innocent landowners" as defined
by law. Civil penalties of $25K per day are available under the hazardous waste program. Punitive
damages (ll/z times costs for negligent acts or two times costs for willful acts) are available in cost
recovery actions. According to State law, any amounts paid by the State in cleanup costs shall be a
lien against the property, and such liens take precedence over prior liens except in the case of
residential property or property transferred pursuant to the State property transfer law. The preferred
enforcement method is consent order, followed by administrative order or court action. The State is
required to attempt cost recovery.
Natural Resource Damages
The Commissioner is authorized to pursue NRD claims, but a formal NRDs program has not
been established. There have been no monies recovered under State law and few, if any, NRD cases
under CERCLA.
Property Transfer
The property transfer law requires sellers to investigate and disclose the presence of
hazardous substances on a contaminated site at the time of transfer and requires that a party to the
transfer accept responsibility for implementing required remedial measures. The State's residential
property transfer law also requires disclosure of known environmental hazards prior to transfer of
certain residential properties. The State maintains a database of known or listed sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State has a voluntary cleanup program (established October 1,1995, by Public Act 95-
183, §3) in which owners of establishments (property transfer sites), sites on the State inventory of
hazardous waste disposal sites, or municipalities can participate. The DEP decides whether the DEP
or a Licensed Environmental Professional will oversee the investigation and cleanup. The program
requires payment of an initial fee of $2K; if DEP oversight is involved, the participant must pay an
additional fee based on the cost of the cleanup.
Public Act 95-190 (Section 2) provides separately for voluntary cleanups carried out by
Licensed Environmental Professionals in connection with properties that are not under State order
and are located in an area classified as GB or GC under the State's groundwater classification
system.
In 1996, Public Act 96-113 authorized the State to enter into a covenant not to sue with
certain owners or prospective purchasers of contaminated property subject to a remediation plan
approved by the State.
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The State's brownfields program is established by statute §22a-133m. To be included, sites
must be in distressed communities, and must have a high economic development potential, as
determined by the Department of Economic Development. Incentives for participation in the program
include dedicated staff resources and bond funds for expedited review of plans and hiring of private
contractors to perform remediation. In addition, the State is authorized to acquire sites and to assume
liability under State law for up to $15M in cleanup costs. Thus far, 144 sites have been included in
the program, and cleanup is underway at 44 sites.
144
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MAINE
SITES
NFL Sites
Final:
Proposed:
Deleted:
12
0
0
State Sites
Known and Suspected: 465
Identified as Needing Attention: 128
On Inventory or Priority List: 465
STATUTORY AUTHORITIES
The Uncontrolled Hazardous Substance Sites Act, Maine Rev. Stat, Title 38, §§1361 through
1371 (1983, as amended 1985,1987, and 1990), establishes the Uncontrolled Sites Fund and
authorizes the Department of Environmental Protection to clean up uncontrolled hazardous
substances sites. The law provides for enforcement; strict, joint and several liability; cost recovery;
and natural resources damages assessment and recovery.
Maine Rev. Stat, Title 38, §§343-E (1993), creates a program for voluntary cleanup of
hazardous waste sites.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection (DEP), Bureau of Remediation and Waste
Management, Division of Remediation has 26 FTE staff. One and one-half positions in the Attorney
General's office are devoted to superfund-type enforcement activity. DEP also works with the Bureau
of Health in conducting risk assessments and lab work. Funding for administration comes from
Federal grants (61%), State cleanup funds (34%), and the State general fund (5%).
CLEANUP ACTIVITIES
During 1997, cleanup activities were completed at a total of 26 sites, 10 of which were under
the State superfund program and 16 under the voluntary program. Voluntary cleanup activities are
underway at about 98 sites. Cleanup has been completed at a total of about 140 non-NPL sites since
the start of the agency's cleanup programs. Of these, 67 are under the State superfund program and
73 are under the voluntary program. Information is not available on the number of cleanup activities
underway in the State superfund program.
CLEANUP FUNDING
Maine uses two accounts for cleanup funding: (1) the Uncontrolled Sites Bond Account,
which contained approximately $3.8M as of the end of 1997; and (2) the Uncontrolled Sites Fund,
which contained $3. 6M as of December 1997. Expenditures from the Bond Account totaled $ 1. 6M in
1997. Minimal, if any, funds were added to the Bond Account during FY97. The State spent $704.6K
from the Uncontrolled Sites Fund during 1997, and $320.9K were added. The majority of monies
from both funds were spent at non-NPL sites. No information was available concerning total monies
obligated or encumbered for these funds. Both funds may be used for site investigation, emergency
response, removals, studies and design, remedial actions, natural resource restoration, operations and
maintenance, grants to local government, program administration, and CERCLA match. Cleanup of
closed municipal landfills is financed through a separate bond fund and statutory authority.
CLEANUP POLICIES AND CRITERIA
Maine determines cleanup levels on a case-by-case basis. Future water uses, MCL/MCLGs,
toxicity levels and risk to human health are all considered. The State uses a risk level of 10"5
(cumulative) for carcinogens and a Hazard Index of 1. At urban sites or rural areas where drinking
water is not affected, Maine has applied background level cleanup standards for groundwater
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contamination. In July 1997, Maine published draft soil cleanup guidelines. The guidelines describe
cleanup scenarios based on different categories of exposure: residential, adult worker, and
trespassers. Assumptions about future site-specific land use are based on current and future use, and
the agency has authority to require deed restrictions to maintain the future land use.
PUBLIC PARTICIPATION
Maine has no formal requirements for public involvement. DEP policy is to keep local
officials and residents informed.
ENFORCEMENT
Liability
Legal authorities include strict, joint and several, and retroactive liability; orders for
information; site access and remediation orders; administrative order authority; cost recovery; liens
and superliens; and punitive damages of treble the State's costs. The Commissioner must designate a
site for a consent decree. Penalty authority is derived from the hazardous waste statute. DEP also has
a property forfeiture provision.
Natural Resource Damages
Maine's program has existed since 1991 and has recovered$1.5M from 5 cases. All cases
involved State law claims, and four of the cases involved claims under CERdLA as well. There are
cases pending currently, but no further information about these cases is available. Recovered funds
may be used for program administration, as well as NRDs assessment to restore or replace damaged
resources,
Property Transfer
Maine has no property transfer provisions. Legislation enacted in 1993 requires auditors to
disclose to a private requestor of an audit any discovery of a release or presence of hazardous
substances on a site that may cause significant threats to public health or the environment; the
property owner then has a duty to disclose their presence to DEP.
yOLUNTARY ANDBROWNFffiLDS PROGRAMS
The State's voluntary program is an alternative to the State's regular cleanup program. Some
monies are dedicated to fund the State's participation, and participants pay a $500 application fee and
are charged for time spent by the State. Site owners are able to get full or partial liability releases
depending on the cleanup work carried out at the site. Incentives for participation include getting
sites back into economic use and getting a certificate from the State indicating that cleanup was
completed to the State's satisfaction.
The State is developing a brownfields program. An inter-agency team is identifying potential
resources to promote brownfields redevelopment.
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MASSACHUSETTS
SITES
NPL Sites
Final: 31
Proposed: 1
Deleted: 1
State Sites ,
Known and Suspected: 2679
Identified as Needing Attention: 2679
On Priority List (Tier I sites): 428
STATUTORY AUTHORITIES
The Massachusetts Oil and Hazardous Material Release Prevention and Response Act, Mass.
Gen. Law c. 21E (1983, as amended in 1986, 1992 and 1994), authorizes the Department of
Environmental Protection to ensure the clean up of sites contaminated by oil or hazardous material.
The law provides for enforcement; strict, joint and several liability; cost recovery; public
participation; natural resources damages assessment and recovery; voluntary cleanups; and
brownfields cleanups.
PROGRAM ORGANIZATION
The Department of Environmental Protection's (DEP) Waste Site Cleanup Program has a
total of 203 FTE staff, 172 of which work on non-NPL sites. The Bureau of Waste Site Cleanup is
the lead bureau administering the Waste Site Cleanup Program. The Bureaus of Waste Prevention
and Resource Protection also have staff dedicated to the program. In addition, 14 FTE attorneys from
DEP's Office of General Counsel and seven FTE attorneys in the Attorney General's office provide
enforcement support. Scientists in DEP's Office of Research and Standards provide risk assessment
support at specific sites and in regulation and policy development. In FY97, the program was funded
by the State general fund (7%), the State cleanup fund (28%), Federal grants (19%), and a
combination of other sources such as the State LUST Trust Fund and the State Clean Environment
Fund.
CLEANUP ACTIVITIES
Cleanup activities have been completed at 1,732 sites since the State's cleanup program was
redesigned in October 1993. Of those, cleanup activities were completed at 619 sites in FY97.
CLEANUP FUNDING
Bonds fund public response actions. A total of $7.1M were expended from the bond fund
during FY97, $4M for non-NPL sites and $3.1M for NPL sites. DEP has spent about $100M since
1983. At the end of FY97, the bond fund had a balance of $86.3M. Bond funds may be used for site
investigation, studies and design, removals, emergency response, remedial actions, CERCLA match,
operations and maintenance, and grants to citizen groups and local governments for technical
assistance.
CLEANUP POLICIES AND CRITERIA
Permanent cleanup solutions must eliminate significant risk of harm to health, safety, public
welfare and the environment; and cleanup to background conditions is required where feasible.
Temporary solutions are required at all sites if a permanent solution is infeasible.
Regulations (the Massachusetts Contingency Plan) set out three methods for establishing
cleanup standards at disposal sites. The first method relies on numeric cleanup standards for 105
chemicals in three groundwater categories and three soil categories. The second method allows
modification of the Method 1 numeric standards based upon site-specific fate and transport
information. The third method establishes cleanup goals based on site-specific conditions and a
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quantitative risk assessment. For sites at which a quantitative risk assessment is used to determine
cleanup standards, any applicable or suitably analogous Massachusetts health and environmental
standard must be met, and Cumulative Receptor Risk Limits must be achieved. The cancer risk limit
is a cumulative excess lifetime cancer risk of 10"5. The noncancer risk limit is expressed as a Hazard
Index of 1, and is calculated for groups of chemicals with the same mechanism of toxic action.
Restrictions on site use (Activity and Use Limitations) are required if the remediation goals
are based upon anything less than the most sensitive (i.e., residential) use. Use restrictions are
implemented through a deed notice or deed restriction.
PUBLIC PARTICIPATION
The statute and regulations require public notice of all classifications of disposal sites and
applications for Tier I permits for response actions. When citizens petition for community
inyptlvement iri response actions, a Public Involvement Plan must be prepared. State technical
assistance grants and public site inspections are also available. Local officials are informed of key
site activities throughout the cleanup process. The person conducting the response action is required
to implement required public involvement activities.
ENFORCEMENT
Liability
Massachusetts has strict, joint and several liability. Liability is also retroactive. DEP provides
PRPs with an opportunity to clean up a site; if the party cannot or will not, DEP may clean up the site
and recover costs. The rate of voluntary cleanups is high (95%), which program staff attribute to the
statute's provisions for priority hens, punitive damages equal to treble the State's costs and annual
compliance assurance fees, which are assessed for every year a site is in the cleanup process. The
1992 statutory amendments authorize DEP to issue an order to remedy an imminent hazard, which is
enforceable immediately and not subject to judicial review except in a proceeding to collect penalties
for violations of the order or to obtain reimbursement for the costs of complying with the order.
Natural Resource Damages
Massachusetts' NRDs program began in 1983. A total of $23.6M has been recovered by
Federal and State trustees at 5 NPL sites, in cases brought under Federal and State law. Two joint
restoration actions are underway.
Property Transfer
Massachusetts has no property transfer provisions. The State maintains a database of sites
that is publicly available.
BROWNFIELpS PROGRAMS
Massachusetts' statute authorizes voluntary cleanups as an integral part of the cleanup
program. Anyone is eligible to participate in a voluntary cleanup. Incentives for participating in the
program include a streamlined cleanup process, no waiting period for State oversight, and clear
endpoints. Funding for the State's activities comes from permit fees (for "Tier 1" cleanups) and
compliance fees.
The State's brownfields program is based on the authority to offer covenants not to sue to
parties conducting voluntary cleanups. The State currently limits covenants not to sue to prospective
purchasers and tenants planning to reuse sites in Economic Target Areas or to projects that provide
"exceptional economic development opportunity." Covenants have been signed for 53 sites and 14
more are pending; all have redevelopment commitments. Some sites may qualify for financial
assistance under the State's Economic Development Incentive Program, which was designed to
encourage job creation in Economic Opportunity Areas.
148
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NEW HAMPSHIRE
SITES
NPL Sites
Final:
Proposed:
Deleted:
18
0
0
State Sites
Known and Suspected: 474
Identified as Needing Attention: 474
On Inventory or Priority List: 474
STATUTORY AUTHORITIES
Th& New Hampshire Hazardous Waste Cleanup Fund Act (HWCF), NHRSA Chapter 147-B
(1981, as amended 1983,1985, 1986, 1987, 1990 and 1991 and 1996), establishes the Hazardous
Waste Cleanup Fund and authorizes the Department of Environmental Services to use the fund for
expenses directly associated with cleanup of hazardous waste or hazardous materials. The law
provides for enforcement; strict, joint and several liability; and cost recovery. NHRSA Chapter 147-
B and Chapter 147-A (hazardous waste management), provide general authority for voluntary
cleanups.
NHRSA Chapter 485 (1996) and the Groundwater Protection Rules, ENV-Ws 410, authorize
the designation of groundwater management zones as a component of the remediation of
contaminated groundwater and provide for the issuance of permits for the remediation. The law also
requires recipients of a permit to record notice of the groundwater management zone with the registry
of deeds.
NHRSA Chapter 147-F (1996), establishes the State's brownfields program.
PROGRAM ORGANIZATION AND FUNDING
The Waste Management Division of the Department of Environmental Services (DBS)
administers the Hazardous Waste Cleanup Fund (HWCF). As a result of a 1997 reorganization, the
Division now has four bureaus. The new Hazardous Waste Remediation Bureau is primarily
responsible for Federal and State Superfund work and has 25 FTE staff, 17 of whom work on non-
NPL sites. This bureau includes the former Groundwater Protection Bureau, the State sites portion of
the former Hazardous Waste Compliance Bureau, and the Federal Superfund sites portion of the
former Waste Management Engineering Bureau. The Department of Justice (Attorney General's
office) provides legal support through 4.5 FTE attorney positions and receives an annual
appropriation from the HWCF. The program's funding comes from the HWCF (12%), the State
general fund (8%) and Federal grants (80%).
CLEANUP ACTIVITIES
The State generally does not undertake remediation at non-NPL sites. About 83 non-NPL
sites are currently being cleaned up. Approximately 136 sites have been cleaned up on a voluntary
basis since the start of the program, with about 50 completed in the past fiscal year. In addition to
staff and administration, the HWCF has been used for emergency removal activities and for various
hydrogeological studies at sites in the preliminary stages of investigation.
CLEANUP FUNDING
The balance in the HWCF at the end of FY97 was $1.5M, with an additional $7.5M obligated
for NPL sites. During FY97, $1.4M were added to the fund and $1.7M were paid out, mostly for
non-NPL sites. The HWCF is derived primarily from quarterly fees paid by generators of hazardous
waste, recovered costs, fines and penalties. An average of $1.4M is collected each fiscal year. The
HWCF can be used for site investigation, operations and maintenance, studies and design, removals,
emergency response, remedial action, program administration, and grants to local governments. State
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law requires that the governor certify that circumstances require use of the fund. NHRSA Chapter
147-B provides for issuing bonds, to be paid from the HWCF, to fund remedial investigation and
cleanup. A separate capital bond is appropriated for CERCLA match for each fiscal year.
CLEANUP POLICIES AND CRITERIA
Cleanup levels must meet or exceed any Federal standards. Sites must achieve existing
Federal standards for groundwater and surface water. The State has developed a Risk
Characterization and Management Policy for soils, which provides for a three-tiered approach to
selecting cleanup standards. The first two tiers incorporate established values , while the third tier
involves site-specific risk assessment. The State uses risk levels of 10~6 (individual) or 10~5
(cumulative) for carcinogens and a Hazard Index of 1.
Where land use assumptions are a basis for establishing cleanup standards, the State may
require that Use and Activity Restrictions be recorded on the deed. In addition, NHRSA Chapter 485
authorizes the State to designate Groundwater Management Zones as a component of groundwater
remediation, and the law requires that Groundwater Management Zones be recorded in the registry of
deeds.
PUBLIC PARTICIPATION
There are no formal public participation requirements. The State sometimes holds
information meetings and informally contacts local citizens and government officials.
ENFORCEMENT
Liability
State law provides for strict, joint and several liability. The State is authorized to issue
administrative orders, including orders for information, site access, and site cleanup. The State also
has subpoena and consent order authorities. New Hampshire may take injunctive action to induce a
generator to clean up a site, may impose criminal penalties, and may bring an action to recover costs.
New Hampshire has a first priority lien (superlien) on: (1) real property (other than
l^sidential property) where hazardous waste or hazardous material is located; (2) the business
revenues generated from the facility on the real property where the hazardous waste or hazardous
material is located; and (3) all personal property located at this facility. A lien without priority,
effective as of the date and time of recording and filing, can be established against all other property.
Natural Resource Damages
The State has no authority independent of Federal law to recover for NRDs.
Property Transfer
New Hampshire has no property transfer provisions. The State maintains a database of
known or listed sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
New Hampshire law provides general authority for voluntary cleanups. The State considers
voluntary cleanups to be an integral part of is program and essentially all non-NPL cleanups to be
voluntary cleanups.
New Hampshire enacted legislation creating abrownfields program in July 1996. Any
property contaminated with hazardous waste, hazardous materials or oil is eligible, except sites that
are being cleaned up through one of the State's petroleum reimbursement funds and sites that are
under an environmental or corrective order (unless participation in the program will bring about
compliance). A covenant not to sue, which protects against liability under State law, may be issued to
participants other than those who caused or contributed to the contamination. Cleanup is underway at
seven sites included in the brownfields program.
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RHODE ISLAND
SITES
NPL Sites
Final:
Proposed:
Deleted:
12
0
0
State Sites
Known and Suspected: 400
Identified as Needing Attention: 100
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
The Hazardous Waste Management Act, R.I. Gen. Laws, §§23-19.1-1 through 23-19.1-3 3
(1978, as amended, 1979, 1984, 1987), establishes the Environmental Response Fund and authorizes
the Department of Environmental Management to clean up abandoned, uncontrolled, and/or inactive
sites. The law provides for enforcement; joint and several liability; cost recovery; natural resources
damages assessment and recovery; and public participation.
The Industrial Property Remediation and Reuse Act, R.I. Gen. Laws §§ 23-19.14-1 through
23-19.14-19 (1995), provides for voluntary cleanup and brownfields cleanup, and clarifies
enforcement authorities and public participation.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Management (DEM), Bureau of Environmental
Protection, Office of Waste Management, has 20 FTE staff. Following a recent departmental
reorganization, approximately 5 emergency response staff were moved to the OEM's Office of
Compliance and Inspection. In-house legal support is provided by two FTE attorneys. Federal grants
provide 60% of funding for staff and administration, with the remainder coming from State cleanup
funds (10%) and the State general fund (30%).
CLEANUP ACTIVITIES
No information was available regarding cleanup activities.
CLEANUP FUNDING
At the end of FY97 the Environmental Response Fund had a balance of $5 OK. During the
fiscal year, it received additions of $300K and paid out $300K, alifor non-NPL sites. In addition,
$68IK were encumbered, all for non-NPL sites. There have been no new bonds issued, and the
primary sources of the fund are now appropriations and penalties, with smaller contributions from
cost recoveries and interest.
The fund may be used for site investigation, emergency response, removals, site evaluation,
studies and design, remedial action, CERCLA match, temporary water supplies, operations and
maintenance, program administration and resident relocation.
CLEANUP POLICIES AND CRITERIA
Cleanup levels are determined on a case-by-case basis, using water quality criteria,
MCLs/MCLGs, groundwater standards, background levels, EPA guidelines and generic risk-based
soil standards developed by the State. The State also uses site-specific risk assessment. Risk levels
used for risk assessment are 10'6 for carcinogens and a Hazard Index of 1 for noncarcinogens.
The State considers assumptions about future land use in establishing cleanup levels. Where
remediation standards are based on land use restrictions, the State requires that environmental land
use restrictions be recorded with the title.
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PUBLIC PARTICIPATION
State law and regulations require community involvement in investigation and remediation of
contaminated sites, including notification to nearby residents of proposed site investigations,
availability of records, and notice and comment on proposed settlement agreements. DEM policy is
to expand public participation opportunities, and DEM has sought to implement this policy through
the public notice and comment process, as well as through agency program planning meetings.
ENFORCEMENT
Liability
Rhode Island has strict, joint and several liability, as well as retroactive liability. The State
has authority for subpoenas, administrative orders, injunctive action, civil and criminal penalties, cost
recovery, and treble damages. Civil penalties of up to $10K per day are available.
Natural Resource Damages
The State has NRDs authority under R.I. Gen. Laws §§23-19.14-6 and 23-19.1-22(c).
Approximately $2.5M has been recovered through two CERCLA claims, and two additional
CERCLA claims totaling approximately $500K are pending. One natural resource restoration project
is underway using over $500K of recovered monies.
Property Transfer
Rhode Island has no property transfer provisions other than requirements for disclosure of
known deficient conditions upon transfer of certain residential properties. An inventory of sites is
maintained.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Voluntary cleanups are handled under the regular cleanup program. Although anyone is
eligible, non:pjy>s may obtain a covenant not to sue and protection from contribution actions.
The brownfields program targets any underutilized site where contamination impedes
Development Part sites may receive liability protection. The Industrial Property
^Remediationan fReuse Act also authorizes the State Economic Development Corporation to use
funds from the State's tire site remediation account for loans to facilitate remediation of sites of
^critical economic concern." Such funds, however, have not been available since the law's
enactment in 1995. The State estimates that at least 60-65 sites have been included in the brownfields
program.
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VERMONT
SITES
NPL Sites
Final:
Proposed:
Deleted:
0
0
State Sites
Known and Suspected: 362
Identified as Needing Attention: 255
On Inventory or Priority List: 3 62
STATUTORY AUTHORITIES
The Water Pollution Control Law, Vt Stat Ann., Title 10, §§1282-1283, establishes the
Environmental Contingency Fund for emergency responses, studies and design, and remedial actions.
The Waste Management Act, Vt. Stat. Ann., Title 10, §§6601-6618 (1977, as amended 1981,
1985, 1987, 1995and 1996), establishes the State's hazardous waste program and authorizes the
Department of Environmental Conservation to take removal and remedial actions to clean up sites
contaminated by the release of hazardous materials. The law provides for strict, joint and several
liability for responsible parties, and for cost recovery. The law was amended in 1995 to establish a
brownfields cleanup program (Vt. Stat. Ann, Title 10, §6615a).
An Act Relating to Administrative Enforcement of Specified Environmental Laws (Act 98),
Vt. Stat. Ann., Title 10, §§8001-8221 (1989), provides additional enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Conservation (DEC), Waste Management Division,
Hazardous Materials Program has 14 FTE staff members. That section handles all hazardous waste
work including CERCLA, RCRA, pre-remedial and State list work. Four attorneys in the Attorney
General's office, two attorneys in DEC's Enforcement Division, and one Program Attorney work on
hazardous waste cases, for a total of about three FTE positions. Staff and administrative costs come
from Federal grants (75%), the State general fund (23%) and State cleanup funds (2%).
CLEANUP ACTIVITIES
Cleanup activities have been completed at 115 non-NPL sites since the start of the State
program, 21 of these during 1997. Cleanups are underway at two brownfields sites. Outside of the
brownfields program, the State does not track the number of non-NPL sites at which cleanup
activities are currently underway. Two NPL sites are proposed for de-listing.
CLEANUP FUNDING
The Environmental Contingency Fund (ECF) had a balance of $1M at the end of FY97.
Additions amounting to $400K were made to the fund during the fiscal year. A total of $500K was
expended at non-NPL sites from the ECF. No monies were obligated or encumbered during FY97. A
hazardous waste generator tax constitutes the major source of revenue for the fund, with minor
revenue from cost recoveries and interest The ECF may be used for site investigation, studies and
design, removals, emergency response, remedial actions, CERCLA match, operations and
maintenance, grants to local government, and program administration.
The Petroleum Cleanup Fund (PCF) had a balance of $3.8M at the end of the 1997 calendar
year, and the State had obligated another $800K for non-NPL sites. During 1997, Vermont spent
$4.7M from the PCF on non-NPL sites. Additions to the fund totaled $5M in 1997. The PCF is
generated by an annual tank assessment fee required to be paid by UST owners and by a one cent per
gallon fuel license fee charged to distributors of gas or diesel fuel. It also receives cost recoveries and
interest. The PCF may be used for site investigation, emergency response, studies and design,
153
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"I":
I1!11? F
m
:tfi'
IBP!
'I f
remedial actions, removals, victim compensation, operations and maintenance, and program
administration,
CLEANUP POLICIES AND CRITERIA
Cleanup standards are determined on a case-by-case basis. The State uses water quality
criteria (based on the State groundwater statute), MCLs/MCLGs, and EPA guidelines (e.g., soil
cleanup standards) in conjunction with risk assessments. The State uses a risk level of 10~6 for excess
cancer cases and I Hazard Index of 1 for noncarcinogens. The State considers assumptions about
future land use in establishing cleanup standards. Zoning restrictions are used to support land use
assumptions, and the State may require deed restrictions in individual cases.
:;;: '; •;,::; ::: : . ; , ' . ", ;" |.
PUBLIC PARTICIPATION
DEC meets with town officials and holds public meetings. The Waste Management Act
requires that municipalities be notified of sites within their borders; site designation must be entered
on the town's land record. The State brownfields law requires public notice of a proposed corrective
action plan and a minimum 15-day public comment period.
ENFORCEMENT
Liability
DEC is required to give a "discharging party" an opportunity to clean up. DEC sends out
letters, to be followed by an administrative order in the event of noncompliance. Ninety-five percent
of sites are voluntarily cleaned by RPs. The State has strict, joint and several liability and treble
damages provisions. Liability apportionment is available if an RP can prove apportionment DEC has
several order authorities, including authority to request information, subpoena documents, issue
administrative orders, issue consent orders, and issue orders for entry. Civil penalties are $50K per
violation in addition to $25K per day for continuing violations. Penalties and fines go to the State
general fund; recovered costs go into the ECF.
f '!"!!'3 ((US1 ' ! '' . . • ' ' , •'!*!..''• I •!• | • *
Natural Resources Damages
Vermont does not have authority independent of Federal law to recover for NRDs.
Property Transfer
Vermont does not have any property transfer provisions.
"' ,. . '_\ '_
loes.not have a voluntary cleanup program, although the State does encourage and
support voluntary cleanups.
The State does have a brownfields program (established by Vt Stat Ann., Title 10, §6615a),
which commenced in January 1996. Properties that are abandoned or substantially underutilized and
where development is proposed by independent parties are covered by this program. NPL sites are
excluded, as are sites subject to RCRA corrective action requirements and sites regulated under the
LUST program. Thus far, three sites have been identified for participation in the program. Cleanup is
underway at two of these sites, both of which have commitments for redevelopment. The program
offers limited liability protection under the Hazardous Waste Management Act for redevelopers and
Successors. In addition, the State conducts some brownfields site assessments using HUD grant
"funds,
" ' ' ' ' '
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Region 2
New Jersey
New York
Puerto Rico
155
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NEW JERSEY
IITES ;;; , ;; , ' „ ..... ; |.
NPL Sites State Sites
Final; 121 Known and Suspected: 15177
Proposed: 2 Identified as Needing Attention: 4915
Deleted: 14 On Inventory or Priority List: 1402
mill; ' ' 'MT''V ' !'i • ' !i< ',,"!''' ; ':; , i ' ' ', , !'
!''," ' ] ",":,!,' „ ' ' ,,^,1 , " i , \ ' ' ' • • ,''• • • • , , i ' !• , r • "
liwrufoRY AUTHORITIES '" :, " , ' '. ;' [_ ';
The Spih 'Compensation and Control Act, N.J.S.A. §§58:10-23-11 separately etseq., (enacted
1976, and amended almost annually thereafter), establishes a fund for cleanups and provides
authority for emergency response, removals, remedial actions, enforcement, cost recovery, victim
compensation, natural resources damages, and voluntary cleanup.
The Industrial Site/Recovery Act (ISRA) (1993), N.J.S.A. §§13:lK-6 etseq., requires
transferors of industrial facilities to clean up contamination.
The Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B, provides the basis
for the remediation of contaminated sites and a brownfields program; it also amended site
remediations standards to reflect land use restrictions.
The Environmental [Rights Act, N.J.S.A. 2A:35A establishes a basis for filing citizen suits.
The Water •Pollution Control Act (WPCA), N.J.S.A. lOA-1 etseq., establishes the basis for
the remediation of contaminated sites which impact the waters of the State.
PROGRAM ORGANIZATION AND FUNDING
The Site Remediation Program in the Department of Environmental Protection has 512 staff
members. Of this number 335 are devoted to non-NPL cleanups. The Attorney General's Office
Department of Law and Public Safety, Division of Law, Hazardous Site Litigation Section) provides
IS attorneys for legal support of the program. Funding for staff and administration comes from the
Spill Compensation Fund, Corporate Business Tax, and Bond funds (55%), PRP reimbursements
(40%), and Federal grants (5%).
CLEANUP ACTIVITIES
Publicly funded cleanup priorities are to be established using the New Jersey Remedial
Priority System (RPS) (NJAC 7:26F). The scoring system ranks sites based on risk to human health
and the environment. The totals noted above exclude UST sites, but include other petroleum sites. At
non-NPL sites, cleanup activities are currently underway at 4,363 sites; 2,591 were completed during
the 1997 fiscal year, and 12,634 have been completed since the start of program.
At VCP sites, 2,3 13 are currently being cleaned up, 1,721 were completed during the last FY,
and 4,454 have been completed since the program's inception.
CLEANUP FUNDING
New Jersey's Spill Compensation Fund is generated primarily by dedicated taxes. It had a
balance of $T.3M atthe end of FY97. Fund activities during FY97 consisted of $25.7M in additions,
and S28.3M in expenditures. This Fund may be used for all categories of cleanup activities at non-
NPL sites except for grants to local governments and natural resource restoration, and it is used for
CERCLA match, and operations and maintenance at NPL sites. At this time the fund is only used for
Victim Compensation, Emergency Response and Program Administration.
The Hazardous Discharge Site Cleanup Fund, consisting primarily of cost recoveries, user
fees and direct billing, had a balance of $1.0M atthe end of the fiscal year. During FY97 additions to
the fund were $21. 5M, and the total monies paid out were $21. 3M.
156
],^/!!-;iij;l:1li;i!i ,,;i I.; iBa l,,iii;
IBII!.:! i,ii, H lililil I ..-:.»!.; '.,H itil ' il1:
-------
A portion of a Corporate Business Tax authorized by referendum in November 1996 goes to
support publicly funded cleanups. This account had a zero balance at the end of FY97, but revenues
and expenditures of $14.8M (representing the one-half year the tax had been in effect). Annual
revenues and expenses from this account should be $36.7M per year. In FY97 expenditures were
$12.1M for non-NPL projects, and $2.7M for program staff and administration.
The 1981 Discharge Bond Fund had a balance of $2.5M at the end of FY97, and the total
monies obligated or encumbered at the end of the FY were $55.9M.
The 1986 Hazardous Discharge Bond Fund had a balance of $26.4M at the end of the FY97.
It is authorized for all cleanup categories except victim compensation, grants to local government,
and natural resource restoration. $42.1M in encumbered funds also was in this account.
The 1996 Hazardous Discharge Bond Fund had a balance of $65M at the end of the FY. This
funding source had not yet been used.
The Hazardous Discharge Capital Fund's balance was $18.5M at the end of FY97. The fund
took in no new money but paid out $ 16.9M during the FY.
CLEANUP POLICIES AND CRITERIA
The State has statutory cleanup provisions with risk based goals, and also uses water quality
criteria, MCLs and MCLGs, background levels, risk assessment, and the State's unpromulgated soil
cleanup criteria (SCC) guidelines. The risk level set by the statute is 10'6 for carcinogens, and a
Hazard Index of 1 or less for noncarcinogens. For soil cleanup, the State may use the SCC or
determine case-specific levels by risk assessment If SCC are determined to be below background
levels, then the cleanup level is background. For sites where cleanup is based on restricted land uses,
site specific deed notices must be recorded.
The same standards are used for voluntary program cleanups.
PUBLIC PARTICIPATION
The Spill Act specifies that actions should "to the greatest extent possible, be in accordance
with the NCP." DEP policy is generally to follow NCP procedures and the Technical Rules. A State
regulation provides for public notice of cleanup actions at all sites. Procedures for all high profile
sites, including the voluntary cleanup program, provide for notice, comments, hearings and
participation.
ENFORCEMENT
Liability
Liability is strict, joint and several, and retroactive. Civil penalties are authorized up to $50K
per day per violation (and up to $1M for discharges, based on substance and quantity); treble
damages may be assessed through the courts.
Natural Resource Damages
The Spill Act and WPCA provide State authority to seek NRDs. A formal program was
inaugurated July 1, 1993. One State NRD recovery of $455K and eight CERCLA NRD recoveries
(valued at over $9M) have occurred. There are no CERCLA NRD claims and 1 State-based NRD
claim currently pending.
Property Transfer
New Jersey's Environmental Cleanup Responsibility Act, enacted in 1983, was the pioneering
property transfer law. It required site assessment, disclosure, and cleanup of industrial sites upon
transfer. The law was amended in 1993 and renamed the Industrial Sites Recovery Act (ISRA).
Investigation, cleanup, and disclosure are still required. Sites are remediated according to property
157
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use standards. Other cleanup sites must record a deed notice if sites are not cleaned up to unrestricted
use standards.
New Jersey's Spill Act gives the State a priority (super)lien for its cleanup costs. The State
maintains a database of sites.
• • i
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State's voluntary cleanup program was established in 1992 as a subset of site remediation
cases. It is fully Integrated into its other programs. Participation is open to all parties with the
exception of priority sites and sites under an enforcement action. DEP will provide a "No Further
Action" letter, and a covenant not to sue for non-RPs upon completion of successful voluntary
cleanup. Low interest loans and grants are available to parties interested in doing the work. The State
charges an oversight fee that is case-dependent; the State may bill salary and overhead, but not its
indirect costs.
The State also operates abrownfields program based on a State statute. It includes abandoned
and underutilized sites mat may contain hazardous substances. Cleanup standards for brownfield sites
are identical to those for other sites and may include deed notices. Hundreds of sites are presently
being cleaned up under this program, with commitments for reuse. The low interest loan fund is
administered by the New Jersey Economic Development Authority.
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NEW YORK
SITES
NPL Sites
Final:
Proposed:
Deleted:
90
2
11
State Sites
Known and Suspected: 1567
Identified as Needing Attention: 769
On Inventory or Priority List: 906
STATUTORY AUTHORITIES
The Environmental Conservation Law, Articles 17, 19, 27, 71, provides general,
comprehensive enforcement and cleanup authority. Article 27, title 13, is the Abandoned Sites Act
(1979, Chapter 282), which mandates Statewide inventory and registry of hazardous waste sites,
provides order and cleanup authority, and authorizes the State to provide alternative water supplies. It
includes authority under which the State established a voluntary cleanup program.
The State SuperfundAct (1982, Chapter 857; 1985, Chapter 38), establishes the Hazardous
Waste Remedial Fund for cleanup of sites and State CERCLA match, and a State capital account for
cleanups.
The Environmental Quality Bond Act of 1986 (EQB A) (Ch. 511, Laws of 1986), authorized
$1.2B in bonds to address inactive hazardous waste sites, $IOOM of which was later redirected for
use in cleaning up nonhazardous waste landfills.
Part of the Environmental Conservation Law, Article 56, Title 5 (1997), sets forth a
brownfields program, the environmental restoration project State assistance program.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Conservation (DEC) has approximately 309 authorized
FTE staff members working on State and Federal Superfund activities. Most of the personnel work in
the Division of Hazardous Waste Remediation. Legal support is provided by 17 attorneys in the
Division of Environmental Enforcement and three attorneys in the New York Attorney General's
Office.
Approximately 92% of funds for staff and administration are from the cleanup fund, 7% are
from Federal grants, and 1% is from the State general fund.
CLEANUP ACTIVITIES
The State tracks registry sites based on a classification system. Sites are listed if they have a
confirmed disposal of a hazardous waste (not substance), and if they present a significant threat to
public health or the environment.
In FY97 cleanup actions were underway at 266 non-NPL sites. Actions have been completed
at approximately 269 non-NPL sites, including 47 during FY97. A separate breakout of voluntary
program actions is not available.
Of the sites needing attention, approximately 89 are municipal landfills, 118 are industrial
landfills, and 651 are manufacturing and other sites.
CLEANUP FUNDING
In 1989, the State began selling EQB A bonds. $401M remains in the fund. During FY97,
$102M were expended and $94M were obligated. The bond money may be used for site
investigation, studies and design, removals, emergency response, remedial actions, CERCLA match,
operations and maintenance, grants to local government, and program administration.
The Hazardous Waste Remedial Fund had abalance of $7.3M as of March 31, 1997. During
FY97, $61.6M were added to the fund and $56.8M were paid out. The bulk of this funding comes
159
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from waste end taxes. The Fund is used for debt service of 1986 EQBA bonds. A small portion of the
money is used for program administration.
In 1996, the Clean Water/Clean Air Bond Act authorized sale of bonds, a portion of which
support brownfields ("environmental restoration projects"). This $200M bond authorization did not
have any funds obligated in FY97, but funds have been obligated for the FY98.
The DEC also was appropriated capital funds with a balance of $3.7M used for studies and
design, removals, and remediatiorZ $1M were added to this fund and S17.8K were expended during
tie fiscal year Encumbrances were $1.3M.
' '!A substantial amount of cleanup funding is provided by PRPs. The State reports a total of
722 consent orders to date, valued at approximately $1.6B in cleanup commitments.
CLEANUP POLICIES AND CRITERIA
Cleanup levels are established considering risk and exposure assessments, water quality
criteria, MCLs/MCLGs, background levels, groundwater standards, and land use considerations. The
process starts with soil cleanup objectives based on unrestricted use and then uses the feasibility
study to determine final soil cleanup levels. When the cleanup of a site to the predisposal condition is
not possible or feasible, DEC specifies generic soil cleanup levels that, if attained, would eliminate
all significant threats. The risk goal is set at 10"6. Deed restrictions are used to control future land use
where cleanup is not to residential standards.
PUBLIC PARJICrPATION
Statutes and regulations require the DEC to develop a citizen participation program at the
start of RI/FS that mcludes a site-specific citizen participation plan, establishment of a local
document repository, creation of a public contact list, and a mailing of a description of the proposed
RI/FS field work. When the Proposed Remedial Action Plan (PRAP) is prepared, a description of the
PJftAP is sent to the people on the contact list inviting comments. The Department conducts a 30-day.
comment 'period, and will hold a public meeting to describe the pRAP and solicit public comments.
||}e Department summarizes and responds to comments received during the comment period when
tSe Record bFDecisibii (ROD) is signed. The Department also conducts citizen participation
activities when it implements interior remedial measures.
In addition, when the Department adds a site to its Registry of Inactive Hazardous Waste
Sites, or reclassifies a site within the Registry, it must mail a notification to adjacent property owners
and to town and county clerks. The Department must also publish a notice of a proposal to delete a
site from the Registry, conduct a 30-day comment period, notify adjacent property owners by mail,
and summarize public comments.
The voluntary cleanup program incorporates public notice and comment as a matter of policy
flther than legal requirement the Environmental Restoration Program (brownfields) incorporates
citizen participation requirements within the statute and regulations.
ENFORCEMENT
Liability
State regulations defining responsible party result in strict, joint and several liability. The
statute makes common law defenses available. Liability is retroactive. Legal authorities include
orders for information and site access, subpoena authority, administrative order authority, consent
order and injunctive action authority. Civil penalties are $25K per violation in addition to $25K per
day for continuing violations. Criminal penalties of up to $25K per day and/or one year
imprisonment are available. Cost recovery is also authorized.
160
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Natural Resource Damages
Natural resource damages are recoverable under the Navigation Law, the Environmental
Conservation Law, and common law. A formal NRDs program was authorized in 1990 within DEC
and got underway in 1993. It has recovered more than $38.6M, mostly under CERCLA authority.
Eighteen natural resource restorations are underway.
Property Transfer
New York is required to maintain a priority list of sites. Also, inactive hazardous substance
sites must be recorded with the recorder of deeds.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State maintains a separate voluntary cleanup program, established in December 1994 by
Organization and Delegation Memorandum 94-32. Site owners, prospective purchasers,
municipalities, and (under some circumstances) operators may participate. Participation by class 2
inactive hazardous waste sites and NPL sites is not allowed. Cleanup levels are based on the intended
use of the site; a release from liability is issued after the cleanup levels are reached. State oversight
costs are paid by the volunteer.
The passage of the Clean Water/Clean Air Bond Act of 1996 established a $200M
environmental restoration project fund. Known as the Brownfields Program, the fund provides grants
to municipalities for the investigation and/or remediation of municipally owned contaminated
properties. These properties may then be marketed for redevelopment by the municipality or used by
the municipality for a variety of activities including industrial, commercial, or public use. In
December 1997, the Department issued its final Administrative and Technical Guidance
Memorandum (TAGM) entitled, "Environmental Restoration Projects." This document is for use by
municipalities in applying for State assistance brownfield grants.
In January 1990, regulations were finalized addressing the provision of State financial
assistance to municipalities to carry out the Brownfields Program. The State funding provides 75% of
investigation and cleanup costs. Eighty-one (81) brownfields applications have been approved for
funding under the Clean Water/Clean Air Bond Act. A total of $70M has been appropriated for
Brownfields projects through fiscal year 97-98. Of that amount, approximately $14.5M has been
committed for the 81 projects that have been approved.
161
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PUERTO RICO
SITES
til! i' NPL§teS|
';•: '' Final: ;".; 12
Proposed: 0
Deleted: 0
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
: ' • . i "i,i" ... , '• • i 'if11' ^i : • :• i 'ij ' :,, , ;•
--—^' AUTHORITIES . .' '" ^ '''' |. .'
The Environmental Emergencies Fund Act, Law 81, 12 L.P.R. Ann. §§1271 etseq., (1987)
establishes the Environmental Emergencies Fund and authorizes the Environmental Quality Board to
respond to emergencies and recover response costs from liable parties. The Act has no order or
injunctive authorities; Puerto Rico relies on other authorities for these purposes, including the Public
Policy Environmental'Act, Law 9,12 L.P.R. Ann., §§1121 etseq. (1970, as amended 1973, 1974,
1978,1983,1984,1985,1993 and 1997).
PROGRAM ORGANIZATION AND FUNDING
No information was provided on this subject.
CLEANUP ACnymES
No information was provided on this subject.
'IIIS ' I1 ' " ' 'I'll!*1'!' • I iI"BII' i . 'i, " ' ; 1' ' i, H' „ . ,! i ,,:'.!iil' ' ' I >'l 1 , ' < ' ' '
ClJE ANUP f UNfflNG ' ' : ' ' : " ;" " :''"!" |'
According to Law 81, the Environmental Emergencies Fund may be used for emergency
response, CERCLA match and program administration. No information was provided on fund
balances and expenditures.
CLEANUP POLICIES AND CRITERIA
No information was provided on this subject.
PUBLIC PARTICIPATION
No information was provided on this subject:
ENFORCEMENT
Liability
Liability is strict and retroactive. Civil penalties are authorized up to $25K per day per
violation; punitive damages are not available.
Natural Resource Damages
Law 9? Section 16(b) authorizes recovery for NRDs. Law 81, Article 6
bf any costs incurred in addressing environmental emergencies.
Property Transfer
There are no property transfer provisions.
lit ' '' "Mil Uii'liil" ^ *• • ,
VOLUNTARY AND BROWNFffiLDS PROGRAMS
No information was provided on this subject.
162
authorizes recovery
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Region 3
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
163
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DELAWARE
SITES _ , ',;„, ^
":'": " NPL Sites
=:; ;•. Final; 20
Proposed: 0
Deleted: 3
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
600
185
90
STATUTORY AUTHORITIES
The ffeKar^pus^ubstance^Cleaniip Act, DCA, Title 7, §§9101-9126 (1990, as amended
1995), establishes the Hazardous Substance Cleanup Fund and authorizes the Department of Natural
Resources an^Enyjronmental Control (DNREC) to cleanup sites contaminated by hazardous
substances. The law provides for enforcement; strict, joint, and several liability; cost recovery; public
participation; natural resource damage assessment and recovery; property transfer provisions; water
replacement; and a voluntary cleanup program.
The Delaware Regulations Governing Hazardous Substance Cleanup (1993, revised 1995
and 1996), prohibit site cleanup at a property contemplated for transfer, or any other site, without the
State's approval or oversight.
PROGRAM ORGANIZATION AND FUNDING
The DNREC, Division of Air and Waste Management, Site Investigation and Restoration
Branch has 29 FTE staff, with 31 FTE staff authorized. Legal support is provided by the Department
of Justice (Attorney General's office) with one attorney assigned to both State and CERCLA work.
Cost reimbursement has become a major source of staff and administrative funds, accounting
for about 59% of the total. The remaining funds come from Federal grants (25%), the State general
fund (6%), and the State cleanup fund (10%).
CLEANUP ACTIVITIES
The 90 non-NPL sites on the State's priority list were selected based on factors including risk
to human health and the environment, as well as potential for redevelopment. Cleanup activities are
currently underway at approximately 87 non-NPL sites, with 40 of those sites involving voluntary
remediation. Since the start of the State cleanup program, cleanup activities have been completed at
56 non-NPL sites, 20 of which involved voluntary cleanups. Cleanup activities were completed at a
total of 16 non-NPL sites during the FY97, nine of which involved voluntary cleanups.
_
The Hazardous Substance Cleanup Fund (HSCF) had a balance of $8.4M at the end of the
FY97. Another $3OOK was obligated for non-NPL sites. Additions to the fund totaled $5.2M in
FY97, and expenditures for activities at non-NPL sites totaled $2.7M.
The JfSCF receives petroleum products tax receipts, penalties, cost recovery and interest. The
fund is available for program administration, site investigation, studies and design, removals,
iij;iii"i,; i.j.i.Hj '„, I'.V"1." J" iiiiiiii'I KiiSiK * , *~ „. • ,, ,.,. ,, , * , „. ^ ,? fir. .... •
remedial actions, emergency response, natural resource restoration, CERCLA match, and operations
and maintenance.
• • | - - i _ • I
CLEANUP POLICIES AND CRITERIA '. '...''.,"'.*'.'.'.', ,,""„ \
The State's cleanup regulations specify that cleanup levels will be determined using a risk-
based approach on a site-specific basis.
For groundwater cleanup levels, MCLs may be used if DNREC determines they will protect
human health and the environment. Otherwise, when the natural background level exceeds the 10"5
164
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cancer risk level or a Hazard Index of 1, the natural background level is the cleanup level. When the
background level is less than the 10"5 cancer risk level, then the 10'5 risk level or a level
corresponding to the Hazard Index value of 1 is the cleanup level. If the PRP cannot perform risk
assessment, the State allows the use of risk-based concentration values that comply with the risk-
based approach. The State finalized a guidance in 1998 that establishes such risk-based concentration
values. The same rule applies to soil cleanup levels. Surface water cleanup levels must meet the
State's water quality standards.
The State's regulations provide that cleanup levels may be based on current and potential use
conditions. For sites cleaned up to standards based on specific land use, deed restrictions and
groundwater management zones are used to maintain the future land use restrictions.
PUBLIC PARTICIPATION
The Hazardous Substance Cleanup Act provides for public notice and opportunity for public
comment on proposed consent decrees, settlement revisions, proposed and final remedial action
plans; public hearings and meetings; and document availability.
ENFORCEMENT
Liability
The Hazardous Substance Cleanup Act establishes strict, joint and several liability and
authorizes cost recovery. DNREC must attempt a settlement prior to initiating an enforcement action,
unless an emergency exists. The State has injunctive action and administrative order authority. Civil
penalties of up to $10K per day per violation are available. The State may recover punitive damages,
treble the State's cleanup costs.
Natural Resource Damages
The State NRDs program is set forth in the Delaware Regulations Governing Hazardous
Substance Cleanup. The program covers compensation and restoration or replacement requirements
for NRDs. RPs are liable for all damages.
In 1990, $600K was recovered at an NPL site under the NCP, and $400K has been spent for
natural resource restoration at one site. The State recently recovered $5K in one claim under State
law. Currently, three claims ($400K) are pending under State law and two claims ($3M) are pending
under CERCLA.
Property Transfer
The Hazardous Substance Cleanup Act (§9115) requires the property owner to place a notice
of a release of a hazardous substance, determined by the Secretary to be a threat to public health or
the environment, with the recorder of deeds. The owner must also file with the recorder of deeds a
copy of the Certificate of Remedy. The Secretary is required to maintain a remedial decision record,
which contains the final plan of remedial action and the basis for it, for a period deemed appropriate
based on the remedy implemented and future use of the property .
Delaware's residential property disclosure law contains requirements for disclosing known
material defects (including the presence of toxic substances) prior to transfer of certain residential
properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The 1995 amendments to the Hazardous Substance Cleanup Act included provisions for a
voluntary cleanup program. Anyone may participate, but cleanups must comply with the Delaware
Regulations Governing Hazardous Substance Cleanup. Participants receive a certificate of
completion, and prospective purchasers receive a release from liability. To fund the State's oversight,
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participants are required to remit an initial deposit up to a maximum of $5K. Additional deposits will
Be requested based on the oversight cost estimate as the site cleanup progresses. Any deposit funds
not expended by the State are returned to the participant. Forty (40) sites are currently under the
program. Cleanup has been completed at 20 sites thus far.
The State brownfields program is part of the voluntary cleanup program with added
provisions for bringing business and employment to the site after the completion of cleanup.
Participants receive tax credits based on the size of investment and number of new employees
brought to the site. Grants of up to $25K are available for site investigation and cleanup. In addition,
low interest loans up to $250K are also available for brownfields sites. About 300 sites have been
identified for Inclusion in the program, with cleanup underway at 30.
!s IS, : !
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DISTRICT OF COLUMBIA
SITES
NPL Sites
Final:
Proposed:
Deleted:
0
1
0
State Site :
Known and Suspected:
Identified as Needing Attention:
Inventory or Priority List:
N/A
STATUTORY AUTHORITIES
The District of Columbia does not have a formal program for cleaning up non-NPL
contaminated sites. The Hazardous Waste Management Act of1978, D.C. Code §§6-701 etseq., (as
amended in 1984,1989, and 1991), establishes the District's hazardous waste management program.
The law authorizes the mayor to revoke or suspend a permit and, if a responsible party fails to
comply with an administrative order, directs the mayor to take corrective action necessary to alleviate
or terminate a violation of the law, a threat to health or the environment or a release of hazardous
waste. The law also authorizes the mayor to recover costs of the corrective action from the
responsible person and provides for injunctions and civil and criminal penalties.
PROGRAM ORGANIZATION AND FUNDING
The District's hazardous waste management program has been housed in the Department of
Consumer and Regulatory Affairs, Environmental Regulation Administration, Pesticides, Hazardous
Waste and Underground Storage Tank Division. The Corporation Counsel provides legal support as
needed. Pursuant to a 1998 governmental reorganization, the program is expected to move to a new
office - the Bureau of Hazardous Materials and Toxic Substances, within the Department of
Health's Environmental Health Administration.
CLEANUP ACTIVITIES
While the District of Columbia does not currently have a cleanup program for non-NPL sites,
it plans to apply to EPA for a Core Superfund program grant in 1999. The District does not currently
track the number of non-NPL contaminated sites within its jurisdiction.
CLEANUP FUNDING
The District does not have a fund for hazardous waste cleanup.
CLEANUP POLICIES AND CRITERIA
The District is developing hazardous substance cleanup standards.
PUBLIC PARTICIPATION
The District has no formal public participation requirements.
ENFORCEMENT
Liability
Under fa& Hazardous Waste Management Act, the District has civil penalty authority up to
$25K per day per violation, no punitive damage authority, and no specified liability standards.
Natural Resource Damages
The District does not have authority independent of Federal law to recover for NRDs.
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Property Transfer
The District does not have a property transfer provision, but it does require written notice and
posting of a notice on a property where a release occurs and the responsible party is not known.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The District does not have a voluntary cleanup program or a brownfields program. The
District has applied to the EPA for a Brownfields Pilot Project grant to develop a program.
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MARYLAND
SITES
NFL Sites
Final:
Proposed:
Deleted:
17
3
2
State Sites
Known and Suspected: 440
Identified as Needing Attention: 33
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
The Annotated Code of Maryland, Environment Art., Title 7—Hazardous Material and
Hazardous Substances, Subtitle 2—Controlled Hazardous Substances, §§7-201 through 7-268 (1982,
as amended 1984,1985, 1986, 1987, 1989,1991, 1992, and 1993), establishes the Hazardous
Substance Control Fund and authorizes the Department of the Environment to clean up sites
contaminated by hazardous substances. The law provides for enforcement; strict, joint and several,
and proportional liability; cost recovery; public participation; and natural resources damages
assessment and recovery.
The Annotated Code of Maryland, Environment Art., Title 7—Hazardous Material and
Hazardous Substances, Subtitle 5—Voluntary Cleanup Program, §§ 7-5.01 through 7-516 (1997),
establishes the State's voluntary cleanup program.
The Annotated Code of Maryland, Art. 83 A, Subtitle 9, Brownfields Revitalization Incentive
Program, §§3-901 through 905 (1997), establishes the State's brownfields financial incentives
program.
PROGRAM ORGANIZATION AND FUNDING
The Department of the Environment (MDE), Waste Management Administration,
Environmental Restoration and Redevelopment Program (ERRP) has three divisions involved in the
State superfund process: the Site and Brownfield Assessment/State Superfund Division, with
approximately nine FTEs; the Voluntary Cleanup Program, with six FTEs; and the Federal Facilities
and NPL Division, with 13 FTEs (approximately 7.5 of whom work on non-NPL sites). The Core
function is under the Waste Management Administration's Planning and Resource Management
Program, and has approximately eight FTEs. The Attorney General's office has two attorneys located
at MDE who work on hazardous substance cleanup.
Funding for the State's superfund program comes from the State general fund (10%), the
State cleanup fund (10%) and from Federal grants (80%).
CLEANUP ACTIVITIES
The State's Hazardous Substances Response Plan guides the Department's activities. The
ERRP oversees cleanups at Federal facilities, NPL sites, State superfund sites, State deferral pilot
sites and Voluntary Cleanup Program sites.
There are 33 non-NPL sites at which cleanup is currently underway under the State superfund
program; information was not available on completion of cleanup at such sites. Cleanup has been
completed at three sites in the first year of the State's Voluntary Cleanup Program, and cleanup is
underway at four additional sites.
CLEANUP FUNDING
Pursuant to State law, MDE is required to seek cost recovery for any State response costs
funded by the Hazardous Substance Control Fund. The Fund includes monies used for activities
outside the State superfund program, and information specific to State superfund activities is not
available.
169
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irf'f'i
The Voluntary Cleanup Fund currently consists of user fees. In the first year of the program,
23 applications were submitted, and $138K in fees were placed in the fund. If the State does not use
the entire $6K fee paid by a participant in its oversight role, it will refund the balance; conversely, if
State oversight costs more than $6K, the balance will be collected from the participant.
The Brownfields Revitalization Incentives Fund received $500K in appropriations in the first
year, the fund may be used to make low interest loans and grants for site remediation. Thus far, there
have been no monies distributed from me fund.
CLEANUP POLICIES AND CRITERIA
Under the State superfund program, the Department applies water quality criteria,
groundwater standards, MCLs/MCLGs, risk-based assessments, background levels and EPA
guidelines, as appropriate Site-based risk assessments are used in conjunction with any applicable
regulatory criteria and are based on EPA published standards and Region 3 guidance as appropriate
and available.
The State's voluntary cleanup law requires participants to select one or more of the following
criteria that protect public health and the environment: uniform numeric risk-based standards;
measurable standards based on site-specific risk assessment; background levels; Federal or State soil
Haiidards or water quality standards; Federal or State MCLs; or any other Federal or State standards.
The Department Is developing uniform numeric risk-based cleanup standards, based on industrial and
jesidential uses. "In cases where the Department approves a voluntary cleanup based on land use
assumptions, the agency requires deed restrictions.
is
^ j PARTICIPATION ' ; ; _ " ;
Thereare^statutory requirements for hearings, document availability, as well as regulatory
requirements for notice and public comment. Community involvement is encouraged if there is
Interest. The voluntary cleanup law provides for notice and comment, as well as an opportunity for a
public informational meeting to discuss proposed cleanup plans.
"ENFORCEMENT
l||;i""1 '•• '""i"1' WI, ' ' " • '• •' I' ,,. ', 1 . !
Liability
Maryland has strict, joint and several liability, but provides for apportionment where there i
a reasonable basis for determining a party's contribution. Under State law, the State program may
impose liability for cleanup of substances disposed of before the date the program was enacted. The
State has civil penalty authority up to $25K per violation. Punitive damages are not available.
Through the Voluntary Cleanup Program, certain purchasers who did not cause or contribute to
cbritamination may limit their retroactive liability upon purchase of the property.
Natural Resource Damages
The State's NRDs program began in 1982. The State does not have any claims pending.
Property Transfer
The State does not have any property transfer provisions, other than residential property
disclosure requirements.
HI' "• '"i,i' • : ,1*4. ii\:\a\ • . i . • , .v'l,' , ' ii, in i'i1 j i j|i • *
lyOLUNTAJRY AND BROWNFIELDS PROGRAMS
Maryland's Voluntary Cleanup Program was established by statute in 1997. Any site that is
contaminated or perceived to be contaminated is eligible for participation, other than NPL sites, sites
jmderactiw^forcement or TSD facilities. Eligible applicants include "responsible persons" who
have not knowingly or willingly violated any hazardous substance law, as well as "inculpable
170
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persons," defined as purchasers with no previous connection to the property. An initial fee of $6K is
collected from each participant, although the fee is ultimately based on the actual cost of State
oversight. Program incentives include a streamlined process, determination of no further
requirements and issuance of a certificate of completion, which releases the participant from State
enforcement action and further liability for remediation approved by the State.
Maryland's brownfields program consists primarily of (1) the Brownfields Revitalization
Incentive Program, a financial incentives program established by statute in 1997; and (2) the
Brownfields Site Assessment Initiative, established by policy to provide free site assessments to sites
that are likely to be cleaned up, sites that are not on CERCLIS, and sites that are not seriously
contaminated. In addition, the State's Voluntary Cleanup Program includes some sites that meet the
traditional definition of brownfields, but not the definition in either of the State's two formal
brownfields initiatives.
The Brownfields Revitalization Incentives Program is open to sites that are not on the NPL
list, not TSD facilities and not subject to active enforcement, provided those sites are owned or
operated by an "inculpable" person. The State brownfields law lists several factors to be considered
in determining eligibility for financial assistance, including location, type of site and economic
development potential. As of the end of 1997, no sites had yet applied for participation. Fifty-seven
(57) sites have been identified for participation in the Brownfield Site Assessment Initiative. In 1997,
MDE conducted 30 brownfield site assessments at no cost to property owners.
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•
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the ISEAF had a balance of just over $1.4M, and an additional $2.14M had been obligated. During
the fiscal year, $2M were added to the fund and just over $502.5K were paid out.
CLEANUP POLICIES AND CRITERIA
The LR&ERSA, along with its implementing regulations adopted in 1997, establish State-
wide cleanup standards. The party undertaking cleanup must select one or a combination of the
standards set out in the law and regulations. The three general remediation standards are:
background; generic State-wide health standards (concentrations of regulated substances associated
with a specific environmental medium, which take into account land use factors); and site-specific
risk assessment. The levels used for risk assessments are 10"4 to 10~6 for carcinogens and a Hazard
Index of 1 for noncarcinogens.
The regulations implementing LR&ERSA also provide a remediation standard for "special
industrial areas" (brownfields). The requirements include a remediation plan that provides for (a)
addressing "all immediate, direct or imminent threats to public health and the environment which
would prevent the property from being occupied for its intended purpose" and compliance
monitoring; and (b) preventing access to contaminated areas not required to be remediated.
For sites cleaned up to standards based on a specific land use, deed notice is the primary
mechanism use by the State to maintain future land use restrictions. In some cases, deed restrictions
are used.
PUBLIC PARTICIPATION
The HSCA establishes requirements relating to public notice, public comment, hearings and
meetings, document availability, and grants to citizen groups. The State provides public notice of the
analysis of a selected response action and alternatives. The public notice is followed by a 90-day
comment period. A public hearing is held within the 90-day comment period. HSCA also has a
citizen suit provision.
The LR&ERSA and its regulations contain public participation requirements for parties
proposing remediation under one of the law's cleanup standards. These include public notice and
comment, as well as the development of public involvement plans where the site-specific standard is
used and the affected municipality requests to be involved.
Community Relations Coordinators perform additional public participation functions on an
ad hoc basis.
ENFORCEMENT
Liability
HSCA provides for comprehensive order and injunctive authorities; orders for information
and access; criminal and civil penalties; and punitive damages equal to treble the State's costs. Civil
penalties are a minimum of $5Kper day and a maximum of $25Kper day. Liability is strict, joint
and several, and retroactive. HSCA also provides for NBARs, de minimis settlements, legal
presumptions of culpability for contamination, and whistleblower protection.
There is a 120-day notice period before a site may be placed on the State list to encourage
responsible party cleanup prior to listing. There is also a 120-day moratorium on enforcement at
multi-party sites if RPs seek to negotiate shares. For remedial actions extending beyond interim
actions, HSCA §1301 requires DEP to initiate action against owners or operators under other State
laws (e.g., Clean Streams Law and the Solid Waste Management Act) before taking HSCA
enforcement or cost recovery actions.
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Natural Resource Damages
Pennsylvania has natural NRDs authority, however no formal NRDs program or policy exists
at present There have been no NRDs monies recovered under State law and minimal, if any, monies
recovered under CERCLA. The Department of Environmental Protection is the designated trustee for
natural resources.
Property Transfer
HSCA §512 requires disclosure on the deed, or with the recorder of deeds, that the site was
or is being used for the disposal of hazardous substances. The seller must also disclose the presence
of hazardous substances on the site before transfer. This requirement is waived if cleanup is
completed to State-wide standards. Pennsylvania's residential property transfer law requires
disclosure of known material defects prior to transfer of certain residential properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
LR&ERSA established the voluntary cleanup program in 1995. Since then, the program has
accounted for a substantial majority of cleanup activities in the State. The program is open to all sites
and maintains Statewide standards for cleanup. Loans from the Department of Commerce are
available for site assessment. State participation is funded by the State general fund and by a $250
participant fee.
Cleanups of brownfields are voluntary cleanups that take place in "special industrial areas,"
defined as orphan sites or sites within State-designated enterprise zones. The regulations
implementing LR&ERSA establish a remediation standard for these sites. Other facets of the
brownfields program are identical to the voluntary cleanup program.
fi!!:1!
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VIRGINIA
SITES
NPL Sites
Final:
Proposed:
Deleted:
27
2
2
State Sites
Known and Suspected: 2015
Identified as Needing Attention: 411
On Inventory or Priority List: 88
STATUTORY AUTHORITIES
The Waste Management Act, Va. Code §§10.1-1400 through -1457 (1986, as amended 1987,
1988,1990, 1993, 1994, 1995 and 1996), authorizes the Department of Environmental Quality to
contain or clean up sites where hazardous wastes have been improperly managed. The law provides
for enforcement, strict liability and cost recovery. The 1995 amendments created a voluntary
remediation program.
The Virginia Environmental Emergency Response Fund Act, Va. Code §§10.1-2500 through
-2502 (1992) establishes the State fund.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Quality (DEQ), Division of Special Programs, Office of
Federal Facilities Restoration and Superfund, has 17 FTE staff. At the State Attorney General's
office, one full time attorney handles all waste cases for DEQ, and a small fraction of that attorney's
time is spent on superfund-related work. Federal grants provide 90% of program administration costs
and the State general fund provides the remaining 10%.
CLEANUP ACTIVITIES
State activity at non-NPL sites consists primarily of oversight of Federal facility and
voluntary cleanups. Virginia's priority list/inventory of sites contains 88 non-NPL sites (Federal
facility and voluntary remediation sites) at which cleanup activities are currently underway and for
which State oversight and guidance have been requested. Of the 88 sites, 64 are being cleaned up
under the voluntary remediation program. To date, 44 non-NPL sites have been cleaned up, 11 of
those on a voluntary basis.
The 88 sites on Virginia's priority list include 3 municipal landfills, 4 industrial landfills, 31
manufacturing sites, 24 military sites, and 37 various other types of sites, with some sites falling
under more than one category.
CLEANUP FUNDING
The Virginia Environmental Emergency Response Fund (VEERF) was established in 1992
for emergency response actions. It had a balance of approximately $3.5M at the end of FY97, with
another $500K obligated for non-NPL sites. Additions of about $1. 1M were made to the fund during
FY97, and a total of $123.4K were paid out during FY97 to non-NPL sites. Penalties are the
principal source of revenue for the VEERF, with smaller contributions from cost recovery and
interest. Monies from the VEERF may be authorized for site investigation, CERCLA match, studies
and design, operations and maintenance, removals, emergency response, remedial actions, natural
resource restoration and small business environmental compliance assistance.
Virginia also has a Voluntary Remediation Registration Fee Fund, consisting of fees paid by
participants in the voluntary cleanup program. At the end of FY97, the balance was $24.2K, all of
which had been added during the fiscal year. These monies may be used for administration of the
program.
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State appropriations were used to pay out just over $2M in State CERCLA matching funds
and over $1 IK in State Core Grant matching funds in FY97.
CLEANUP POLICIES AND CRITERIA
In establishing cleanup levels, the State uses water quality standards, MCLs/MCLGs,
background level data and EPA risk assessment guidelines, as appropriate.
The State's voluntary cleanup law requires the establishment of methodologies to determine
site-specific, risk-based standards that are "no more stringent than" Federal standards for soil,
sediments and groundwater. The voluntary remediation program regulations employ a three-tiered
approach to establishing cleanup standards. Tier One uses background levels; Tier Two uses
regulatory levels (such as MCLs or water quality standards) or risk-based concentrations; and Tier
Three uses site-specific risk assessment. Risk levels used for risk assessments are 10"6 (individual)
and 10"4 (multiple) for carcinogens and a Hazard Index of 1 for noncarcinogens.
To obtain a cleanup based on a restricted land use, the party must commit to placing a
restriction on the property deed. Where contamination of off-site groundwater is involved, DEQ
requires a letter from the local health department stating that wells may not be permitted in the area
of contamination.
! ' !ii, !i|ii,f",l:, »!|i«'! : . Ir , ' • !,'!' , .• . ! ,i
PUBLIC PARTICIPATION
Virginia uses the Federal Superfund regulations for notice and comment concerning the
analysis of NPL site cleanup alternatives. State law specifies public notice and participation
requirements only where a State permit is required for a cleanup. State regulations establish public
notice and comment requirements for the voluntary remediation program.
ENFORCEMENT
Liability
The State's enforcement authority is limited to sites where waste has been "improperly
managed." The law provides limited exemptions from liability, including certain cases where the
damages were caused by third parties, and the State considers liability to be strict. The State has the
authority to issue unilateral administrative consent orders, take injunctive action and impose civil
penalties up to $25K per day per violation of an order.
Natural Resource Damages
In addition to general authority under the State Constitution, the State Water Law provides
authority for NRDs. The State may bring an action to recover costs incurred in investigating the
killing offish and replacing fish where fish are killed as a result of discharges into State waters. The
State estimates that it carries out six fish replacements per quarter throughout the State.
Property Transfer
The State has no property transfer provisions or restrictions, other than residential property
disclosure requirements.
VOLUNTARY AND BROWNFffiLDS PROGRAMS "
Since July 1995, the State has had a program for voluntary cleanups of contaminated sites
(Va. Code, §§10.1-1429.1 - 1429.3). Regulations provide a framework for selecting cleanup
standards ^nder the voluntary program. Eligibility is limited to sites where remediation is not
mandated pursuant to a Federal or State regulatory program. Incentives for participation in the
program include the issuance of a certification of satisfactory completion of remediation, which
176
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constitutes immunity to a State enforcement action. State oversight is funded in part by a fee of $5K
or 1% of remediation, whichever is less.
Virginia's brownfields program is established by policy, in connection with a 1997 EPA
grant. The program may include any site that meets the traditional definition of brownfields and that
is not being handled under another program. Thus far, two sites have been identified for
participation.
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WEST VIRGINIA
, i
Hi '
SUES
NPL Sites
Final:
Proposed:
Deleted:
7
1
1
State Sites
Known or Suspected: 600
Identified as Needing Attention: 150
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
The Hazardous Waste Management Act, W.Va. Code §§22-18-1 through 22-18-25 (1981, as
amended 1985,1989,1991, and 1994), establishes the State's hazardous waste management program
and includes property transfer disclosure requirements. The law provides for enforcement and
authorizes the Department of Commerce, Labor and Environmental Resources to protect public
Eealth and the environment in cases where the ''handling, storage, transportation, treatment or
disposal of any hazardous waste may present an imminent and substantial endangerment to public
health, safety or the environment"
The Hazardous Waste Emergency Response Fund Act, W.Va. Code §§22-19-1 through
22-19-6 (1985, as amended 1994), establishes the Hazardous Waste Emergency Response Fund for
Ifesponding to hazardous waste emergency and funding CERCLA match, and authorizes cost
recovery.
The Groundwater Protection Act, W.Va. Code §§22-12-1 through 22-12-14 (1991, as
amended 1991 and 1994), establishes groundwater standards which may be used by the State to
determine cleanup levels.
lljh^lun/ary Remediation and Redevelopment Act, W. Va. Code §§22-22-1 (1996),
establishes the State's voluntary cleanup and brownfields programs.
i the Division of Environmental Protection (DEP) in
61]f ;!!,:,;' J1 iiijii! ;i!. "IHIUHl;1 I««i i1"1 '.s», ,/, ,i.ifi,,i,ii! ')!.. i,,,,— , ' .. : - t. • ^ •, > •
|he Department of Commerce, Labor, and Environmental Resources, administers emergency
llsponse^'"site"assessment for Federal Superfund and Hazardous Waste/RCRA activities. The Office
!of Envfronmehta!"'Remediation was created in the fall of 1997 to administer the LUST, corrective
Ifctipn and voluntary cleanup programs. This new office employs 10 FTEs, of which 5 are devoted to
!^i3fer§roun^storage tames. One attorney in DEP's Office of Legal Services provides legal support.
Staff and administrative costs come from Federal grants (90%) and Voluntary Cleanup
[Reimbursement"!
CLEANUP ACTIVITIES
Cleanup activities have been completed at 111 non-NPL sites since the start of the State
program, 39of which were completed during the calendar year 1997. Six cleanups are underway as
part of the voluntary cleanup program. No cleanups are underway at brownfields sites.
CLEANUP FUNDING
The Hazardous Waste Emergency Response Fund had a balance of $ 1. 8M at the end of
FY97. A total of $758.6K was obligated or encumbered during the fiscal year. Additions amounting
to I488BC were made to the fund during FY97. Waste fees constitute the major source of revenue for
the Fund, with minor revenue from cost recovery. The Fund may be used for CERCLA match,
operations and maintenance, removals, and program administration.
178
i^
liiiil^^^ ;lii.^^^^ all
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CLEANUP POLICIES AND CRITERIA
The State uses risk assessment for carcinogens and noncarcinogens, background levels, water
quality criteria, MCLs/MCLGs, soil standards and land use to establish cleanup levels. The State uses
risk levels between 10"4 and 10"6 for excess cancer cases and a Hazard Index of 1 for noncarcinogens.
The default risk levels are 10"5 for industrial sites and 10"6 for residential sites, with flexibility to
clean up to lower standards than these if the responsible party goes through the public participation
process. The State uses a three-tiered approach for selecting and applying standards and criteria for
the voluntary cleanup program. This approach consists of de minimis, uniform and site-specific
contamination standards.
Future site specific land use assumptions are disclosed in the application and negotiated in
the Voluntary Remediation Agreement. As institutional controls to support land use assumptions, the
State uses a land use covenant enforceable by the State and a GIS/Public Empowerment database on
the World Wide Web. Furthermore, State law requires that tax assessors notify the State of any
changes in land use.
PUBLIC PARTICIPATION
Formal requirements for public participation exist only under the voluntary cleanup program,
under which public notice, provisions for public comment, and hearings and meetings are required by
statute. By participating in the public participation process, an RP may move off of the default risk
level to a less stringent cleanup level. Public participation always takes place under the State
brownfields program.
ENFORCEMENT
Liability
The State's liability standards are not specified. Civil penalties are authorized for violations
of orders; punitive damages are not available.
Natural Resource Damages
West Virginia does not have authority independent of Federal law to recover for NRDs.
Property Transfer
State law and regulations require disclosure on the property deed, lease, or any other
instrument, that property or surface of property was used for the storage, treatment or disposal of
hazardous waste.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has separate voluntary cleanup and brownfields programs. The voluntary cleanup
program was established by statute in July 1996 and by regulation in July 1997. A guidance manual
is projected for July 1998. All sites are eligible for the program, except for those with unilateral
orders and those on (or being proposed for) the NPL, provided the release was not created by gross
negligence or willful misconduct. Incentives for participating in the voluntary program include
predictability, the Voluntary Remediation Agreement, and a Certificate of Completion. The State's
participation is funded by flat fees of $1K, $3K, or $5K, depending on the age of the site and the SIC
code. Hourly fees are charged after the Voluntary Remediation Agreement is signed. Volunteers
must use a State-licensed remediation specialist.
The State's brownfields program, also established by statute in 1996, includes seven
identified sites. Cleanup is not currently underway at any of these sites. An applicant to the
brownfields program cannot be responsible for the contamination. State law creates a Brownfields
Revolving Loan Fund for site assessments and other related activities, as incentive for participation
in the program; however, the Fund contains no monies at this time.
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Region 4
'Alabama
: 'Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
180
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ALABAMA
SITES
NPL Sites
Final:
Proposed:
Deleted:
13
0
1
State Sites
Known and Suspected: 700
Identified as Needing Attention: 125
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
The Code of Alabama §22-30A-l etseq. (1988), authorizes the. Hazardous Substances
Cleanup Fund and provides general authority for enforcement and voluntary cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Hazardous Waste Branch, Land Division of the Alabama Department of Environmental
Management (ADEM) employs 28 FTE staff, although 30 are currently authorized. In addition,
ADEM's Office of General Counsel provides one attorney who devotes approximately 10% of time
to the hazardous substance cleanup program. Funding for staff and administration comes from
Federal grants and cooperative agreements (50%), the State Cleanup Fund (40%), and the State
general fund (10%).
CLEANUP ACTIVITIES ;
Cleanup activities are currently underway at 30 non-NPL sites, three of which are being
remediated under the State's voluntary cleanup program. Another 33 sites are either under evaluation
to determine the extent of cleanup required or are in post cleanup monitoring and review. During
FY97, cleanups were completed at 27 non-NPL sites, none of which were handled under the
voluntary program. Since the start of the program, cleanup activities have been completed at 100
non-NPL sites, four of which were remediated under the State's voluntary cleanup program.
There is no State priority list separate from the CERCLIS list. If a site is inspected and
contamination is found, it is usually placed on the CERCLIS list. However, sites which have only
one or two 55-gallon drums are not discovered under CERCLA if they are cleaned up under State
provisions.
CLEANUP FUNDING
The Hazardous Substance Cleanup Fund (HSCF) had abalance of $615.6K at the end of
FY97. During the fiscal year, S199.3K were paid out: $22.3K toward NPL sites and $177K toward
non-NPL sites. No monies were obligated or encumbered at the end of FY97. Additions to the fund
during FY97 totaled $336K. The HSCF's most significant source of funding is waste fees, and
additional minor funding support was provided by cost recovery and appropriations. Authorized uses
of the fund include site investigation, CERCLA match, studies and design, operations and
maintenance, removals, emergency response, remedial actions, and program administration.
CLEANUP POLICIES AND CRITERIA
ADEM uses Federal statutory authority and guidelines to establish cleanup standards. The
selection and application of standards and criteria is media dependent. Risk assessment, background
levels, water quality criteria, MCLs/MCLGs, ground water standards and land use based
considerations are used to determine cleanup standards. The State has adopted clean water standards
as required by the Clean Water Act and EPA rules. With the exception of MCLs/MCLGs, the
remaining standards are prescribed by policy and/or implemented on an ad hoc basis. ADEM uses
EPA Region 3 soil screening levels to determine the need for further cleanup. If this method reveals a
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IB: I i "nil111! i1;,!!1!!
'Mlt:!-1 'OIII'iB!'1 ," •! I I*!?!! .I.TWJ
risk equal to or below 10"6, there is usually no requirement for further cleanup. Exceptions exist when
a regulatory driver is in place. If a risk above 10 is revealed, cleanup standards may be selected on a
site-specific basis using risk assessment and/or land use considerations. Because no legal instrument
is available to enforce specific land uses, assumptions about future use are based on the best
professional judgement of the ADEM, local governments, developers, or facility proprietors, as
subject to ADEM approval. As an alternative to risk assessment, thorough removal actions may be
conducted where cost savings apply. Numerical risk goals range from 10~4 (for industrial sites) to 10"6
(for residential properties). Identical cleanup standards apply under the State's voluntary cleanup
program.
PUBLIC PARTICIPATION
Alabama does not require public participation in cleanup decisions if the public participation
would increase the threat to public health. At smaller drum sites, the increased threat to the public
involved with public participation is not deemed worthwhile. At more significant cleanups that have
the potential to be of public interest, a 30 day comment period is provided by law. A new voluntary
cleanup program will use provisions similar to those from the State RCRA law.
ENFORCEMENT ' ' ' , , "' "' ' , , ' '
Liability
Liability is proportional and retroactive. Civil penalties are authorized up to $25K per day per
violation of an order. Parties may be charged for multiple violations; however, on occasion the State
has grouped several violations together in one order and applied only one penalty. No punitive
damages are available.
Natural Resource Damages
The State lacks authority independent of Federal law to recover for NRDs; however, four
claims are pending under CERCLA. The ADEM, the Department of Conservation and Natural
Resourpgs, and tKe State Oil and Gas Board are designated as trustee agencies.
I" '"!' | ] "'!'"*",!'!' "'i'1'™1™'1 | ' | ' 'i • • '"!!"' ,'" ''' ", ' '"! n ' '' ', ' " '",|, '''
Property Transfer
Alabama does not have any legal provisions governing the transfer of contaminated property.
. ... .. . . |
VOLUNTARY ^^ /._. .^^ ,,'^.j,.." 1,, ,.'"..'
In 1992, Alabama began using legally binding site-specific settlements as a means for
conducting voluntary cleanups. This methodology remains in place today and continues to be used
under general authority of the Hazardous Substances Cleanup Fund. All inactive sites except those on
the NPL are, eligible provided there is no enforcement action pending for a hazardous substance or
waste issue. The site must also have a contamination level low enough that an effective and efficient
cleanup is achievable. All parties are eligible to participate. Incentives for participation include
reduced regulatory oversight and cost, increased speed, and the possibility of a "No Further Action"
letter. As specified in the settlement agreements, participants reimburse the State's actual costs
including staff salaries, travel, and overhead. '
The State also implements an informal brownfields program through an alliance with EPA
Region 4. EPA must designate a site as a brownfield and provide a grant to fund the remediation
activities. ADEM then provides assessment and oversight in lieu of oversight responsibilities at
CERCLIS sites (established in another contract with Region 4). Cleanup standards are the same as
under the State's voluntary cleanup program. To date, two sites have been identified for the program
and have committed to redevelopment.
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FLORIDA
SITES
NFL Sites
Final:
Proposed:
Deleted:
64
1
12
State Sites
Known and Suspected: 1900
Identified as Needing Attention: 1094
On Inventory or Priority List: 44
STATUTORY AUTHORITIES
The Pollutant Discharge Prevention and Removal Act, Fla. Stat §§ 376.30 through 376.85,
authorizes the Water Quality Assurance Trust Fund and a priority list. The statute also provides
authority for enforcement, voluntary cleanups, and water replacement. Sections 376.77 through
376.85, the Brownfields Re development Act, establish the State's brownfields program, eligibility
criteria, and the process by which an area may be designated abrownfield. Florida Statutes, Chapter
403 establishes general authority for enforcement, citizen suits and natural resource damage claims.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection (DEP), Division of Waste Management,
Bureau of Waste Cleanup employs 71 FTE staff. Of the 71, approximately 35 work on non-NPL
superfund-type cleanup issues. In addition to the 35 FTEs in the Bureau's headquarters office, the
DEP's six district offices employ a total of 37 FTEs in their Waste Cleanup sections who also work
on non-NPL superfund-type cleanup issues. The district staff includes six Brownfields Coordinators
(one per district) who oversee voluntary cleanup of brownfields sites. Legal support is provided by
two attorneys in DEP's Office of General Counsel. Funding for staff and administration comes from
the State cleanup fund (90%) and Federal grants/cooperative agreements (10%).
CLEANUP ACTIVITIES
Cleanup activities are underway at approximately 1,094 non-NPL sites. During FY97,
cleanup activities were completed at 67 non-NPL sites. Since the start of Florida's program, cleanup
activities have been completed at 555 non-NPL sites. It is unknown how many of these cleanups
were or are being handled through the State's informal voluntary cleanup program.
Cleanup activities have increased dramatically during the past few years due to the recent
inception of the Drycleaning Solvent Cleanup Program, which offers State-funded cleanups at
contaminated drycleaning sites. In the past several years, DEP has determined over 900 applications
to be eligible for the program and hired 10 contractors to begin remediating those sites.
Four criteria are used for listing a site on the State's priority list and spending State funds on
remediation: (1) the site is not on the NPL (exceptions apply if Federal funding limitations require
State monies to complete the activity or when Federal cleanup activities are not prompt enough to
alleviate an impending danger to the environment or public health); (2) the site has been given a
score by use of the existing Mitre Model; (3) enforcement and permitting actions have resulted in
technically inadequate or delayed cleanup; and (4) the expenditure of funds could eliminate or
minimize further environmental degradation and/or existing public health threats.
CLEANUP FUNDING
The Water Quality Assurance Trust Fund (WQATF) had a balance of $24.5M at the end of
FY97. The Fund's balance has increased significantly during the past few years, because the former
Hazardous Waste Management Trust Fund was consolidated into the WQATF and the new
Drycleaner Solvent Cleanup Program began contributing revenues. The current balance includes
monies used to fund activities other than hazardous substance cleanup programs. A total of $10.6M
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SWi.il :":
II! ii: •! !",
was obligated at the end of FY97. No additions were made to the fund during the fiscal year, but
S22.2M were paid out. The most significant source of funding was taxes, and additional minor
funding came from interest, fees, and transfers. DEP receives an appropriation from the Florida
Legislature for each fiscal year, which is the authority to spend the revenues granted. Authorized uses
of the Fund include site investigation, CERCLA match, studies and design, operations and
maintenanc^ feifiSvals, 'emergency response, grants to local governments, remedial actions, program
I dministratiqn, and natural resource restoration.
C tEANWTDLieiES AND CRITERIA
For Gl and Gff aquifers, State drinking water and groundwater standards apply since they are
Smsidered potable resources. Soil cleanup target levels are generally based on default levels
established for residential and industrial uses that incorporate exposure: assessment and teachability.
Instead, parties may conduct a site-specific risk assessment to derive alternative cleanup target levels.
However, DEP's authority to apply site-specific cleanup levels has come into question as a result of
the new Brownfields Redevelopment Act, which specifically authorizes the use of site-specific criteria
at brownfields sites. Since there is no statutory authority to use the same methodology at other sites,
the legality of doing so has become a point of concern.
Cleanup criteria for the hazardous substance cleanup program are based on risk assessment,
background levels, water quality criteria, MCLs/MCLGs, groundwater standards, soils standards, and
land use considerations. Each of these criteria is prescribed by law as well as policy or ad hoc
decisions. Cleanup criteria for the voluntary cleanup program are based on background levels, water
quality criteria, SfCiCs/IVfCLGs, groundwater standards, and soil standards. Each of these criteria is
prescribed by policy or ad hoc decisions. Land use assumptions are based on local planning board
determinations, current arid projected use, and individual site characteristics. Specified land use may
be ensured through deed restrictioris, use restrictions, and restricted zoning. Numerical risk goals are
set at 10"6 for carcinogens and a Hazard Index of 1 or less for noncarcinogens.
111" i; i .'I-
PUBLIC PARTICIPATION
The JBrownfields Redevelopment Act includes specific public participation requirements
including public hearings/meetings, public notice of certain agency decisions, and provisions for
public comment. For nonbrownfield sites, citizen participation is not required by statute but exists on
an ad hoc basis. Citizen involvement varies on a site-specific basis as per request by individual
parties, and may include door-to-door outreach, public meetings, and public comment opportunities.
^dili ''I'1 • "• ' ' 'i • "> . .«» li:
Wit j; ,.,..• '„• Malic aw '' -' i, ;. ' .: i;,i • i"::1 B'i1: • i I:,; 1;.: . ; •• :, i . • i, • .',;
[,pNJFQRC:EMENT . _
Liability
Legal authorities include retroactive, strict, joint and several liability. Civil penalties of up to
$50K per day are available for continued violations under the Resource Recovery and Management
Act, Chapter 403, Fla. Stat. Punitive damages are not available. The Department does not have
tihilateral order authority. The.enforcement process includes warning notices, consent orders, notices
of violations, civil suits, and appeals.
Natural Resource Damages
Independent State authority for NRD claims is specifically provided by Fla. Statutes 403.141,
i'l7"26, .727,453. ill (noncoastal oil spills), Chapter 376 (coastal oil spills and underground storage
tanks), and 253 .(R (coral reefs). The statute of limitations runs for four years from the date of
I''1"! i; ' • . : t"jv i'Siu : : .• : ' 'i1 • • '• i • p •''..,. n i ill '•' . '"" . " '" "iiv:11
;:S I ••<
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discovery unless there is a continuing source, in which case no statute of limitation applies. DEP is
designated as the trustee agency.
The State has been seeking NRDs since 1980. The measure of damages sought varies on a
case-by-case basis and is determined using contingency valuation and other specific methods.
Natural resource damages penalties and cost recoveries are generally placed in the Ecosystem
Management and Restoration Trust Fund (EMRTF), for restoration, replacement, and protection
actions. Monies awarded from an individual claim are not necessarily used to fund restoration
projects associated with that claim. Expenditures from the EMRTF must be approved by the State
legislature. While public participation in natural resource damage assessment or restoration is not
required by law, DEP often provides notice of restoration decisions and allows parties to become
involved in the decision-making process.
Property Transfer
Florida does not require notice of on-site contamination prior to property transfer. Under Fla.
Stat. 3 76.3 08, the State provides a limited "due diligence" exemption from liability for sites
contaminated with dry cleaning solvents that are purchased after My 1, 1994. The potential purchaser
has the burden of investigating past uses and ownership of the property. Parties with more knowledge
and experience with contamination are held to higher standards for the extent of inquiry. The State
also maintains a database of known or listed sites. Institutional controls include deed restrictions, use
restrictions, and restricted zoning.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State conducts an informal voluntary cleanup program whereby parties are referred to
the appropriate district staff for cleanup assistance. Informal negotiations are then conducted and a
consent order may be signed. Parties are required to follow technical guidance documents throughout
cleanup. There are no restrictions on eligibility of persons, nor are there any incentives for
participation. All sites except those on the NPL are eligible to participate. Funding for the State's
participation comes out of the State's general budget.
Florida also has a brownfields program, enacted by statute on My 1, 1997. The Brownfields
Redevelopment Act permits any person who has not caused or contributed to the contamination of a
brownfield site after enactment of the law to participate in the program. Certain restrictions apply to
sites subject to Federal or State enforcement. Also, the statute establishes a process through which
"brownfield areas" may be designated by local government by resolution with appropriate public
notice and hearings. In designating a brownfield area, the local government must consider nine
specific issues outlined in the statute. The Brownfields Cleanup Criteria Rule (presently undergoing
rulemaking) establishes default cleanup target levels (CTLs) and authorizes alternative CTLs on a
site-specific basis. Regulatory incentives for participation include liability protection for program
participants (and lenders under certain conditions) from State and third party claims, issuance of "No
Further Action" letters, and "Risk Based Corrective Action" whereby participants may be allowed to
use alternative CTLs along with institutional and engineering controls to manage risk by controlling
exposure. Economic incentives include a "Bonus Refund" whereby participants receive $2.5K for
each new Florida job created in a brownfield area. The Brownfields Act also encourages State and
local governments to offer redevelopment incentives such as tax credits, low interest loans, and
streamlined permitting. Further incentives such as a loan guarantee program and a tax credit
incentive for private sector participants are currently being proposed in the legislature.
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1012
126
375
GEORGIA
SUES
£i;l..i. NPL Sites State Sites . \
Final: 16 Known and Suspected:
Proposed: 2 Identified as Needing Attention:
Deleted: 2 On Inventory or Priority List:
STATUTORY AUTHORITIES
the jjazafdous Site Response Act of1992 (HSRA), O.C.Cj.A" 12-8-90 etseq. as amended,
establishes a cleanup fund, enforcement authorities, strict, joint and several liability, punitive
damages, property transfer provisions, and a priority list. O.C.G.A. 12-8-96.3, a 1996 amendment to
the HSRA, limits the liability of third parties engaged in voluntary cleanups for pre-existing releases.
The Hazardous Site Reuse and Redevelopment Act of 1996 (HSRRA), O.C.G.A. 12-8-200, as
amended 1998, limits liability for non-responsible parties who voluntarily enter into consent decrees
with the Environmental Protection Division to clean sites listed on the hazardous site inventory to
State standards.
ii iii
nil in
PROGRAM ORGANIZATION AND FUNDING
The Georgia Department of Natural Resources, Environmental Protection Division (EPD),
Hazardous Sites Response Program had 39 FTEs at the end of FY97. A total of 42 FTEs are
currently authorized. The State Law Department provides legal support with one FTE attorney. All
'' came from the State cleanup fund.
, ,. , , , ,„.. ..... ........ , ..... ,. ,..„. .„, ,. ,,
• !'CJeSip 'activities''^ underway at 244 non-NPL srtes,"205 of which' are being handled
t|rougji "tne°wlimtary program. During FY97, cleanup activities were completed at 34 non-NPL
^^•|' j'1 Q^^pg^gjg'^^g^ through the voluntary program. Since the start of Georgia's program,
cleanups have been completed at 91 non-NPL sites, 39 of which were handled through the voluntary
cleanup program. Cleanup activity has increased dramatically during the past few years, because the
State adopted corrective action rules and cleanup standards, began enforcing them, and spent $42M
on site remediation.
Listing criteria for me State's priority list are based on a report
"tfiaf "mathematically integrates data on contaminant release and exposure to generate a
SCOT® for the site. If the score is above a determined threshold, the site is then placed on the
priority list. Of the 56 operational facilities identified as needing attention, 41 are manufacturing
sites, 7 are municipal landfills, and 7 are industrial landfills.
CLEANUP FUNDING
The Hazardous 'Waste Trust Fund had a balance of $1.1 Mat the end of FY97. A total of
$13.8M was 'obligated or encumbered: $9.7M for NPL sites and '$4.1M for non-NPL sites. Additions
to the fund during me fiscal year totaled $10. I'M A total of $17. 6M was paid out: $6.2M to NPL
Sites and $il"4'M"to non-NPL sites. Significant sources of funding include solid waste fees and civil
penalties. Minor funding was provided by hazardous substance reporting fees, hazardous waste fees,
and interest. In other years, hazardous waste fees were a significant source of funding, but this year
their respective contribution to the fund's balance was dwarfed by unusually high civil penalty
revenues. All fund additions must be authorized by the General Assembly and deposited through the
General Treasury. Authorized uses of the fund include site investigation, studies and design,
;:!' f
mo1
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operations and maintenance, removals, emergency response, grants to local government, remedial
actions, program administration and pollution prevention.
CLEANUP POLICIES AND CRITERIA
EPD uses statutory authority and guidelines to establish cleanup standards. State law
prescribes background levels, water quality criteria, MCLs/MCLGs, groundwater standards, soil
standards, and land-use based considerations. Land use assumptions are based on reasonably
anticipated future use, and realized through restrictive covenants, enforcement orders, and deed
notices. Cleanup standards are based on whether the site will be used for residential or commercial
purposes. Responsible parties have the option of applying standardized or site-specific cleanup levels
for the appropriate land use. Groundwater use is presumed to be for human consumption. Although
risk assessment is not formally integrated in the Hazardous Sites Cleanup Program, it is frequently
used in site-specific exposure evaluations based on standardized exposure assumptions. Risk goals
used to determine cleanup standards are 10"5 for cancer risks and 10"4 for Class C carcinogens.
PUBLIC PARTICIPATION
State law requires that public notice and opportunities for public comment be provided for
cleanup decisions. Hearings/meetings are also provided on an ad hoc basis.
ENFORCEMENT
Liability
The Hazardous Site Response Act establishes strict, joint and several, and retroactive
liability. Civil penalties up to $25K per day may be assessed, and treble punitive damages are
available.
Natural Resource Damages
The State has no authority independent of Federal law to recover for NRDs. However, the
Environmental Protection Division is designated as a natural resource trustee.
Property Transfer
The owner of any site designated by EPD as needing corrective action is required to disclose
on the deed or with the recorder of deeds that the site was or is contaminated with a hazardous
substance. The State maintains a database of listed sites; a lien may also be placed on the property
when State funds are expended. Land use institutional controls include deed notices, restrictive
covenants, and enforcement orders.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State provides an informal mechanism for voluntary cleanups. The Hazardous Site Reuse
and Redevelopment Act of 1996, as amended 1998, provides limited liability for non-responsible
parties who voluntarily enter into consent decrees with the Environmental Protection Division to
clean Hazardous Site Inventory sites to State standards. This provision is limited to prospective
purchasers of Hazardous Site Inventory sites. Until recently, the provision was limited further to sites
that are in a State of disuse or abandonment, but the State expanded the mechanism in FY98 by
deleting this restriction. While responsible parties are ineligible for voluntary cleanups under the
Hazardous Site Reuse and Redevelopment Act, they may engage in voluntary cleanups through a
component of the Hazardous Site Response Act of 1992. Incentives for voluntary cleanups include
protection from cost recovery actions for monies already spent by the State on site cleanup, and
limited third party liability for pre-existing releases. The State does not charge a fee for its services in
voluntary cleanups, as its participation is funded by the Hazardous Waste Trust Fund.
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KENTUCKY
SITES
NPL Sites
"'Final; ' "™:, 20
Proposed: 0
Deleted: 4
State Sites '
Known and Suspected: 1900
identified as Needing Attention: 850
On Inventory or Priority List: 1350
... .. . ..
Kentucky Rev. Stat. Ann. 224.46-580 establishes the Hazardous Waste Management Fund
and includes provisions for expenditures. KRS 224.01-400 establishes release notification, reportable
quantities, and enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Department for Environmental Protection (DEP), Division of Waste Management,
Superfund Branch employs 29" FIE staff who work on Federal sites, State sites, petroleum cleanups,
and radioactive disposal sites. Non-NPL sites are handled by approximately 13 FTEs from the State
Superfund Section and the Federal Superfund Section. Municipalities and county governments
handle some cleanups without State involvement; in most cases, such cleanups take place at
Irownfield sites. Legal support for State activities is provided by 2.5 FTE attorneys from the Office
6f Legal Services. Funding for staff and administration comes from Federal grants (60%) and the
State's general fund (40%).
CLEANUP ACnVTTIES
Cleanup activities are currently underway at 300 non-NPL sites. During FY97, 50 cleanup
activities were completed at non-NPL sites. Since the start of Kentucky's program, approximately
600 cleanups have been completed at non-NPL sites. Because Kentucky does not have a formal
voluntary cleanup program, all cleanup activities have been initiated by the State.
Any site that is reported as having contamination is added to the State priority list; later
evaluation determines if a release actually occurred and if work is needed. Of the 850 sites identified
as needing attention, approximately 30 are municipal landfills, 12 are industrial landfills, 53 are
former landfills, and 755 are manufacturing sites.
CLEANUP FUNDING
The Hazardous Waste Management Fund (HWMF) had an approximate balance of $4M at
the end of FY97. The fund's balance is capped at $6M. During the fiscal year, $4.4M were added to
the fund, $1.8M were paid out to non-NPL sites, and $2.1M were obligated for use at non-NPL sites.
All fund revenues come from waste fees. The HWMF may be used for site investigation, studies and
design, removals, emergency response, remedial actions, CERCLA match, operations and
maintenance, program administration, and natural resource restoration.
CLEANUP POLICIES AND CRITERIA
State law permits responsible parties to select either a risk-based standard or background
levels as the basis for cleanup. The risk-based standards are based on a target risk level of 10"6 for
carcinogens and a Hazard Index of 1 for noncarcinogens. If the risk is less than 10"6, "No Further
Action" is required. Parties who wish to employ a risk standard less stringent than 10"6 must justify to
the risk assessment group within the Department of Environmental Services that the proposed
remedy will adequately protect human health and the environment. In some cases, RPs may
implement engineering and/or institutional controls (e.g., deed restrictions) as alternatives to
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thorough cleanups. Remedies that are less protective than 10~6 are generally only acceptable with
respect to soil; usually water must be cleaned up to 10"s. Ultimately, cleanup criteria will depend on
whether the properly is used for residential or commercial purposes. Land use determinations are
based on past and future use, as well as the location of the property.
PUBLIC PARTICIPATION
Kentucky has a Public Information Repository for NPL and State priority list sites. It is
standard practice for the State to give public notice, provide opportunities for public comment, hold
public hearings or meetings, and provide grants to citizen groups.
ENFORCEMENT
Liability
Kentucky has strict, joint and several, and retroactive liability standards. Punitive damages
are not available, but the State has authority to invoke civil penalties up to $25K per day for violation
of a cleanup order.
Natural Resource Damages
Kentucky does not have a NRDs program, but the Natural Resources and Environmental
Protection Cabinet is designated as a natural resource trustee.
Property Transfer
General provisions of the State's real estate law require that sellers disclose the presence of
hazardous substances on site before transfer. While not specified by statute, Kentucky may also
require deed disclosure of on-site contamination through the remedy selection process. Liens are
available for removal and remedial costs incurred by the State. The State maintains a database of
sites where a known release has occurred.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Kentucky has no formal voluntary cleanup program, but anyone is welcome to initiate a party
lead cleanup through DEP. Since there is no special voluntary program, cleanups initiated by private
parties will be handled through the regular cleanup program and no incentives will be offered.
However, under Senate Bill 219, if a municipality buys a property and cleans it up to the
standards established in KRS 224.01-400, it can receive a "No Further Action" letter. Two or three
sites have used this provision. The State is currently using existing legislation to develop guidelines
for a formal voluntary cleanup/brownfields program.
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MISSISSIPPI
I
SUES
NPL Sites
Final:
Proposed:
Deleted:
2
3
2
State Sites
Known and Suspected: 960
Identified as Needing Attention: 500
On Inventory or Priority List: 200
STATUTORY AUTHORITIES
The Solid Waste Disposal Act of 1974 (amended numerous times, most recently in 1990),
Ivfiss. Code Ann. §17-17-29(4) and (6), establishes a cleanup fund, authorizes the Voluntary
Evaluation Program (§17-17-54), and provides enforcement authorities.
The 1988Amendments[tgjheAir and Water Pollution Control Act, Miss. Code Ann, §§49-
17-1 et seg., authorize response actions, establish natural resource damage provisions, and create the
Pollution Emergency Response Fund (Miss. Code Ann. §49-17-68).
The Wromfields Voluntary Cleanup Act (S. 2989), effective July 1, 1998 but not yet codified,
directs the Department of Environmental Quality (DEQ) to promulgate implementing rules by
January 1,1999, and to survey 49 States about their voluntary cleanup incentives and recommend
incentives for the Mississippi brownfields program to the legislature for promulgation by January 1,
1999.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Office of Pollution Control's Hazardous Waste Division
employs 10 FTE staff, although 11 are authorized. Legal support is provided by four FTE attorneys
from DEO/s; legal staff and the Mississippi Attorney General's Office. Staff and administrative costs
are funded tfirpugE the State general fund (50%) and Federal grants/cooperative agreements (50%).
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 60 non-NPL sites, two of which are voluntary.
During FY97, cleanup activities were completed at 20 non-NPL sites, two of which were voluntary.
Since the start of Mississippi's program, cleanup activities have been completed at 112 non-NPL
sites, two of which were handled through the voluntary program.
Mississippi does not have an official priority list, but the Superfund Section maintains a
ranking for internal management purposes. Priority is given to sites with releases of hazardous
substances above target cleanup levels. The State considers the type of release that has occurred, the
type of contaminants involved, and whether or not human health is directly impacted by the release.
Of the 90 sites under active review, three are municipal landfills, four are industrial landfills, four are
manufacturing sites, two are recycling sites, and 77 are classified as "other" site types.
CLEANUP FUNDING
The Pollution Emergency Response Fund (PERF) was created in 1988 and had a balance of
S600K at the end of FY97. During the fiscal year, $1.5M were paid out: $250K to non-NPL sites and
$L25M to build a new laboratory. The PERF may be used for site investigation, studies and design,
removals, emergency response, and CERCLA match. The PERF receives significant funding from
cost recovery and civil penalties from the pollution regulatory programs. Interest is a minor funding
source?1 " ' ' " ' ' "" "" "'' " ' *'" ""'
The State General Fund had a balance of $0 at the end of FY97, but $300K were paid out
from the fund to non-NPL sites during the fiscal year. The fund is authorized to cover site
investigation, program administration costs, and the State's oversight function; in practice, it funds
I',, " I' , , imnr in'K.,1 > , . '"' , . , I ijii' ,r , , >„ j » , .[, , i ' , . ,,!,• ' ' . ;i , <
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four environmental engineers to work on uncontrolled sites that would not be addressed otherwise.
All fund monies come from State appropriations.
The Voluntary Evaluation Fund paid out $80K during FY97 to non-NPL sites. The fund may
only be used to cover the State's oversight function. All fund monies come from voluntary program
user fees.
Mississippi's CERCLA PA/SI Fund had a balance of $50K at the end of FY97. During the
fiscal year, $100K were added to the Fund and $100K were paid out to non-NPL sites. Fund monies
come from Federal appropriations (80%) and State appropriations (20%). The fund may only be used
for site investigation.
The State's CERCLA Core Grant Fund had a balance of $100K at the end of FY97. During
the fiscal year, $300,000 were spent on staff and administrative costs. The Fund's only authorized
use is program administration. Fund monies come from Federal appropriations (80%) and State
appropriations (20%).
CLEANUP POLICIES AND CRITERIA
Mississippi selects the higher concentration of background levels, detection limits, generic
risk calculations, and published pollution standards such as MCLs and TSCA PCB levels;
alternatively, responsible parties may seek approval of a site-specific risk assessment. Land use may
be considered if a legally agreed order requiring a deed restriction is in place to limit future use. If no
order is in place, it is assumed that the property will be used for residential purposes. Numerical risk
goals are 10"6 for carcinogens and U.S. EPA's Hazard Index for noncarcinogens. The same standards
apply under the Voluntary Evaluation Program.
PUBLIC PARTICIPATION
State policies provide for public notice via direct mailings, a public comment period, and
public meetings during the remediation process. Additionally, local governments and the governor
are notified when an emergency order is issued. The same public participation provisions apply under
the Voluntary Evaluation Program.
ENFORCEMENT
Liability
Mississippi has strict, joint and several, and retroactive liability, but proportional liability
may be applied where practicable. Cost recovery is authorized by S"ate law. The State may impose
civil penalties of $25K per day per violation plus the cost of removal and/or remediation and the cost
of restocking and/or replenishing killed fish. Punitive damages are not available.
Natural Resource Damages
Since 1972, State law has allowed DEQ, in consultation with the Mississippi Commission on
Wildlife, Fisheries and Parks, to recover costs of restocking and/or replenishing lost fish and wildlife.
The State began seeking NRDs in 1993. Information on claims awarded and pending is not available.
The Department of Environmental Quality is designated as the State's natural resource trustee.
Property Transfer
The Property Transfer Act (1993), Mississippi Code Ann. §89-1-501 to 523 requires written
disclosure of the presence of hazardous or toxic waste when property is transferred with the aid of
real estate brokers or salespersons.
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lUFif ','! !iV."
;;;,; ;;; '_;
i's Voluntary Evaluation Program was established by statute (§17-17-54) during
m is open to anyone not subject to regulation under a Federally mandated program.
Polluted or potentially polluted uncontrolled sites are considered eligible properties for participation.
The primary incentive for participation is expedited site review; a "No Further Action" letter may
also be earned when appropriate measures have been taken and approved. Respondents must pay all
direct and indirect costs of the State's involvement as well as a $500 fee for entrance into the
prbgrlin. The State's administrative costs are also funded through EPA grant money.
The Brownfields Voluntary Cleanup Act (not yet codified) goes into effect on July 1, 1998.
•jThe, statute directs DEQ to promulgate implementing rules by January 1,1999, and to survey 49
States about their voluntary cleanup incentives and recommend incentives for the Mississippi
brownfields program to the legislature for promulgation by January 1,1999. The only program
details specified in the statute are that risk assessment will be used to determine cleanup standards
and that liability protection will be provided.
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NORTH CAROLINA
SITES
N?L Sites
Final:
Proposed:
Deleted:
Vacated:
24
1
1
1*
State Sites
Known and Suspected: 1040
Identified as Needing Attention: 793
On Inventory or Priority List: 197
STATUTORY AUTHORITIES
The Inactive Hazardous Sites Response Act of 1987, N.C. Gen. Stat. §§130A-310 etseq.
(1987, as amended 1989, 1991, 1994, 1995), authorizes the Inactive Hazardous Sites Cleanup Fund,
provides authority to recover costs and order RPs to conduct assessments and cleanups, and
establishes a priority list and requirements for filing notices with registers of deeds. Recent
amendments affect the State's existing voluntary cleanup program.
The Brownfields Property Reuse Act of 1997, N.C. Gen. Stat. §§ 130A-310.30 through
310.40, establishes the State's brownfields program.
The Solid and Hazardous Waste Management Act, N.C. Gen. Stat. §130A-290 etseq., (1969,
as amended 1973, 1975, 1977, 1979, 1981,1983, 1985,1987, 1989, and 1991), provides limited
enforcement authorities and authorizes the Emergency Response Fund for emergency hazardous
waste cleanup.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Department of Environment ;and Natural Resources' (DENR')
Division of Waste Management employs 29.75 FTE staff; of these, approximately five FTE staff
work exclusively onnon-NPL sites. Legal support is provided by 1,5 attorneys and one paralegal
from the North Carolina Attorney General's Office. Funding for the Superfund Section comes from
Federal grants/cooperative agreements (79%) and the State's general fund (21%). The five FTE staff
who work exclusively on non-NPL sites are funded through the State's general fund.
CLEANUP ACTIVITIES
Cleanup activities are currently underway at approximately 85 non-NPL sites, 50 of which
are voluntary. During FY97, cleanups were completed at approximately 15 non-NPL sites, all of
which were voluntary. Since the start of North Carolina's program, cleanup activities have been
completed at approximately 250 non-NPL sites; all of these were handled through the voluntary
program.
DENR has chosen to dedicate its limited resources to facilitating voluntary cleanups instead
of pursuing enforcement and litigation. This is the primary reason why almost every cleanup activity
undertaken in North Carolina has been voluntary. Also, because the property value of contaminated
sites in North Carolina often exceeds the cost of cleaning them up, many parties are interested in
taking responsibility for cleaning up their sites.
CLEANUP FUNDING
The Inactive Hazardous Sites Cleanup Fund (IHSCF) had a balance of $2.7M at the end of
FY97. No funds were added during the fiscal year, but $180K were paid out to non-NPL sites and
By its own request, EPA removed one site from the NPL via court order without deleting it. The site never went
through a cleanup process.
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another $18Qi; were encumbered for non-NPL sites. The IHSCF originally received most of its
fioriey from appropriations, but no appropriations have been made to the fund since FY88-89. From
FY89 through FY95, penalties were the most significant source of funding, because the IHSCF
received RCRA penalty money when the Emergency Response Fund exceeded its $500K cap.
However, a school board recently discovered a State law that earmarks all penalty money collected in
a county for that county's education system. As a result, the only source of funding for the IHSCF is
interest, which contributed approximately 5-6% of the current fund balance in FY97. While cost
recoveries are authorized, there were no successful claims during FY97. The IHSCF may be used for
site investigation, studies and design, removals, emergency response, remedial actions, and the cost
of recording deed notices on inactive hazardous substance or waste disposal sites.
The Cost Share Trust Fund (CSTF) had a balance of $1.6M at the end of FY97. During the
fiscal year, S800K were added, $752.3K were paid out to NPL sites, and $5.5Ivt were encumbered for
NPL sites. The CSTF is funded primarily through appropriations of $800K per year, but cost
lecovery and interest are minor sources of funding. New language was recently instituted to authorize
the fund for use as needed for State priority sites. As such, the authorized uses have expanded to
include CERCLA match, studies and design, operations and maintenance, removals, victim
compensation, emergency response, and remedial actions.
The Emergency Response Fund (ERF) is available for emergency response and alternate
water supply provisions. Although it is administered by the Hazardous Waste Section of the Waste
ManagernentDivision, it is also used by the Superfund Section. The ERF is capped at $500K and had
the maximum balance at the end of FY97. During the fiscal year, approximately $6K was paid out to
non-NPL sites; all other expenditures were on RCRA sites. Like the IHSCF, the ERF's primary
source of funding used to be penally money that is now earmarked for the education system.
Currently, the ERF's sole source of funding is interest, which contributed approximately 5% of the
fund balance in FY97.
CLEANUP POLICIES AND CRITERIA
As required by statute, the Secretary of DENR will ascertain cleanup levels in conformance
with CERCLA and SARA requirements. North Carolina also requires consistency with the NCP.
Cleanup levels are calculated for each contaminant by environmental media based on site-specific
fisk assessment. Background levels, water quality criteria, MCLs/MCLGs, groundwater standards,
and land-use based considerations are also used where appropriate. Determinations about land use
are based on deed recordations and restrictions; if there is no deed restriction in place, it is assumed
that a property could be used for residential purposes. Numerical risk goals are 10~4 to 10"6 for
carcinogens and a Hazard Index of 1 for noncarcinogens. Cleanup standards under the voluntary
cleanup program are identical to those under the hazardous substance cleanup program.
PUBLIC PARTICIPATION
By law, North Carolina requires that public notice, opportunity for public comment, and
hearings/meetings be provided for cleanup decisions at sites under enforcement action. The same
requirements apply for sites being cleaned up through the voluntary program.
ENFORCEMENT
Liability
North Carolina has strict, joint and several, and retroactive liability. Under the Inactive
Hazardous Sites Response Act, the Secretary of DENR must seek voluntary action by RPs before
issuing orders or spending State funds. However, the State has authority to issue orders for cleanup,
order monitoring and assessment, and seek injunctions to conduct assessments and correct imminent
hazards. Although the Inactive Hazardous Sites Response Act has no provision for civil penalties,
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civil penalties of up to $25K per day for a first-time hazardous waste violation and $5K per day for a
solid waste violation are available. The State cannot impose punitive damages.
Natural Resource Damages
North Carolina has no State law authorizing NRD claims, but DENR is designated as a
natural resource trustee.
Property Transfer
Property owners must register a notice of on-site contamination with the grantor index in the
deeds office when requested to do so by the State (via mail). At the next property transfer, the notice
will appear on the deed. Also, under N.C. Gen. Stat. Chapter 47E Article 1, sellers of residential
property are required to disclose the presence of hazardous or toxic materials before transfer. The
State maintains a database of known and listed sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
In 1987, the North Carolina legislature included voluntary cleanup provisions in the Inactive
Hazardous Response Act. Under recent statutory amendments enacted to accommodate the
fluctuating volume of voluntary cleanups, the State privatized the oversight function through the use
of registered environmental consultants. DENR approves private contractors whom program
participants must pay to oversee cleanup activities and certify the site as clean. Participants also pay
the State a $2K audit fee, which is deposited into a fund DENR uses to audit some sites; any unused
portion of the audit fund is refunded to the contributors. Apart from the audit fee, participants are not
responsible for the State's costs; any State services other than audits are funded through
appropriations. When sites are certified as clean, program participants may purchase a "No Further
Action" letter from DENR for $500. Other incentives for participation are property transfer and
liability limitations. Any person or site is eligible to participate except those being regulated under
other programs. Remedial action costs for volunteers are capped at $3M, as provided by law.
In 1997, North Carolina passed the Brownfields Property Reuse Act, which establishes a
brownfields program independent of the voluntary cleanup prograjtn. The brownfields program is
open to non-responsible parties who are interested in buying or selling contaminated property. The
program differs from the voluntary cleanup program in its focus oh redevelopment, as opposed to
remediation. Because the intent of the program is to return sites to1 productive use, participants are
only required to manage contamination to the extent necessary to adequately protect human health
and the environment. Cleanup is not required if exposure pathways can be removed through alternate
means. In cases where cleanup is not necessary, DENR may require participants to conduct long-
term monitoring of the contamination or further research for the Department's use in pursuing cost
recovery actions against RPs. Numerical risk levels used to determine the extent of contaminant
management required are 10"4 to 10"6 for carcinogens and a Hazard Index less than 1 for
noncarcinogens. Participants pay a $2K "filing fee," which covers DENR's costs of evaluating the
site and negotiating a cleanup agreement. Once cleanup is complete, participants have the option of
purchasing a "No Further Action" letter for $500. A liability limitation is also available for
participants who remediate on-site contamination prior to redevelopment. To date, one site has
entered into the program; cleanup is underway and it has a commitment for redevelopment.
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SOUTH CAROLINA
SITES
NPL Sites State Sites ;
Final: 27 Known and Suspected: 603
Proposed: 0 Identified as Needing Attention: 150
Deleted: 1 On Inventory or Priority List: 150
STATirfORYAUTHORiTiES "" '' ' ' "' ' '' " '"l!:"'! ..... '''''''I ......
The Hazardous Waste Management Act, South Carolina Code Ann. §44-56-10 etseq.,
establishes general enforcement authority, a cleanup fund, and provisions governing contaminated
property transfer.
PROGRAM ORGANIZATION AND FUNDING
South Carolina's superfund program is handled principally by the Department of Health and
Environmental Control (DHEC), Bureau of Land and Waste Management, Division of Site
Assessment and Remediation (DSAR). The Division of Hydrogeology (DH) also employs staff who
provide support to DSAR and other offices. Between the DSAR and the DH, the State superfund
program employs a total of 45 FTEs. Legal support is provided by 1.5 FTE attorneys from the DHEC
Office of General Counsel, funded entirely through the agency's overhead. Funding for program staff
and administration comes from Federal grants (77%), the State cleanup fund (17%), and the State's
general fund (6%).
Cleanup activities are currently underway at 53 non-NPL sites, 44 of which are being
handled through the voluntary cleanup program. During FY97, cleanup activities were completed at
seven non-NPL sites; each of these was handled through the voluntary cleanup program. Since the
start of the program, cleanups have been completed at approximately 36 non-NPL sites, 35 of which
were handled through the voluntary program.
South Carolina has a "projects list," which includes all sites that have been identified as
having contamination and possibly needing cleanup. Most applicable sites are identified using the
CJ|RJ3LIS! rjist an4|he j^L. Once ^ site is lisj;e,d, it undergoes a State scoring process (that
emphasizes risk, exposure, and human health endangerment) to determine its eligibility for State
fug(|s.P^ capacity and willingness to finance cleanup activities also affect a site's eligibility for
State funds. Of the sites identified as needing attention, 135 are manufacturing sites, seven are
municipal landfills, four are industrial landfills, and four are recycling sites.
•line Hazardous Waste Contingency Fund (HWCF) had a balance of $25M at the end of
FY97, Buiing me fiscal year, $526.6K were paid out to non-NPL site's". At the end of FY97, a total of
$|0,7M were. p;bli|ated or encumbered: $1.3M for NPL sites and $19.4M for non-NPL sites.
Alditions during the fiscal year totaled $1M. The HWCF's only significant source of funding was
waste fees. Cost recovery was a minor source. Authorized fund uses include site investigation,
CERCLA match, studies and design, operations and maintenance, removals, emergency response,
remedial actions, and program administration.
South Carolina had a balance of $104K in appropriated funds at the end of the fiscal year.
During FY97, a standard appropriation of $104K was added to the fund and the same amount paid
out, all to non-NPL sites. Another $104K were encumbered for use at non-NPL sites. The Fund's
pb'sitive balance is unusual, because the State generally spends the entire yearly appropriation in the
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fiscal year it is provided; FY97's positive balance is a result of unspent monies rolled over from
FY96. Authorized uses include site investigation, CERCLA match, studies and design, operations
and maintenance, removals, emergency response, and remedial actions.
CLEANUP POLICIES AND CRITERIA
The State uses statutory authority and guidelines to establish cleanup standards. State law
prescribes water quality criteria, MCLs/MCLGs, and groundwater standards. Policy/ad hoc
guidelines prescribe risk assessment of carcinogens and noncarcinogens, background levels, and land
use based considerations. For the selection and application of standards, DHEC evaluates the
feasibility of reaching a baseline risk goal. Adjustments to cleanup standards may be made based
primarily on land use and also on technical practicability. To make land use determinations, DHEC
looks at current land use and evaluates the likelihood that mechanisms such as zoning requirements
and deed restrictions will maintain that use in the future. DHEC may require permanent deed notices,
and mechanisms such as zoning requirements and deed restrictions may be implemented through
other entities. Numerical risk goals are 10~6 and a Hazard Index of 1.
PUBLIC PARTICIPATION
The State has no formal public participation requirements, but it follows the NCP and
provides public notice, opportunities for public comment, and hearings/meetings on an ad hoc basis.
A proposed statute (Article 7 of the Hazardous Waste Management Act) addresses public notice
requirements under the voluntary cleanup program. :
ENFORCEMENT
Liability
The State uses strict, joint and several, and retroactive liability. The State may asses civil
penalties of $25K per day and treble damages for failure to clean up a site as ordered.
Natural Resource Damages
NRDs may be assessed under the South Carolina Pollution Control Act, but this authority has
not been used for hazardous substance sites. The Department of Natural Resources, DHEC and the
Governor's office are designated as natural resource trustees.
Property Transfer
South Carolina does not have any law governing the transfer of contaminated properties.
However, in cases where properties are remediated to substandard levels because of land use
considerations, the agency may require deed notices to be implemented through RODs. Institutional
controls such as zoning requirements and deed restrictions may be implemented through entities
other than DHEC.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
South Carolina's voluntary cleanup program is a component of the hazardous substance
cleanup program. It was established as a procedure in 1988, and legislation to incorporate the
program into the State's Hazardous Waste Management Act is currently pending. The program does
not categorically exclude anyone from participation, but the agency has discretion to reject any
contract for reasons such as financial inability to comply. All sites are eligible to participate with the
exception of petroleum-only sites, NPL sites, and permitted sites where assessment and remediation
is required by permit. Incentives for participation include covenants not to sue for successful
completion of work and contribution protection for non-RPs. State oversight costs are funded by
participants. RPs must pay actual costs, but non-RPs' fees are negotiable.
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The State's brownfields program is included in the voluntary cleanup program guidance.
Criteria for Inclusion arei me same as those under the voluntary program. Cleanup standards are also
identical to those of the voluntary program, although non-RPs are not necessarily required to
is/remediate .sitesto extentthat JRPs must. In some cases, non-RPsareexempted from certain media
actions. However, for required media actions, non-RPs are held to the same standards imposed on
RPs. Incentives for participation in the program include a covenant not to sue for successful
completion of work and contribution protection for non-RPs. To date, seven sites have been
identified for the program and committed to redevelopment. Cleanup is currently underway at all of
those sites.
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TENNESSEE
SITES
NPL Sites
Final:
Proposed:
Deleted:
18
2
5
State Sites
Known and Suspected: 1360.
Identified as Needing Attention: 234
On Inventory or Priority List: 141
STATUTORY AUTHORmES
TheHazardous Waste Management Act of 1983 (as amended 1986, 1988, 1989, 1990, 1991,
1994, and 1995), Part H, Term. Code Ann. §68-212-201 et seq., establishes a State superfund
program, authorizes the Hazardous Waste Remedial Action Fund, provides authority to take or
compel remedial actions, establishes apriority list, and requires a deed notice for any listed site.
Recent amendments allow the State to spend fund monies on sites not on the priority list provided
that an order is in place, and to fund orphan shares of cleanups handled through the voluntary
cleanup program. A voluntary cleanup oversight and assistance program and a dry cleaner
environmental response program were added by amendment in 1994. The Dry Cleaner
Environmental Response Fund was established by legislation effective June 13,1995, and rules put
into place on October 15,1997.
PROGRAM ORGANIZATION AND FUNDING
The Tennessee Department of Environment and Conservation's (DEC's) Division of
Superfund employs 65 FTE staff, although 74 are currently authorized. Of the 65 employed, seven
FTEs are dedicated to the States' Dry Cleaner Environmental Response Program, which covers non-
NPL sites contaminated with petroleum-based or VOC-based compounds. Legal support is provided
by approximately two FTE attorneys from DEC's Office of General Counsel and the State Attorney
General's office. Staff and administrative costs are funded by the State general fund, the State
cleanup fund, and Federal grants/cooperative agreements. Together, the cleanup fund and the general
fund cover 77.6% of staff and administrative costs. It is not possible to distinguish each fund's
respective contribution. Federal grants/cooperative agreements contribute the remaining 22.4%.
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 141 non-NPL sites, 43 of which are voluntary.
During FY97, cleanup activities were completed at 22 non-NPL sites, five of which were voluntary.
Since the start of Tennessee's program, cleanup activities have been completed at 138 non-NPL sites,
18 of which were handled through the voluntary program.
The State's priority list is the subset of sites identified as needing attention where cleanup
activity is currently underway. To qualify for listing, a site must have a hazardous substance present
and a release to the environment must have occurred. Sites may be added to the priorityjist
voluntarily or by State promulgation. In addition to the priority list, Tennessee maintains both a State
inventory and a registry, but sites added voluntarily to the priority list do not automatically appear on
either of these two lists; most sites promulgated to the priority list by the State also appear in the
inventory or the registry. The inventory, which is analogous to the CERCLIS list, includes 1360
inactive sites where a hazardous substance may be present and may have been released into the
environment. The registry, which is analogous to the NPL, includes 136 inactive sites where a
hazardous substance is present and either there has been a release or there is potential for a release
into the environment. Not all of the sites in the registry are being addressed actively at this time.
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Of the 234 sites identified as needing attention, 19 are municipal landfills, three are industrial
landfills, 64 are manufacturing sites, four are recycling sites, and 144 are classified as other site
types- "'
CLEANUP FUNDING
The Hazardous Waste Remedial Action Fund (HWRAF) had a balance of $7.6M at the end
of FY97. During the fiscal year, $5.3M were added to the fund and $7M were paid out. Fund
expenditures have increased significantly during the past two years, because many sites have
progressed from investigation to remediation. The HWRAF may be used for program administration,
site investigation, emergency response, removals, remedial actions, studies and design, operations
and maintenance, CERCLA match, and grants to local governments. Significant sources of funding
include appropriations, cost recovery, and fees imposed on generators, transporters, and treaters of
hazardous waste" Interest, penalties, and voluntary program user fees are minor funding sources.
The Dry Cleaner Environmental Response Fund had a balance of $2M at the end of FY97.
During the fiscal year, $1.6M were added to the fund, $6K were encumbered for future use, and
$249.8K were paid out. Authorized uses of fund monies include program administration, site
investigation, removals, remedial actions, studies and design, and operations and maintenance. In
FY97, most expenditures covered program setup costs, salaries, and private contractors. Significant
sources of funding include voluntary program user fees and a solvent surcharge paid by dry cleaners
arid suppliers as an annual business registration fee.
CLEANUP POLICIES AND CRITERIA [
Tennessee superfund rules allow the liable party to propose cleanup levels, subject to
Department approval, based on risk assessment, background levels, water quality criteria, and
MCLs/MCLGs. Land use considerations are also considered as a component of the risk
characterization, Assumptions about land use are based on the current use of the site and surrounding
"property, the type of business located on the property, and local zoning. Specified land use may be
guaranteed through deed restrictions and security measures, which are both required by regulation.
Risk goals are TO"5 for carcinogens and a Hazard Index of 1 for noncarcinogenic compounds with the
same endpoint. Cleanup criteria under the voluntary program are identical to those under the
hazardous substance cleanup program.
PUBLIC PARTICIPATION
Tennessee's public participation requirements include public notice provisions, opportunities
for public comment, and public meetings. A public meeting is required at the end of the RI/FS stage
for input in the development of the ROD, and rulemaking hearings must be held prior to any site(s)
being added or deleted from the State's priority list. Because Tennessee's public participation
requirements are tied to placement of sites on the priority list, unlisted sites handled through the
voluntary cleanup program are not subject to the same requirements.
ENFORCEMENT
Liability
The State statute establishes proportional and retroactive liability. DEC is responsible for
apportioning liability. The Commissioner of DEC is authorized to issue orders for site information,
access, and remedial response, to assess civil penalties up to $10K per day per violation or failure to
pay fees or file reports, and to impose punitive damages of up to 150% of the State's costs.
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Natural Resource Damages
Tennessee has been seeking NRDs under State law since the early 1970s. Specific figures for
the number and value of claims awarded and pending are not available, but DEC estimates that
hundreds of claims have been awarded under State water and solid waste laws. Information on claims
filed under CERCLA is not available. Tennessee bases the measure of damages and the value of
claims on the cost of restoration and/or lost use value of natural resources. Recovered funds are used
for restoration and protection of natural resources. Although public participation is not required in the
assessment or restoration process, it is encouraged in both cases. The Commissioner of DEC is
designated as the natural resource trustee.
Property Transfer
Tenn. Code Ann. §68-212-209 requires disclosure on the property deed or with the recorder
of deeds that listed sites were or are being used for disposal of hazardous substances. The State
maintains a database of properties known to have on-site contamination.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
In 1994, the legislature established a voluntary cleanup program open to all inactive
hazardous substance sites not listed on the NPL. Petroleum sites may be handled through this
program if they are also contaminated by another hazardous substance. Any willing and able party is
eligible to participate; typical participants include PRPs, affected third parties, buyers, sellers, and
lending institutions. Incentives for participation include release of liability pursuant to performance
under a consent order, "No Further Action" letter, payment of orphan shares, and exemption from
liens, deed notices, public hearings, and placement on the State's priority list. The State's services are
funded through a $5K participation fee, an EPA Core Grant, and full reimbursement by liable parties
of State oversight costs associated with site investigation and cleanup.
There is no formal brownfields program, but the State is working with businesses and local
governments to bring brownfield sites into the voluntary cleanup program.
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I FT 1 < "":'Hi > s1'!'"! mi" IP»' fJW'i'l":'Wf-'ill111"f""I !" if!!1!'!1" T! "! lt!! i
"r i if111!' rial n;»B?i.)tmTi nifri't VHI. my TIWH • HIIF BI^"* s
Region 5
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
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ILLINOIS
SITES
NPL Sites
Final: 39
Proposed: 5
Deleted: 1
State Sites
Known and Suspected: 5000
Identified as Needing Attention: 140
On Inventory or Priority List: 70
STATUTORY AUTHORITIES
The Environmental Protection Act, Title XVIH Section 58 (1970, amended every year from
1983-93, and 1995,1996), establishes the Hazardous Waste Fund for State site cleanups and provides
for enforcement, contaminated property transfer, and voluntary cleanups.
The Responsible Property Transfer Act, Public Act §86-679 (1988), mandates a seller to
disclose information regarding contamination on sites.
PROGRAM ORGANIZATION AND FUNDING
The Illinois Environmental Protection Agency, Bureau of Land, Division of Remedial
Management administers the State superfund program. The Bureau has 105 FTE staff, the number
authorized in FY97. The Division of Legal Counsel provides legal support for the program with
seven FTE attorneys. The State cleanup fund provides 66% of funding for the State cleanup program,
and Federal grants provide 34%.
The Voluntary Site Remediation Unit within the Division of Remedial Management
administers the voluntary cleanup program in Illinois.
CLEANUP ACTIVITIES
Cleanup activities are underway at 479 non-NPL sites, and cleanup activities at 78 sites were
completed during FY97. Since the beginning of the program, cleanup activities have been completed
at 323 sites.
Of the total number of cleanup activities underway, 439 are at voluntary sites. In FY97, 71
voluntary cleanup activities were completed. Since the beginning of the voluntary program, 283
voluntary cleanup activities have been completed.
Illinois maintains a priority list based on risks to human health and environment, project
costs, carry-over of previous year's projects, and benefits of an investigation and/or cleanup.
The State has categorized a portion of the sites it has identified as needing attention as
follows: 13 municipal landfills, 44 manufacturing sites, one mining site, and 25 "other types" of sites.
CLEANUP FUNDING
The Hazardous Waste Fund had a balance of $ 10.5M at the end of FY97. Funds paid out
during FY97 totaled $5M with $1. 1M spent on NPL sites, $2.4M spent on non-NPL sites, and the
remainder on program administration. The total amount obligated or encumbered during FY97 was
$3.2M, with $2.5M obligated to non-NPL sites, and $153K obligated to NPL sites. Additions to the
Fund during FY97 totaled $6.8M. Significant sources of this Fund are penalties, user fees, and cost
recovery. Appropriations, bonds, waste fees, taxes, interest, transfers, and private funds are minor
contributors. The State uses the Fund for site investigation, CERCLA matches, studies and design,
operations and maintenance, removals, emergency response, remedial actions, and program
administration.
The Environmental Protection Fund had a balance of $11.4M at the end of FY97. Total funds
paid out during FY97 were $3.8M with $2.1M allocated to NPL sites and $1.7M allocated to non-
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sites, The total amount obligated or encumbered during FY97 was $2.5M, Appropriations are
the only source of this Fund. The Fund is used for site investigation, studies and design, operations
and maintenance, removals, remedial actions, and program administration.
gLEANUPPOLICIES ANT^ CRITERIA'_ .. [ ] ,',.,11. ,,I , !,.. .,... |M. „
The SlSte employs background levels, water quality criteria, MCLs/MCLGs, groundwater
standards, sol! standards, and land-use based standards in conjunction with risk assessments to
determine cleanup levels. The State uses a Tiered Approach to Corrective Action Objectives
(TACO). The first tier employs traditional NPL standards such as State promulgated soil standards
and MCLs. The second tier provides for consideration of cutoff pathways while the third tier consists
|f risk-based standards. Cleanup standards are based on relative risks to human health using TACO
with a 10"6 risk goal.
The State uses deed restrictions and no further remediation letters as institutional controls to
ensure that specified land uses are maintained in the future.
'"""''' '''' '' ' i," ... i . I. i 'in,'• ,,' ii i| i " j
PUBLIC PARTICIPATION
Illinois does not have formal requirements for public participation in the cleanup process and
determines public participation on an ad hoc basis.
ENFORCEMENT
Liability
Liability standards are strict, joint and several, and retroactive liability. Proportional liability
is used at some sites. The State may impose civil penalties up to S50K per day for the first violation
and S10K per day for each subsequent day of violation. Triple punitive damages may also be
imposed,
Natural Resource Damages
The State does not have authority independent of Federal law to recover NRDs.
Property Transfer
The Responsible Property Transfer Act (Illinois Public Act 86-679) mandates environmental
disclosures by sellers. The State's residential property transfer law contains requirements for
disclosure of the presence of all environmental hazards prior to transfer of property containing one to
four residential units.
YOLUNTARY AND BROWNFIELDS PROGRAMS
The Illinois Environmental. Protection Act (as amended in 1996) established a voluntary
cleanup program in 1986. Sites with a release of hazardous waste into soil or groundwater are
eligible for the program, except for NPL, RCRA, and LUST or sites with other enforcement
proceedings pending. The State issues a no further remediation letter releasing the party who
performs the cleanup from future liability as the main incentive to participate in the program. Fees on
hazardous waste treatment/disposal fund State participation. In addition, the State charges fees for
Overhead, personnel, and lab costs.
The State brownfields program was established by policy in 1995. Any site that is eligible for
the voluntary program may be considered a brownfields site. Illinois offers tax credits and State
Brownfields Grants as incentives to participate in the program.
204
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INDIANA
SITES
NPL Sites
Final:
Proposed:
Deleted:
36
1
7
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
61
STATUTORY AUTHORITIES
The Hazardous Substances Response Trust Fund, 1C §13-25-4 (1986, as amended 1987,
1988,1989, and 1991), establishes a State cleanup fund and authorizes enforcement actions, and
recovery of NRDs.
The Responsible Property Transfer Law, 1C §13-25-3 (1990), establishes disclosure
requirements for contaminated property transfers.
The Voluntary Remediation of Hazardous Substances and Petroleum, 1C §13-25-5 (1993),
establishes a voluntary cleanup program.
The Brovmfields Revitalization Zone Tax Abatement, 1C §6-1.1-42 (1997), provides for tax
rebates under the brownfields program.
The Environmental Legal Actions Act, 1C §13-30-9 (1997), establishes citizen suit authority.
PROGRAM ORGANIZATION AND FUNDING
The Office of Environmental Response in the Indiana Department of Environmental
Management (IDEM), employs 58 FTE staff, but only 20 FTE work on non-NPL sites. Legal support
is provided by two FTE attorneys in the Office of Legal Counsel. Staffing and administration are
funded by the State general fund, the State cleanup fund, and Federal grants/cooperative agreements.
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 250 sites. In FY97, cleanup activities were
completed at 15 sites. Cleanup activities have been completed at 30 sites since the beginning of the
program.
Approximately 200 of the cleanups underway are at voluntary sites. During FY97, voluntary
cleanup activities at 10 sites were completed. Cleanup activities at 20 voluntary sites have been
completed since the beginning of the program.
The State's priorities list is composed of sites that have been evaluated using the Indiana
Scoring Model, which examines sources, pathways, and targets.
CLEANUP FUNDING
At the end of FY97, the Hazardous Substance Response Trust Fund had a balance of $24.5M.
The State reported fund obligations of $9.6M with $288.5K obligated for NPL sites and $9.3M
obligated for non-NPL sites. Funds paid out totaled $4.3M with $400K spent on NPL sites and
$3.9M spent on non-NPL sites. Indiana also reported fund additions of $6.8M for the fiscal year.
Funding information for the Environmental Management Special Fund is not available.
CLEANUP POLICIES AND CRITERIA
Indiana employs water quality criteria, background levels, and MCLs/MCLGs in conjunction
with risk assessments to determine cleanup levels. Groundwater and soil standards are under
development.
205
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f IH
! P'il 'Jliiil
lit!1 ;li
For voluntary cleanup sites, the State employs water quality criteria, MCLs/MCLGs,
groundwater standards, and soil standards in conjunction with risk assessment to determine cleanup
levels. "
Land use is considered in determining cleanup levels for State and voluntary cleanups. Future
land uses are considered either residential or nonresidential. A party must control the site to select
ifff evidential "use!Indiana uses environmental notices recorded on deeds as institutional controls for
maintaining specified land uses.
l lull nil ' •.'.••:•. . . -I" ,|ii|;,;, , i \ ,j I:.. • ., :!'!,: t t
PUBLIC PARTICIPATION ' ' ' ' '' " "M" "':l ['\
Jhe "State"requires public notice, public comment, and hearings and meetings for both State
and voluntary cleanups.
ENFORCEMENT111 ' ' \ \ ' . ; , ". ^ ,'] _ .
Liability
Indiana imposes strict and joint and several liability standards where appropriate, and
imposes retroactive liability. The State may impose civil penalties up to $25K per day per violation.
Triple punitive damages may be imposed.
Natural Resource Damages
The State does not have authority independent of Federal law to recover for NRDs. IDEM
and the Indiana Department of Natural Resources are the designated State trustees for natural
Resources. Indiana began seeking NRDs in 1993 under CERCLA. A 1993 Memorandum of
Agreement between the U.S. Fish and Wildlife Service, the Department of Natural Resources, and
the Department of Environmental Management requires collaborative efforts in recovering NRDs
from private parties. The State uses recovered funds for the restoration of natural resources,
replacement at other locations, and protection of other natural resources. Over $3M has been spent on
natural resource restoration, and six restoration projects are currently underway.
Property Transfer
Indiana requires the seller to disclose the presence of hazardous substances on the site before
transfer, if a site has underground storage tanks, is subject to CERCLA Title m reporting, or is on the
CERCLIS list The State's residential property transfer law contains requirements for disclosure of
environmental hazards prior to transfer of certain residential properties.
l!
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State voluntary cleanup program was established in 1993 (1C §13-25-5). Any party is
eligible to participate. Sites that pose an imminent threat or that are currently subject to enforcement
proceedings are not eligible. The IDEM issues a certificate of completion, and the Governor's Office
Issues a "covenanthot to sue as incentives for participation in the program. The program is funded
through application fees of $1K per site and through applicant agreements to pay additional State
costs. State costs for voluntary cleanups range from $5K-$20K.
Indiana has a brownfields program for any site that is potentially contaminated with
hazardous substances or petroleum. The State provides tax rebates for nonpolluters, brownfields
comfort letters, and State loans as incentives to reuse or redevelop sites. The program includes 17
sites, and cleanups are underway at four of these sites. Reuse or redevelopment commitments have
been made at two sites.
206
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-------
MICHIGAN
SITES
NPL Sites
Final:
Proposed:
Deleted:
81
3
13
State Sites
Known and Suspected: N/A
Identified as Needing Attention: 2789
On Inventory or Priority List: 2789
STATUTORY AUTHORITIES
The Michigan Natural Resources and Environmental Protection Act, Public Act 451 of 1994,
Part 201, establishes a State cleanup fund and provides for enforcement authorities, apriority list,
NRDs recovery, citizen suits, water replacement, contaminated property transfer requirements, and
voluntary cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Environmental Response Division of the Department of Environmental Quality (DEQ)
administers the hazardous substance cleanup program. The division employs 234 FTE staff, and legal
support is provided by eight FTE attorneys in the Department of the Attorney General, Natural
Resources Division. Funding for staff and administration is provided by the State general fund
(75%), the State cleanup fund (10%), and Federal grants (15%).
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 361 sites, and cleanup activities at 363 sites have
been completed since the beginning of the program. In FY97, cleanups were completed at 101 sites.
Of the total number of cleanup activities underway, 165 are at voluntary sites. Voluntary
cleanups were completed at 47 sites during FY97.
Michigan maintains a priority list based on known or suspected releases, contaminant
concentrations in excess of Michigan generic residential cleanup criteria, and observed releases.
CLEANUP FUNDING
The Environmental Protection Bond (EPB) had a fund balance of $7.6M at the end of FY97.
During the year, $12.7M were obligated or encumbered and $40.1M were spent. The State also
reported additions of $21.5M. Bonds are a significant source of the Fund, and interest is a minor
contributor. The State uses the EPB for site investigation, CERCLA match, studies and design,
operations and maintenance, removals, emergency response, grants to local government, remedial
actions, and program administration.
The General Fund (GF) had $10M in additions during FY97. State appropriations are a
significant funding source, and penalties are a minor source. The State uses the GF for site
investigation, CERCLA match, studies and design, operations and maintenance, removals,
emergency response, grants to local government, remedial actions, and program administration.
The Cleanup and Redevelopment Fund (CRF) had $14.6M in additions during FY97. State
appropriations are the major source of the Fund; bonds, cost recovery, interest, private funds, user
fees, and bottle return escheats are minor contributors. The State uses the CRF for site investigation,
CERCLA match, studies and design, operations and maintenance, removals, emergency response,
grants to local government, remedial actions, and program administration.
CLEANUP POLICIES AND CRITERIA
The State employs background levels, water quality criteria, MCLs/MCLGs, groundwater
standards, and soil standards as generic cleanup levels, or uses site-specific risk assessment to
207
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determine cleanup levels. The State uses a risk goal of 10"5 for carcinogens and a hazard quotient of 1
for noncarcinogens.
Future land use assumptions are made based on probability of continued current use, current
zoning, and future zoning or intended use as indicated by local governments. The State uses deed
restrictions and ordinances as institutional controls to maintain specified future land uses.
Illl'H l, • •'••"'.,". '!-Sis!; (ft 'J",!' [• (•'!, I", I . i i.11 ; I ' ' ;J • ', • ' <"! ! :" •• "-^ .. ,,',.,;. . • ,.., . • , , • • ,: , , • • ......
PUBLIC PARTICIPATION
Michigan requires public notice, public comment, hearings/meetings, and provides for citizen
groups where appropriate. The State also allows for informational meetings and press releases for a
specific site when necessary.
ENFORCEMENT
Liability
The State enforces joint and several liability standards. Proportional liability is imposed
^yi^er.Q.apprp^riate. In addition, provisions for orphan shares and liability limits are available. The
State imposes retroactive liability when it can be proved that a party has caused or contributed to a
release. Michigan may impose civil penalties up to $25K per day per violation for failure to comply
with an administrative or court order, $1K per day per violation for failure to comply with a director
request, and $10K per day per violation for violation of law or administrative rules. Treble damages
are available for failure to comply with an order to abate an imminent and substantial danger from a
release.
Natural Resource Damages
The_State may recover NRDs under Michigan law (Public Act 451 of 1994, Part 201). The
Attorney General and DEQ are joint trustees for the NRDs program. The statute of limitations for
recovering damages is six years from Department approval of remedial action. Michigan has
recovered $1,55M for two successful claims under State law and has recovered $4.6M for six
successful claims under CERCLA Currently, two NRD claims are pending under State law, and
three are pending under CERCLA. The State measures damages using permanent loss of use costs
and restoration costs. NRDs assessments are used to determine the value of claims. Recovered funds
are used for restoration of'naturalresources, replacement at other locations, and protection of other
natural resources. Currently, 19 projects are underway, and 20 projects have been completed for
$6M. Michigan conducts public participation in the NRDs program on an ad hoc basis.
Property Transfer
The State requires a seller to disclose the presence of hazardous substances in the deed before
a property may be transferred, and that the seller investigate the property to determine if hazardous
Substances exist on the site. In addition, the State maintains a database of known or listed sites. The
State's residential property transfer law contains requirements for disclosure of the presence of
environmental hazards prior to transfer of certain residential properties.
TheMichigan voluntary cleanup program was established in 1994 (Public Act 451 of 1994,
Part 201). All sites and potentially responsible parties are eligible for the program. The State provides
liability protection for historical releases once the remedial action plan is completed as an incentive
to participate in the program. The voluntary program is funded by the Environmental Protection
Bond and the General Fund. The cost of cleanups ranges from $10K-$20M depending upon the site.
The State brownfields program, the Site Redevelopment Program, was established in 1994
(Public Act 451 of 1994, Part 201). A brownfields site is any site where there is a redevelopment
208
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interest on the part of a developer. Currently, 144 sites have commitments for reuse and
redevelopment in Michigan. Approximately 164 sites have been identified and/or included in the
program, and cleanup is underway at approximately 55 sites. Incentives for participation in the
program include: grants for investigation and remedial action, protection against liability for
historical contamination, and State initiated investigation to facilitate decisions for future land use.
209
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SITES
i^Hiiiu,!!, !i«!i!i;:aiii'
NPL Sites
Fmal:iir
Proposed:
Deleted;
44
0
18
MINNESOTA
State Sites " ' "" " '" '
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
3000
219
138
I I I Illll I Illll
STATUTORY AUTHORITIES
TheMinnesota Environmental Response and Liability Act (MJBRLA), Minn. Stat. §§115B.Ol
.2'4 (1983, as amended 1984, 1985, 1986, 1987, 1990, 1991, ll^I^S.'lW?, and 1998),
establishes pia § tate fund and provides for enforcement authorities, a State priority list, NRDs, victim
compensation, contaminated property transfer, and voluntary cleanups. The Hazardous Substance
Injury Compensation Fund, §§115B.25-.37, is available for victim compensation.
M '. ....... ' ., , ' ...... " ....... ' '.'. ...... "'• ..... '.
The 'Site "Response Section in the Groundwater and Solid Waste Division of the Minnesota
Pollution Control Agency administers the State superfund program. This section has a total of 82
FTE staff who work on Superfund and the Voluntary Investigation and Cleanup Programs.
Minnesota's Attorney General's Office provides legal support for the program with two FTE
attorneys. The State program receives funding from the State Cleanup Fund (65.5%) and Federal
grants (34."5^S). Minnesota's Federal grants include a Defense Summary Memorandum of Agreement
for Federal facility cleanups.
CLEANUP ACTIVITIES
^Minnesota currently has cleanup activities underway at 628 sites. In FY97, cleanups were
:fx>rhp leted at '121 sites, and cleanups have been completed at 540 sites since the start of the program.
Vohmtary investigations constitute 500 of the total number of cleanup activities currently underway.
jyojiintaiy actions were completed at 100 sites in FY97, and at 500 sites since the start of the
! ..... program. [[[ .................................... "
Minnesota maintains a priority list based on a hazard ranking system.
-The" MERLA fund balance was $5.3M at the end of FY97. Approximately S70.6K were
_ ited orehcumbered during the fiscal year. Total monies paid out during the fiscal year
^n i •'! | i: if ' "fii ' ' '" a i ;i
CLEA
-Minnesotaemploys surface water quality standards, State drinking water standards, and
K^CL/Klc'tlSs ^'conjunction with risk assessments to determine cleanup levels. Minnesota uses a
?i^!J!SS tiere3 system to Q0"nduct site-specific, media-based exposure pathway assessments to select and
apply cleanup standards for sites. A10"5 risk level is used for carcinogens, and a hazard quotient of .2
is used for noncarciiiogens. The same standards apply to State voluntary cleanups.
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Illllli Illllli Illl II I 111 ,1,11 :
210
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-------
Whenever possible, local governments are consulted to determine future land use. Otherwise,
future land use will be kept consistent with surrounding land uses or will be cleaned up to residential
use standards. A formal guidance document (Guidance on Incorporation of Planned Property Use
into Site Decisions) identifies appropriate institutional controls (ICs) for specific sites with residual
contamination. Minnesota uses a variety of ICs including the following: affidavits/notification,
contractual agreements, easements, and restrictive covenants.
PUBLIC PARTICIPATION
Minnesota generally follows public participation requirements under CERCLA for all of its
State and voluntary cleanup sites. The State provides for public notice, public comment,
hearings/meetings. The State also supports community advisory groups (CAGs) at some sites.
ENFORCEMENT
Liability
The State uses strict, joint and several liability standards, as appropriate, and may impose
liability retroactively. The State may impose civil penalties up to $20K per day per violation. No
punitive damages may be imposed.
Natural Resource Damages
Minnesota may recover for NRDs under MERLA (Minn. Stat. Ch. 115B.04). The State has a
six year statute of limitations. The Department of Natural Resources and the Minnesota Pollution
Control Agency began seeking NRDs in 1994. Under State law, one successful claim recovered
$91K in NRDs. Under CERCLA, three successful claims recovered $220K. Currently, three State
claims are pending. The State uses site-specific assessment to determine the value of claims.
Measures of damages include cost of restoration/replacement and potentially nonuse values.
Minnesota uses recovered funds for the restoration of natural resources, replacement at other
locations, and protection of other natural resources.
Property Transfer
Under Minn. Stat. Ch. 155B.17, the State requires disclosure in the deed when a property is
contaminated with hazardous substances.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Established in 1988 by statute, the State's Voluntary Investigation and Cleanup Program
(Minn. Stat. Ch. 115B.17, Subd. 14; Ch. 115B.175 - .178), allows any party willing and able to
conduct the investigation and required cleanup in a timely manner and to reimburse MPCA for
oversight costs to participate in the program. State appropriations and Federal cooperative
agreements with EPA fund State participation, as well as reimbursement from private parties.
Minnesota provides review and oversight of cleanups at a fee of approximately $92 per hour.
Voluntary cleanup oversight costs per site, for the State, range from $2K- $10K. A variety of
different liability assurances, technical assistance, and financial assistance provided by other State
agencies, such as the Department of Trade and Economic Development, provide incentives for
participation in the program. Over 1000 sites have entered the voluntary cleanup program since its
inception.
The State Brownfields Program is carried out under the Voluntary Investigation and Cleanup
Program.
211
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OHIO
SfrES
.Sites
Final;
Proposed:
Deleted:
34
5
2
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
1460
403
1189
STATUTORY AUTHORITIES
The Ohio Revised Code (O.R.C.) §3734 {Solid and Hazardous Waste Disposal) authorizes a
cleanup fund and voluntary cleanup activities, and provides enforcement authorities. The O.R.C.
§3746 (Voluntary Action Program) provides for a cleanup fund, and authorizes property transfer
provisions and a voluntary cleanup program. In addition, O.R.C. §3745 {Environmental Protection
Ajgency) authorizes enforcement activities and citizen suits, while O.R.C. §6111 (Water Pollution
Control) authorizes enforcement activities.
PROGRAM ORGANS ATM
The Division of Emergency and Remedial Response (DERR) in the Ohio Environmental
Protection Agency (OEP A) administers the State cleanup program. The program employs 150 FTE
staff and receives its funding from State general funds and Federal grants. The Attorney General's
Office supplies 9.7 FTE staff attorneys to work on non-NPL site cleanups and two FTE attorneys to
work on voluntary cleanups.
CLEANUP ACTIVITIES
The State has approximately 365 cleanup activities underway, of which 200 are voluntary
cleanup activities. The State completed 3 remedial actions and 20 voluntary cleanup activities in
FY97. Since the start of the program, 13 remedial actions, 90 interim actions, and 40 voluntary
cleanup activities have been completed. Of the 403 sites identified by the State as needing attention,
260 are municipal landfills.
CLEANUP FUNDING
The Hazardous Waste Cleanup Fund had a balance of $17.3M at the end of FY97. The total
anKninf o|ligated or encumbered was $i.4M, all of which was obligated to non-NPL sites.
Approximately $12.9M were paid out and $12.8M were added to the Fund in pY97. Ohio uses the
Fund for site investigation, studies and design, removals, operations and maintenance, grants to local
governments, remedial actions, and program administration. Significant sources of the Fund are cost
recc>yefy
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CLEANUP POLICIES AND CRITERIA
Ohio follows CERCLA standards for its State cleanups. The State employs background
levels, water quality criteria, MCLs/MCLGs, groundwater standards, and soil standards in
conjunction with risk assessments to determine cleanup levels. Carcinogenic risk goals of 10"4 to 10"6
are used, with 10"6 as the point of departure.
The State also determines voluntary cleanup levels using background levels, water quality
criteria, MCLs/MCLGs, groundwater standards, soil standards, arid sediment standards in
conjunction with risk assessment. Ohio employed a two year rule-writing process with involvement
from a wide range of stakeholders to determine cleanup criteria and standards for voluntary sites. A
cumulative risk goal of 10"5 is used for voluntary cleanups.
Land use is considered in determining cleanup levels at both State and voluntary sites. Future
land use assumptions for State sites are made based on current and potential site use and nearby land
uses and zoning restrictions. In the voluntary program, the volunteer may choose the land use but
exposure assumptions must match the intended land use. Deed restrictions, and conditions of
operations and maintenance are among the institutional controls used to ensure that specified land
uses are maintained.
PUBLIC PARTICIPATION
Ohio law provides for public notice, public comment, and hearings/meetings. Grants to
citizen groups are also provided at certain sites. The voluntary program also provides for an
information clearing house.
ENFORCEMENT
Liability
Ohio imposes strict, and joint and several liability as appropriate. The State may impose civil
penalties but does not impose punitive damages. Ohio may impose retroactive liability.
The voluntary program uses proportional liability standards, as well as retroactive liability
standards.
Natural Resource Damages
The State does not have authority independent of Federal law to recover NRDs. Under
CERCLA, the State has recovered $3M for three successful claims. Currently, two CERCLA claims
are pending. Ohio uses recovered NRD monies for the restoration of natural resources, replacement
at other locations, and protection of natural resources. Currently, three natural resource restoration
projects are underway.
Property Transfer
The State does not have formal property transfer requirements other than disclosure of all
known deficient conditions upon a transfer of residential properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The Voluntary Action Program was established in 1994 (Ohio Revised Code 3746). Any
party is eligible for the program except for those already regulated under Federal or State law.
Incentives to participate in the program include tax credits, low interest loans, grants, and liability
releases. The State charges a range of fees to cover its program administration, including program
audits. The fees range from $1K to $5K depending upon the site, jn addition, the State may provide
technical assistance at an hourly rate to any party participating in the program.
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WISCONSIN
SITES
NPL Sites
Final:
Proposed:
Deleted:
42
1
3
State Sites
Known and Suspected: 5000
Identified as Needing Attention: 600
On Inventory or Priority List: 600
STATUTORY AUTHORITIES
The Remedial Action Chapter 292, Wis. Stat. § 292 (1997), consolidated all of Wisconsin's
hazardous waste cleanup laws. The statute creates a State cleanup fund, requires a priority list,
provides for contaminated property transfer, establishes a voluntary cleanup program, and authorizes
enforcement for State cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Bureau for Remediation and Redevelopment (BRR) is a new bureau within the
Department of Natural Resources. It administers hazardous substance cleanup and employs 68 FTE
staff. The Attorney General's Office within the Bureau of Legal Services provides legal support to
BRR with 3.5 FTE staff attorneys. Funding is provided by Federal grants/cooperative agreements
(45%), the State general fund (18%), and the State cleanup fund (3 7%).
CLEANUP ACTTvTTIES
ii
The State has completed cleanup activities at 1600 sites since the start of its program.
Cleanup activities are underway at 130 sites. Of sites identified by the State as needing attention,
approximately 10% are industrial landfills, 15% are municipal landfills, and 65% are manufacturing
sites.
Numbers of voluntary cleanup activities are not available due to substantial restructuring
within the voluntary program office, as a result of recent statutory amendments.
Wisconsin maintains a priority list based on a screening process that determines whether sites
have a high potential for causing or threatening to cause pollution.
CLEANUP FUNDING
The Environmental Fund (EF) had a balance of $881K at the end of FY97. The total amount
obligated or encumbered at the end of FY97 was $2.4M. During FY97, $2.6M were paid out of the
EF, all of which was allocated to non-NPL sites. The major source of the EF is waste fees.
Appropriations, penalties, cost recovery, and user fees are minor sources of the Fund. The EF may be
used for site investigation, CERCLA match, studies and design, operations and maintenance,
removals, emergency response, remedial actions, and program administration.
Wisconsin's Bonding Authority Fund had a $20.5M balance at the end of FY97.
Approximately $6M were obligated or encumbered with $1.2M allocated to NPL sites and $4.8M
allocated.to non:NPL sites.. A total of $15.5M was added to the Fund in FY97.| The Bonding
Authority Fund may be used for remedial actions and CERCLA match.
CLEANUP POLICIES AND CRITERIA
ii
Wisconsin employs groundwater standards, soil standards, background levels, water quality
criteria, and MCLs/MCLGs in conjunction with risk assessments to determine cleanup levels.
Wisconsin uses a two tier system to achieve groundwater standards. The State uses a 10"6 risk level
for carcinogens and a hazard quotient of 1 for noncarcinogens. Wisconsin uses the same standards to
determine voluntary cleanup levels.
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Land use is taken into account in setting cleanup levels. The State uses industrial and
nonindustrial soil standards and requires institutional controls, including deed restrictions and zoning,
to maintain appropriate land uses.
PUBLIC PARTICIPATION
The State requires public notice, public comments, and hearings/meetings for State and
voluntary program cleanups. The level of public participation varies from site-to-site within the State
depending upon the magnitude of the cleanup and other relevant factors.
ENFORCEMENT
Liability
Wisconsin applies joint and several liability standards. Retroactive liability is imposed in
certain circumstances. The State may impose civil penalties up to $5K per day per violation. The
State cannot impose punitive damages.
Natural Resource Damages
The State may recover NRDs caused by water pollution, under Section 283.87 of Wisconsin
law. No NRD actions under State or Federal law have been filed.
Property Transfer
Wisconsin requires sellers to disclose the presence of hazardous substances on a site before
transfer. The State's residential property transfer law contains requirements for disclosure of
environmental hazards prior to transfer of certain residential properties. The State maintains a
database of known or listed sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State established a voluntary cleanup program in 1994 under the Land Recycling Law.
October 1997 amendments substantially expanded the voluntary program, and the program is now in
the process of restructuring. Any contaminated site that is not on the NPL is eligible for the program.
As a result of the 1997 amendments, any party is also eligible to participate. State participation is
funded by a $250 application fee followed by an hourly fee for staff services. Major incentives to
participate in the program include financial incentives, such as tax credits, and liability limits.
215
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Region 6
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
tinlR.
I!!!1!1":
216
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ARKANSAS
SITES
NPL Sites
Final:
Proposed:
Deleted:
13
0
2
State Sites
Known and Suspected: 3 63
Identified as Needing Attention: 98
On Inventory or Priority List: 9
STATUTORY AUTHORITIES
The Arkansas Code Annotated Title 8 (Environmental Law) provides general enforcement
authorities and authorizes two cleanup funds, priority list, and citizen suits. Specifically, the
Remedial Action Trust Fund Act (RATFA), Ark. Code Ann. §§8-7-501 etseq., establishes the
Hazardous Substance Response Trust Fund Act and a State priority list of hazardous waste sites. The
Emergency Response Fund Act (ERF A), Ark. Code Ann. §§8-7-401 etseq., establishes the
Emergency Response Fund. Both RATFA and ERFA provide for apportionment of liability and
authorize civil and criminal penalties, treble damages, and cost recovery. In addition to RATFA and
ERFA, the State draws upon general authorities of Title 8 to administer its cleanup program.
The Arkansas Brownfields Law, Arkansas Code Annotated,§8-7-1101 etseq. (Act 125 of
1995, as amended by Act 1042 of 1997), provides authority for cleanup of brownfields sites and
contains contaminated property transfer provisions.
PROGRAM ORGANIZATION AND FUNDING
The Inactive Sites Branch of the Arkansas Department of Pollution Control and Ecology's
(ADPC&E's) Hazardous Waste Division is the lead program office for cleanup of abandoned and
inactive properties. The Inactive Sites Branch employs 10 FTEs, although 12 are currently
authorized. Legal support is provided by one FTE attorney in the APDC&E's Legal Division.
Funding for staff and administration comes from the State cleanup fund (25%) and Federal grants
/cooperative agreements (75%).
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 60 non-NPL sites. During FY97, cleanup
activities were completed at two non-NPL sites. It is unknown how many cleanups have been
completed since the start of the program. Under the State's voluntary program, 17 cleanups are
currently underway and two were completed during the last fiscal year.
Under ADPC&E Regulation 23 §26, a site may be listed on the State's priority list (SPL) if
hazardous substances on the property pose a potential substantial eridangerment to human health
and/or the environment Endangerment is determined using site-specific risk assessment. To be listed
on the SPL, a site must pass administrative procedures as well as a public notice and comment
process. Of the sites identified as needing attention, 44 are manufacturing sites, nine are recycling
sites, two are municipal landfills, two are industrial landfills, two is a mining site, and 40 are
classified as "other" site types.
CLEANUP FUNDING :
The Emergency Response Fund (ERF) had a balance of $ 119.5K at the end of FY97. The
fund's balance is capped at $150K. During the fiscal year, $14.IK were added to the fund, and
$59.5K were paid out. No funds were obligated or encumbered. The ERF is authorized strictly for
emergency response and associated removal actions. No more than ;$60K may be withdrawn at a
time, and the Arkansas Pollution Control and Ecology Commission must authorize any expenditure
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from the ERF. The most significant source of funding in FY97 was penalties. Cost recovery was a
minor source.
The Remedial Action Trust Fund (RATF) had a balance of $8.7M at the end of FY97. During
the fiscal year, $623.6K were added to the fund, and $141.7K were paid out. No funds were
obligated or encumbered. Authorized fund uses include site investigation, CERCLA match, studies
and design, operations and maintenance, removals, remedial actions, and program administration.
Additionally, 10% of fund revenues (up to cap of $250K per year) are deposited in the State's
Environmental Education Fund. The Arkansas Pollution Control and Ecology Commission must
authorize any expenditure from the RATF. Significant sources of funding include waste fees,
Interest and perialties that flow over from the ERF once it reaches its $150K cap. Cost recovery was
a minor source.
CLEANUP POUCIES AND CRTrERIA j
The State's cleanup standards are based on a risk management process. Site specific factors
are considered when developing action levels. Cleanup goals may be met by reaching background
me|als concentrations, consulting Region 6 Human Health Media Specific Screening Levels,
performing traditional human health risk assessment, or a combination of all three options when
Ippropriate. Site-specific cleanup standards are established in enforceable Consent Administrative
Qrder| ^CAOs). Ecological risk assessment decisions are based on sediment screening levels
ieveloped by me NaSonal Oceanograpnic and Atmospheric Administration. Factors in determining
appropriate action levels include reasonably anticipated future land use, the use of engineering or
institutional controls, human and/or ecological receptors, water quality criteria, and MCLs/MCLGs.
Numerical risk goals range fromlO"4 to 10"6. Depending on the remaining risk, land use restrictions
pay be"specified in a site's CAO and recorded in the property deed. Under the Brownftelds Law, a
CAO must be filed with the clerk of the circuit court in the county in which the site is located. The
OHer is traniferible to all subsequent owners, and the land use designated therein cannot be cb.an.ge3
without notifying the ADPC&E so the associated risk management decision can be revisited.
PUBLIC _ PARTICIPATION
Public notice requirements, provisions for public comment, hearings/meetings, and document
availability are ajl provided by both statute and regulation. As a matter of policy, there is also
loqfdinatiori of regulatory revisions with industry trade groups and environmental groups. A public
hearing is held prior to decisions to add or delete sites from the State priority list. Transcripts of
public hearings and comments received on sites become part of administrative records. Public
meetings and/or fact sheets are provided prior to major milestones on cleanup projects. Identical
public participation requirements apply under the State's voluntary cleanup and brownfields
programs.
i
ENFORCEMENT |
Liability
TJie State applies strict, J9int and several, and retroactive liability, except in cases where
proportional liability is proven by a preponderance of the evidence. Participating responsible parties
(RPs) may sue nonparticipants to recover their share of the cleanup costs. The State may impose civil
penalties up to $~2~5$C per day and criminal penalties for violating the Code, making false statements,
or violating an Order. Treble punitive damages are also available.
" ' Natural Resource Damages '' ' ' '""
Arkansas has authority independent of Federal law to recover for NRDs under Ark. Code
Ann. §8-4-103(b)(3) and (c), 8-6-203 (b)(3) and (c), and 8-7-204 (b)(3) & (c). the State's designated
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trustee is ADPC&E. Since the State commenced seeking NRDs in 1995, one claim worth $1.65M
has been awarded under State law. Currently, one claim with an approximate value of $80K is
pending under State law. ADPC&E has not yet settled on a definitive measure of damages or method
for determining the value of claims, so decisions thus far have been made on a case-by-case basis.
The Department expects to begin relying more heavily on the cost of restoration in the future.
Recovered funds are used for restoration, replacement and protection of natural resources. One such
project has been completed, and three are currently underway.
Property Transfer
The Brownfields Law requires that a property deed disclose the presence of on-site hazardous
substances. The State used to have provisions for liens and superliens, but the Arkansas legislature
has partially excised the superlien; fragmented authority for liens still exists on the books, but neither
liens nor superliens are used or effective at this time. ADPC&E maintains a database of known and
listed sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Arkansas has an informal voluntary cleanup program, whereby RPs can come forth to initiate
CERCLA-like cleanups. Authority for the program is derived from general provisions of ADPC&E
Regulation 23 and the Remedial Action Trust Fund. The program is open to RPs except those under
enforcement action by the Department. There are no categorical exclusions as to site-type eligibility.
Incentives for voluntary cleanups include a limitation of liability for program participants. The State
charges a fee of approximately $63 per hour for document review.
The State also has a brownfields program established by the Arkansas Brownfields Law. In
general, properties with viable RPs are not qualified to participate in the brownfields program unless
the Director of ADPC&E determines it is in the best interest of the State to proceed with a
brownfields cleanup while pursuing cost recovery or some other method of settlement with the RP(s)
on a separate track. Abandoned industrial, commercial, and agricultural sites not under enforcement
action are eligible to enter the program. Incentives for participation include a low interest revolving
loan program and total release from State liability if the corrective: action order is properly executed.
Participants pay a fee of $63 per hour for APDC&E review of submittals and other forms of technical
assistance. State participation is funded through these fees and EPA cooperative agreement money.
ADPC&E has begun to develop a database of potential brownfields properties using sites that have
been archived from the EPA CERCLIS database. To date, 263 potential brownfields sites have been
identified. Two Consent Administrative Orders have been executed and property redevelopment is
underway. A draft guidance document is expected to be available for external review and comment
by the fall of 1998.
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LOUISIANA
SITES
NPL Sites
Final: 15
Proposed: 3
Deleted: 3
State Sites
Known and Suspected: 410
Identified as Needing Attention: 120
On Inventory: 410
Kill* i '.'Hi '.Id.1
STATUTORY AUTHORITIES
Chapter 12 of The Inactive and Abandoned Hazardous Waste Site Law (La. Rev. Stat.
30:2271-2280), entitled Liability for Hazardous Substance Remedial Action, provides enforcement
authorities and minimum remediation, standards. The Hazardous Waste Control Law, La. Rev. Stat.
30:2205, establishes the Hazardous Waste Site Cleanup Fund. La. Rev! Stat 30:2039 requires
landowners to disclose the presence of hazardous wastes in property conveyances. The Voluntary
investigation and Remedial Action Act (Lsi. Rev. Stat. 30:2285-2290), effective July 1, 1996,
authorizes the voluntary cleanup program now in development. While not unique to the State
superfund program. La. Rev. Stat. 30:2026 authorizes citizen suits.
PROGRAM ORGANIZATION AND FUNDING
The Inactive and Abandoned Sites Division of the Department of Environmental Quality's
(DEQ's) Office of Waste Services employs 34FTE staff who work on inactive hazardous waste
sites. Legal support is provided by one FTE attorney from the Office of Legal Affairs and
Enforcement, Staff and administrative costs are funded through Federal grants/cooperative
agreements (52%) and the State cleanup fund (48%).
CLEANUP ACTTVnTGES
Cleanup activities are currently underway at five non-NPL sites. During FY97, cleanups were
completed at eight non-NPL sites. Since the start of Louisiana's program, cleanup activities have
been completed at 152 non-NPL sites. None of these cleanup activities have been handled through
the voluntary cleanup program, as the regulations for that program are still being developed.
Louisiana does not have a formal priority list, but potential sites are placed on the State's
Jinniniii 'r ^^''iffi1!1'!;1 Miiiiiiir JIIIIIM >i:^, ^.-, „/ .. „• ,i , .,-r m , £ H.,"-.....>. ^ „.,.,.
inventory list (the Louisiana Site Remediation Information System [LASRIS]) by completing a Site
Discovery Form. Typically, sites are discovered by DEQ personnel, identified by citizen complaints,
or referred to the Inactive and Abandoned Sites Division by other ggQ divisions or outside
agencies. DEQ uses LASRIS to determine which sites actually need attention. Of the 120 sites
identified as needing attention, 19 are manufacturing sites, 19 are landfills, 16 are
refinery/reclamation facilities, 31 are wood treating facilities, 10 are gas transmission sites, one is a
site owned or operated by the Federal or State government, and 24 are classified as "other" site types.
CLEANUP FUNDING
The Hazardous Waste Site Clean-up Fund (HWSCF) had a balance of $1.7M at the end of
FY97. No additions were made to the fund during the fiscal year, but $200.8K were paid out to non-
NPL sites. A total of $2.3M was encumbered: $381K for non-NPL sites and $1.9M for NPL sites.
The HWSCF had a cap of $4M for FY97. Penalties and a portion of the taxes on hazardous waste
generation are significant sources of funding for the HWSCF. Interest and monies recovered through
judgements and settlements are minor sources. The HWSCF may be used for site investigation,
emergency response, removals, remedial actions, studies and design, program administration,
CERCLA match, and operations and maintenance.
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CLEANUP POLICIES AND CRITERIA
In order to avoid any significant threat to public health or the environment, DEQ is required
to select remedies, based on cost effectiveness, that reduce exposure or potential exposure to
hazardous substances. There is also a preference for permanent remedies. Choice of cleanup
standards depends on site-specific remedial goals, site conditions, and affected media. DEQ currently
bases cleanup criteria on background levels, water quality criteria, MCLs/MCLGs, and EPA
guidelines. Risk-based soil and groundwater standards are also being developed under the proposed
Risk Evaluation/Corrective Action Program (RECAP); these standards will be specific to land use
and will require further corrective action if site conditions change such that remedial goals no longer
satisfy acceptable risk levels. In determining land use, Louisiana considers current use and
projections on the likelihood of that use changing. Numerical risk goals are 10~4 to 10~6 for
carcinogens and a Hazard Index of 1 for non-carcinogens. The same cleanup standards will apply to
sites handled through the voluntary cleanup program now in development
PUBLIC PARTICIPATION
Under Louisiana law, the State must provide public notice, an opportunity for a public
meeting and, if requested, a public comment period prior to approval of a remedial investigation plan
and selection of a remedy. A public comment period is also required for closure plans when DEQ
proposes to treat, store, or dispose of hazardous wastes at an abandoned site. At complex sites, DEQ
institutes community relations programs that include regular public meetings and fact sheets. Prior to
concluding settlement agreements, DEQ makes them available to the public and may hold public
meetings. Public meetings are now also required under the voluntary cleanup program, pursuant to
the Voluntary Investigation and Remedial Action Act effective July 1, 1996 (La. Rev. Stat 30:2285).
ENFORCEMENT
Liability
Louisiana has strict, retroactive, joint and several liability standards, but the State allows
responsible parties to assign proportional liability amongst themselves where practicable. Civil
penalties of up to $25K per day may be recovered for PRP failure to provide requested information.
Non-participating PRPs are subject to double damages for participating PRPs' cleanup expenditures
and treble damages for the State's. Louisiana will negotiate a settlement with PRPs or issue a
remedial demand order wherever possible. DEQ has the authority to seek recovery of State costs
from PRPs once the work is done.
Natural Resource Damages
Louisiana uses general provisions in the Environmental Quality Act to pursue natural
resource damage claims. Since the State began seeking NRDs in 1990, one claim has been recovered
under CERCLA; several others have been recovered under the Federal Oil Pollution Act. Louisiana
pursues all claims in a cooperative process with the Federal government. As a result, the State uses
Federal guidelines to determine the value of claims. Funds recovered are used for restoration,
replacement, and protection of natural resources. One restoration project associated with the
CERCLA claim is currently underway. It is not possible to determine the amount of money being
spent on that action, because DEQ compels responsible parties to take charge of restoring use value
and does not inquire as to how much individual projects cost. Louisiana does not mandate public
participation in the NRDs assessment or restoration process, but the State typically follows the
requirements specified in CERCLA. The Department of Environmental Quality, the Department of
Natural Resources, and the Department of Wildlife and Fisheries are designated as natural resource
trustees.
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Property Transfer
Louisiana may impose a superlien for the recovery of remedial costs incurred by the State
and has a statutory requirement that the landowner of an identified hazardous waste site record the
location of the site in the mortgage and conveyance records of the parish in which it is located. The
State also has a law that requires property sellers to disclose latent defects to the property before
transfer; while this provision is not specific to environmental law, it could be used to require
disclosure
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NEW MEXICO
SITES
NPL Sites
Final:
Proposed:
Deleted:
11
2
2
State Sites
Known and Suspected: 344
Identified as Needing Attention: 133
On Inventory or Priority List: 60
STATUTORY AUTHORITIES
New Mexico does not have a formal State superfund program, so the State attempts to
address non-NPL sites through various regulatory mechanisms including State law and
Administrative Orders on Consent (AOCs). When used, AOCs are negotiated with PRPs and call for
CERCLA-like investigation and cleanup of all affected media, including those for which the State
does not have standards (i.e., direct contact with soils).
TheHazardous Waste Act, N.M. Stat. Ann. 74-4-1 to 74-4-13 (1988, as amended 1989 and
1991), establishes the Hazardous Waste Emergency Fund for emergency response and removals, the
State CERCLA match, and certain enforcement authorities.
The Water Quality Act, N.M. Stat Ann. 74-6-1 et seq. (1993), provides additional
enforcement authorities and provisions for citizen suits by appeal. These suit provisions only extend
to those who have already been involved in the decision through the public participation process.
The Environmental Improvement Act, N.M. Stat. Ann. 74-1-1 et seq., authorizes
Administrative Orders on Consent and provides associated enforcement authorities.
The Voluntary Remediation Act, N.M. Stat Ann. 74-4G-1 et seq. (1997), authorizes the
Voluntary Remediation Program currently being developed by the New Mexico Environment
Department (NMED).
PROGRAM ORGANIZATION AND FUNDING
Staff resources are provided by a total of 23.5 FTEs working out of two different offices, the
Superfund Oversight Section (SOS) and the Assessment and Abatement Section (AAS), both housed
within the Waste and Water Management Division of the New Mexico Environment Department's
Groundwater Quality Bureau. Together, the two sections are authorized to employ 27.5 FTEs. The
SOS concentrates on CERCLA investigation and oversight, but also has authority to enforce State
regulations; typically, the most heavily contaminated sites are handled through the SOS. The SOS
employs 5.5 FTEs to work on non-NPL sites and 11 FTEs to work'on NPL sites. The non-NPL sites
being handled by the SOS are investigated and remediated primarily under AOCs. The future
Voluntary Remediation Program will also be handled by the SOS. The AAS operates strictly under
State authority and standards, and employs seven FTEs to work on non-NPL sites. Legal support is
provided by 0.5 FTE attorneys from NMED's Office of General Counsel. Staff and administrative
costs are funded by the State general fund (30%), Federal grants/cooperative agreements (55%), and
by responsible private parties (15%).
CLEANUP ACTIVITIES
Cleanup activities are underway at 48 non-NPL sites. During FY97, cleanup activities were
completed at three non-NPL sites. Since New Mexico began remediating hazardous waste at
abandoned sites, cleanup activities have been completed at 36 non-NPL sites. None of these cleanup
activities have been handled through the Voluntary Remediation Program, as the implementing rules
and guidelines are still being developed.
The Assessment and Abatement Section maintains an informal priority list that includes sites
where contamination is known or suspected to exceed standards. The list is prioritized through a
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tin ' '! ' , ' ;:l'f ,;tlie~||azardous Waste ^Emergency Fund (Emergency Fund) had a balance of $ 1. 7M at the end
of FY97 During the fiscal year, $93^ IK were added to the fund. $O"K were paid out and $62.9K
:^ere |ncumbered,ial^for usewat npn-NPL sites:i The Emergency Fund may be used for site
InvWigatio^ and CERCLA match. All fund
iiSilt /J!' ' "41!!1!!: iii,' infill!,!,, '"K V,". ' ' '
revenues come from penalties.
The Assessment and Abatement State General Fund (AASGF) had a balance of $1.55K at the
end of^j^9Y Curing the fiscal year, $230.8K were added to the fund, $228.57K were paid out to
Sph-NPE sites, "ind"$675 were encumbered for use at non-NPL sites. The AASGF may be used for
Site mvwtigationl1 studies arid design, and program administration costs, which include oversight of
r'removaJ[s,r^ie3iai actions,' and emergency response. The AASGF's only significant source of
funding is appropriatipns; penalties and private funds are minor sources.
New '"Mexico's cooperative agreement with the Department of Defense (DOD) had a balance
of $229.3K at the end of FY97. During the fiscal year, $365.5K were added to the fund, $158.3K
were paid out to non-NPL sites, and $1.7K were encumbered for use at non-NPL sites. The fund may
be used for site investigation, studies and design and program administration costs. This cooperative
agreement is funded entirely through Federal appropriations
New Mexico's cooperative agreement with the U.S. Bureau of Land Management had a
balance of $40.6K at the end of FY97. During the fiscal year, $40K were added to the fund, and
$28,8K were paid out to non-NPL sites. This fund may be used for site investigation, studies and
design, and program administration costs. This cooperative agreement is funded entirely through
Federal appropriations.
CLEANUP POLIdDES AND CRTTERIA
New Mexico's cleanup levels are based on background levels, risk-based groundwater
standards, MCLs/MCLGs, water quality criteria, and soil standards. Soil cleanup standards are
applied strictly for the purpose of protecting groundwater quality and are determined on a case-by-
case basis. Because the State has no formal authority to impose risk-based soil standards, they may
only be implemented through Administrative Orders on Consent (AOC) and follow EPA risk
guidance. Soils cleaned under AOCs may be cleaned specifically for residential or industrial use
based on zoning and the current use of adjacent properties. Cleanup standards for groundwater and
surface water are set by regulation and are applied uniformly to all sites without regard for land use
considerations. All groundwater with less than 10,000 ppm total dissolved solids is protected for
future residential use regardless of present use. MCLs/MCLGS are applied on an ad hoc basis. New
Mexico uses risk goals of 10"5 for groundwater and surface water, and a range of 10"4 to 10"6 for
CERCLA-like cleanups conducted under AOCs. The same cleanup standards will be applied to sites
handled through the Voluntary Remediation Program (VRP), although NMED plans to develop soil
cleanup guidelines for VRP sites.
PUBLIC PARTICIPATION
At non-NPL sites, New Mexico follows the regulations of the Water (Duality Control
Commission, which mandate public notice requirements, public comment provisions, and
hearings/meetings. At sites being cleaned up under AOCs, responsible parties often make technical
assistance grants available to local communities.
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ENFORCEMENT
Liability
Liability in New Mexico is strict, joint and several. Enforcement authorities include orders
for site access and information, administrative and consent order authority, injunctive actions, civil
penalties and cost recovery authority. Preferred enforcement methods include injunctions or sending
a notice of violation with a time period for compliance and a proposed penalty. Civil penalties may
be imposed at arate of $10K per day for water quality violations, up to $15K per day for discharge
permit violations, and up to $25K per day for compliance order violations. Punitive damages are not
available.
Natural Resource Damages
New Mexico State law does not create liability for NRDs, but the State has been pursuing
NRD claims under CERCLA since 1993. Since that date, the State has settled two claims: one for
$200K, and the other for specified restoration work for which a monetary value will not be
determined. A third NRDs settlement worth $21 OK is now pending. The State uses several methods
depending on site-specific circumstances to determine the value of claims. Recovered funds are used
for restoration, replacement, and acquisition of equivalent natural resources. Five such projects are
currently underway, and two have been completed; a total of $165K has been spent on these
activities. Although there is no State requirement for public participation in the assessment or
restoration processes, it is sought in all cases pursuant to CERCLA. The Office of the Natural
Resource Trustee is designated by the Governor as the State's natural resource trustee pursuant to
CERCLA.
Property Transfer
New Mexico has no law governing the transfer of hazardous waste sites. The State may
request deed restrictions, but they are not legally enforceable.
VOLUNTARY AND BROWNFIELDS PROGRAMS
New Mexico is currently drafting regulations and guidelines for a voluntary remediation
program authorized by the Voluntary Remediation Act of 1997. The program is not yet operational
and has not begun accepting sites. In the future, the State will use the voluntary program to
encourage efficient and expedient cleanup of hazardous waste sites to applicable standards.
Although NMED has yet to clarify many details, the statute specifies certain key elements of
the program such as eligibility and incentives. The program will beiopen to site owners, operators,
prospective owners, and prospective operators. Individuals with a history of violating environmental
laws, or those under existing or pending Federal or State enforcement action or permit, will be
excluded. Heavily contaminated sites may also be excluded. Incentives for participation will include
liability protection during and after implementation of the voluntary remediation agreement,
certificate of completion for owners/operators, covenant not to sue for third party purchasers, and
lender liability. The State's participation will be funded through an application fee and an hourly
oversight rate yet to be determined.
The voluntary cleanup program will also be used to address, brownfields sites. Although there
are no provisions specific to brownfields, elements such as the covenant not to sue are intended to
encourage third party purchase of these properties. NMED plans to educate anyone who might be
interested in reusing a contaminated property about the program.
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OKLAHOMA
SITES
NPL Sites
Final: 10
Proposed: 1
Deleted: 0
State Sites
Known and Suspected: 793
Identified as Needing Attention: 124
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
The Environmental Quality Act, 27A O.S. Supp.1997 §l-3-l-l(B) & (E6), generally
establishes which agencies shall have authority over cleanups of State sites. The Environmental
Quality Code, O.S. Supp.1997, includes: §2-1-101 etseq., the Solid Waste Management Act
(enforcement authority); §2-7-101 etseq., the Hazardous Waste Management Act (enforcement
authorities); §§2-3-501 et seq. General Regulation and Enforcement (enforcement authorities); §2-6-
^05 etseq., Nuisance Act; §2-7-301 etseq. the Hazardous Waste Fund Act (cleanup fund); and §2-
15-101 etseq. the Brownfields Voluntary Redevelopment Act. 50 O.S. Supp. 1997 §2, which defines
public nuisance and liability of property owners, allows the State to hold successive owners
accountable for prior releases.
PROGRAM ORGANIZATION AND FUNDING "
The Department of Environmental Quality's (DEQ's) Waste Management Division, Site
Remediation Section administers the State's hazardous substance cleanups. The office employs 18
FTEs, although 22 are authorized. Legal support is provided by one FTE attorney from DEQ's Office
of the Executive Director, Office of General Counsel. Funding for staff and administration comes
from Federal grants/cooperative agreements (90%) and solid waste fees (10%).
CLEANUP ACTIVITIES
Cleanup activities are currently underway at approximately 52 non-NPL sites. During FY97,
cleanups were completed at 19 non-NPL sites. Since Oklahoma began remediating hazardous waste
at abandoned sites, cleanups have been completed at over 40 non-NPL sites. All of these cleanups
were handled through the State's voluntary cleanup program or through consent orders between the
Sjate and the individual party.
The State does not have a priority list. Preliminary Assessment/Site Inspection (PA/SI)
determines a site's candidacy for the NPL and/or the need for further attention. Sites are identified
through voluntary cleanups, the brownfields program, and the CERCLIS list.
CLEANUP FUNDING
The Environmental Trust Fund (215) had a balance of $0 at the end of FY97. During the
fiscal year, $284.4K were expended from the Fund and $282.5K was obligated. Of the amount paid
out, $136.5K went toward NPL sites, and $147.9K went toward non-NPL sites. All of the obligated
funds went toward NPL sites. No additions to the fund were made._The^ETF_is funded entirely
through taxes. Its only authorized use is CERCLA matches pertaining to oil contamination.
|'i I;" • •: ;The HEazirdous WasteTund (220) had a balance of $17.2K at the end of FY97. Of the total
amount paid out"of $593.4, $47.2K went to NPL sites and $546 2K went to non-NPL sites. During
the fiscal year, atotal of $309.3K was obligated: $139K for NPL sites, and $170.3K for non-NPL
sites. A total of $9.5K was added to the fund. Transfers of waste fees were the most significant
source of funding. Penalties were a minor source. Authorized uses of the fund include site
investigation, CERCLA match, removals, emergency response, grants to local government, and
program administration.
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CLEANUP POLICIES AND CRITERIA
Cleanup standards are determined by toxicologists who develop site-specific cleanup goals
based on current and prospective land use, surrounding population, soil and groundwater
considerations. DEQ uses statutory authority and guidelines to establish cleanup standards. State
statutes and regulations prescribe background levels, water quality criteria, MCLs/MCLGs, and
groundwater standards. Policy or ad hoc decisions call for risk assessment of both carcinogens and
noncarcinogens, soil standards, and land use based considerations. Maps, zoning, construction
patterns, local authorities, stakeholders, facility owners, and prospective buyers aid in determining
land use. Specified land use is generally protected through a consent order signed by DEQ and the
property owner. The consent order applies to successors and is enforceable. Deed notification is also
used.
The ideal risk goal is zero although this is not practical or achievable in all cases. Thus, DEQ
uses three levels of risk evaluation: (1) EPA Soil Screening Level guidance, (2) EPA MCLs for
drinking water for the evaluation of ground water, and (3) Oklahoma Water Resources Board Water
Quality Standards for surface water. No greater than 10"5 risk for carcinogens or a Hazard Index of
less than 1 as the sum of all noncarcinogenic risks over any pathway is acceptable.
PUBLIC PARTICIPATION
Oklahoma does not have formal requirements for public participation in cleanup decisions,
unless cleanups are conducted under the voluntary cleanup program. Under 27A Okla. Stat. Supp.
§2-15, the Oklahoma Uniform Environmental Permitting Act, the State must provide public notice,
opportunities for public comment, and hearings/meetings for cleanup decisions under the voluntary
program. DEQ often facilitates additional public participation mechanisms, such as citizen oversight
committees, on an ad hoc basis.
ENFORCEMENT
Liability
The State applies joint and several, and retroactive liability. In cases where public health is in
jeopardy, Oklahoma has authority to require cleanup through nuisance laws. Otherwise, the State
does not have specific authority to enforce hazardous waste cleanups, so all non-NPL cleanups have
been conducted under the Brownfields Voluntary Remediation Act. Civil penalties may be assessed
up to $25K per day per hazardous waste violation and $10K per violation for any other violation.
Natural Resource Damages
The State has independent authority to recover for NRDs to fish and wildlife under the
Oklahoma Constitution Act 26 §4 and 29 Oklahoma Statutes §7-401 a. Since the State commenced
seeking NRDs in 1992, a total of two claims have been awarded, both under CERCLA. Together, the
two claims are valued at approximately $405K. Currently, one claim valued at approximately $71K
is pending under CERCLA. The State determines the measure of damages by assessing the cost of
restoration and replacement offish and wildlife. The values of fish: are determined as published by
the American Fishery Society, Southern Division. The State does riot require public participation in
the assessment or restoration process, but has held meetings with tribal representatives. The Secretary
of the Environment and the Oklahoma Department of Wildlife Conservation are designated as natural
resource trustees.
Property Transfer
The State requires disclosure on the deed if a site is contaminated with solid or hazardous
waste. Also, under Oklahoma Revised Code, Chapter 16 A, sellers of residential property are required
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to disclose knowledge of environmental conditions including the presence of hazardous materials.
Deed restrictions are available for brownfields sites.
liliriill!''" IS iii iJMi; 11 iii ill • ^ I ^ w'i%4w :•? •• >i - w; i?; 11 s•* iiufi1 iii-;':: i,,; iv. ;• ;>-:
YOLUNTARY AND BROWNFffiLDS PROGRAMS
§ Oklahoma has a voluntary cleanup program established by statute and enacted in June of
Mli'.UMrtyi.'WtHWfllM Isllil!!!11*!;1"*'!!'! HI BHW.ft i- u 3'n>S &™ .Si , • ., i .,.. u t .. j (
?6. Under the program, sites are addressed through negotiation, consent orders, and technical work
ns! Pnor'toth'e" enactment oFtKe statute "'(since 1988), consent orders were used to facilitate
IHluntary cleanups. To date, all cleanups conducted in the State have been voluntary. The formal
program is open to anypersonexcept individuals under EPA cleanup order, those not in substantial
compliance with a State or"federalor der relating to regulated substances, or those having a
demonstrated pattern of imcprrected noncompliance. NPL sites or those currently under EPA cleanup
order are excluded gom me'program. Incentives for participation include a certificate of completion,
certificate of no action (which includes liability protections for cleaned up portions of the site), tax
incentives, job act incentives and advice/document review. The State's actual costs are reimbursed by
the participant Actual costs include all direct costs of DEQ oversight and arrangement for the
investigation including, but not limited to, time and travel costs of DEQ personnel, contractor costs,
personal protective equipment, document review, and the costs of collecting and analyzing split
samples.
The State has a; b|own|ield.s program established by both statute and code. Eligibility criteria
are the same as for me voluntary cleanup program. Thlree cleanup methods are available to
participants: (l) EPA'soiiTiscreehihg guidance levels and MCLs, (2) application of site specific data to
risk-based model, and (3) risk assessment. To date, seven sites have been identified for the program,
and one has verbally committed to redevelopment. A deed notice will be in place for that site
indicating that it is only suitable for commercial use. Incentives for participation in the brownfields
program are the same as those under the voluntary cleanup program.
228
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TEXAS
SITES
NPL Sites
Final:
Proposed:
Deleted:
34
2
6
State Sites
Known and Suspected: 388
Identified as Needing Attention: 52
On Inventory or Priority List: 49
STATUTORY AUTHORITIES
The Texas Water Code, Chapter 26, establishes the Spill Response Fund and provides
enforcement authorities. The Health and Safety Code, Chapter 361, establishes the Hazardous Waste
Remediation Fee Account (Fund 550) and a priority list, and provides authority for enforcement,
water replacement, and natural resource damage claims. A 1995 amendment established the State's
voluntary cleanup program.
PROGRAM ORGANIZATION AND FUNDING
The Office of Waste Management, Pollution Cleanup Division of the Texas Natural Resource
Conservation Commission (TNRCC) employs 106 FTEs, although 107 are currently authorized. Of
the 106 FTEs employed, 88.5 work on non-NPL sites. Legal support is provided by seven FTE
attorneys in the Office of Legal Services, TNRCC Legal Services Division. Funding for program
administration comes from the State cleanup fund (64%) and Federal grants (36%).
CLEANUP ACTIVITIES
Cleanup activities are currently underway at 502 non-NPL sites, 445 of which are being
remediated through the voluntary program. During FY97, cleanup iactivities were completed at 997
non-NPL sites, 55 of which were handled through the voluntary program. Since the start of the
program, cleanups have been completed at 18,994 non-NPL sites, 158 of which were handled
through the voluntary program.
To be included on the State's priority list, a site must satisfy three criteria: (1) alternative
mechanisms for State enforcement have been exhausted or ineffective in achieving remedy; (2) the
site does not qualify for the NPL; and (3) the site scored 5 or above using the Federal Revised Hazard
Ranking Score. Of the sites identified as needing attention, approximately 20 are manufacturing sites,
17 are recycling sites, 13 are aerial pesticide application sites, one is a municipal landfill, and one is
an industrial landfill.
CLEANUP FUNDING
The Hazardous and Solid Waste Remediation Fee Account (Fund 550) had a balance of
$69.7M at the end of FY97. During the fiscal year, $35.4M were added to the fund, $41.2M were
paid out, and $27M were obligated or encumbered. The fund is available for site investigation,
studies and design, removals, emergency response, remedial actions, CERCLA match, operations
and maintenance, and program administration. Its major sources of funding include waste fees, lead
acid battery fees, and Federal funds. Minor sources of funding include cost recoveries, user fees from
the voluntary program, and interest.
The Spill Response Fund (SRF) had a balance of S191.3K at the end of FY97. There were no
additions to, or expenditures from, the fund. Funds obligated or encumbered at the end of the fiscal
year totaled $6.7K. The SRF is available for removals and emergency response. Funding is supplied
through appropriations.
229
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11 iii! I
CLEANUP POLICIES AND CRITERIA
TNRCC uses media specific standards to establish cleanup levels. Risk assessment,
background levels, water quality criteria, MCLs/MCLGs, ground water standards, land use based
cpnside|atip=ns, and soil standards are used to determine cleanup criteria. TNRJCC expects to
promulgate a new risk-based rule in trie latter part of 1998, which will replace its current method for
determining; grotective concentration levels.
In June' of 1993, Texas promulgated its Risk Reduction Rules (subchapters A and S of
Chapter 335}, which establish three closure/remediation performance standards that parties may use
to satisfy their cleanup responsibilities. The State permits the individual party to select which risk
feduction standard to use. To attain Risk Reduction Standard 1, a person must remove and/or
HiF I , ' I1 '^""Hi] | lj|I||i|ii|i!. i:|ili|i /"I""!!!'a*'MHI llllVfllllK^ illBiMflJI*; UUP;!!!j,ii'i, HIM"'!"! ||i|"V||||||| ' :„ "• ,1!., '"„ "i'l) U'WI1, ,'l • ' I'1 ;, „ ! ! I1 i '\,\VM\ ' i"\,i i A>,, v . . ,, ,,,
'"!*'' 'hi, ' Ilecortfaminate all waste and environmental media to background levels unaffected by waste
' • il! •• •• ffia^^^^TpirlSdusffial' actiyiti^. Under Risk Reduction Standard 2, preliminary remediation"goals
lor over 150 chemicals of concern in soil and groundwater are used as starting points to determine
til'!*1,!1: 'I1!' jiljjijrt, lij! ! : ,h" '!' > ill!:'IIP IT ",1'IIF JP, Illllilllllll: ' i l!!!ll!iill''I'iflrPIL! 4!£ liMlllllft, I' i",'l'!'«!•!::• i'lll'l " , , I '' ' "l'° " 1^1
protective concentration levels. These values may require modification where exposure pathways
that were not evaluated in the development of the concentrations are of concern at a particular site.
These values were determined through the use of standardized human health risk assessment
equations, default exposure factors, and promulgated standards (mainly MCLs for groundwater),
where available. Otherwise, risk-based values were developed using 10"6 for Class A and B
carcinogens and 10~5 for Class C carcinogens. Levels for noncarcinogens were based on a target
Hazard Index of 1. Risk Reduction Standard 3 uses a site-specific'risk assessment process to
dejgrmine tllg protective concentration levels. Under Risk Reduction Standard 3, Texas uses 10~6 as
the goal for establishing protective concentration levels to be consistent with the risk range between
10"4 and W6. The cumulative risk from carcinogens must not exceed 10~4. For noncarcinogens,
protective concentration levels are established such that the Hazard Index does not exceed 1. The
same standards apply under the State's voluntary cleanup program.
PUBLIC PARTICIPATION
Under the hazardous substance cleanup program, the State is required by statute to provide
public notice, hearings, and the opportunity for public comment on cleanup decisions. TNRCC also
conducts hearings and meetings when requested in cases where they are not required by law. Under
the voluntary cleanup program the State is required by regulation to provide public notice. Public
comment periods and hearings/meetings are provided on an ad hoc basis.
ENFORCEMENT ' :'":"' ''""''' " "' "'"' "' ! '
Liability
The State uses strict, joint and several, and proportional liability standards. The proportional
standard is used only when the preponderance of evidence proves divisibility of liability.
Comprehensive order and injunctive authority, civil penalties of up to $25K per day, cost recovery,
liens, de minimis settlement, mixed funding, and treble damages are available.
Natural Resource Damages
Texas has authority independent of Federal law to recover for NRDs resulting from coastal
oil spills. The Texas Natural Resource Trustee program is established under 31 TAG 20.1-20.4,
20510, the Oil Spill Prevention and Response Act, and Texas Natural Resources Code 40.107(c)(4).
iTJp.CC, the Texas General Land Office, and the Texas Parks and Wildlife Department are
leiignated as natural resource trustee agencies. Since commencement of the program in 1990, there
have Been nine restoration projects under CERCLA, three of which have been completed. Four
11|..jSB' i -TIC" m"11 'i'iiiiihi!" jiiiiiiiifTii "in I- ,">i " i.s, • , i,', • .n • -., ., f. - ., « , .
projects comprise a total of S1.73M, and the other five areRP lead projects and no dollar figure is
specified^ The State determines the measure of damages by assessing the cost to restore, assess, and
!!«"> ! .'i:.!1 '"M
ft I 'ii'li *!:::l
"1 "
230
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mitigate future injury, as well as diminution in future value. Per statute, any reliable and valid
incident-specific method may be used to determine the value of claims; in most cases, Habitat
Equivalency Analysis is used. Monies recovered are used for restoration, replacement, and protection
of natural resources. The State requires public participation in the assessment and restoration
processes.
Property Transfer
Under Texas Property Code §5.008, sellers of residential property are required to give buyers
a written notice disclosing the presence of hazardous or toxic wastes. However, TNRCC does not use
this authority in administration of the State superfund program. Model deed certification language is
included in the State's Risk Reduction Rules for persons to include as a notice within a property's
deed records to indicate whether the future use of that property is suitable for residential,
commercial, or industrial land use.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Texas has a voluntary cleanup program, established in 1995 by statute and regulation (30
TAG 333). All types of commercial and industrial properties, ranging from dry cleaning sites to large
petrochemical facilities, are eligible to participate provided that they are not subject to commission
permit or order. Any person may apply to enter the program. Under the VCP, all non-responsible
parties, including owners and lenders, are released from liability for contamination occurring prior to
the date of issuance of the completion certificate. Applicants pay a user fee of $1K and are billed $74
per hour for TNRCC oversight costs.
Brownfield sites may also be remediated on an ad hoc basis through the voluntary cleanup
program. No formal criteria are in place for participation; sites owned by local government and local
government interests are selected from EPA Brownfields Initiative pilot cities. To date, five sites
have been identified, with four sites currently in the cleanup stage. The site not yet being cleaned up
has a commitment for redevelopment. In addition to the voluntary cleanup program, brownfields are
addressed through local governments and interested party education, technical review, State property
tax abatements, and letters for Federal income tax expensing of remediation costs.
231
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Region 7
Iowa
Kansas
Missouri
Nebraska
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232
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IOWA
SITES
NPL Sites
Final: 20
Proposed: 1
Deleted: 4
State Sites
Known and Suspected: 400
Identified as Needing Attention: 200
On Inventory or Priority List: 72
STATUTORY AUTHORITIES
The Environmental Quality Act (EQA), Iowa Code Ch. 381-397 and 45 5B 423-431 (1972, as
amended 1979, 1981,1984, 1987, and 1991), establishes the Hazardous Waste Remedial Fund,
provides cleanup and enforcement authorities for abandoned sites, establishes apriority list, allows
for citizen suits and water replacement, provides for site registry, and restricts property transfers.
Significant amendments concerning cleanup authority for abandoned and uncontrolled sites were
enacted in 1979,1981, and 1987. A 1984 amendment established the Hazardous Waste Remedial
Fund. !
The Groundwater Protection Act, Iowa Code Ch. 455E (1987), establishes procedures and
criteria for cleanup of groundwater.
The Groundwater Hazard Documentation Law, Iowa Code Ch. 558.69 (1987, as amended
1988), establishes disclosure requirements for real property transfers.
The Land Recycling and Environmental Remediation Standards Act, Iowa Code Ch. 45 5H
(1997), establishes a voluntary cleanup program (VCP) for the State.
PROGRAM ORGANIZATION AND FUNDING ;
The Solid Waste Section of the Iowa Department of Natural Resources is responsible for
program administration. There are currently 11.5 full time employees. Legal support is provided by
0.5 FTE attorneys in the DNR's Compliance and Enforcement Bureau. Forty-three percent (43%) of
funds for staff and administration are from Federal grants, 5% are from the State cleanup fund, and
26% are from a separate solid waste account, and 26% from RP for oversight cost
CLEANUP ACTIVITIES
At non-NPL sites, 30 cleanup actions are underway. There were no cleanup actions
completed at non-NPL sites in FY97. No voluntary cleanup activities have been started since the
legislation was enacted.
CLEANUP FUNDING
The Hazardous Waste Remedial (HWR) Fund had a balance of $1M as of the end of FY97.
Approximately $348K were added to the fund in FY97 primarily from fees on the transportation,
treatment and disposal of hazardous waste. Approximately $650K were paid out during FY97,
although about $300K of this were transferred for use in the State's air quality permitting program.
The HWR Fund may be used for administration, site investigation, emergency response,
removals, remedial actions, operations and maintenance, CERCLA match, studies and design, and
grants to local governments. Seventy-five percent of the Fund must be used for remediation at non-
CERCLA sites and for CERCLA cost share.
CLEANUP POLICIES AND CRITERIA
Cleanup decisions are made on a site-by-site basis. State regulations do provide cleanup goals
for groundwater and surface water. State cleanups may use promulgated Groundwater Action Levels
based on lifetime health advisories, negligible risk levels, and MCLs (Admin. Code §567.133), but
233
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rwr
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these are not usually used for hazardous site cleanups. Risk assessment is used to determine
applicable cleanup levels if groundwater contamination exceeds Action Levels. There is no
established risk range set out in State policy.
Under the voluntary program detailed regulations are being developed to set out cleanup
levels. Such cleanups will use risk assessment, background levels, groundwater standards, and soil
Standards per State law.
E"": 7.''. ; ;:, ,„., ;:;..: : „: .. ;:; ;; :: ; ,• - ;, . . v. :,., : :,;, . ;:, ;.;•.): , ... .:;;';;:; , ".;.;:
PUBLIC PARTICIPATION
The voluntary cleanup law (45 5H) provides for public notice. But provisions for public
comment, hearings, and meetings are handled as a matter of policy under both the enforcement and
voluntary programs. Document availability requirements are established by a general statute.
.•:.'- ;": ' :: :: : : ' :'• :::' ';": ! ; , •• ::"::; :"!:: |:" •.' : Y' : ;..Y
ENFORCEMENT " ^ ; " ^ ^ ~ ;;;;/ ;;; i ;;
Liability
Liabpity is strict and retroactive. The EQA preserves any legal or equitable rights, remedies
or defensestheState maintains that this preserves common law rules of joint and several liability.
The State must try to negotiate a settlement with RPs prior to using Fund monies for cleanup. The
State can issue orders and seek injunctions against RPs to clean up sites. The State can collect up to
$1K per day for failure to notify, up to $10K per day for water or air violations, and treble damages
for willful failure to clean up.
Natural Resource Damages
Iqwa does have authority independent of Federal law to recover for NRDs. The EQA
provides that a person having control over a hazardous substance is strictly liable for reasonable
damages to natural resources, including costs of assessment. No NRDs program exists within the
agency.
i!
Property Transfer
Under the Groundwater Hazard Documentation Law, a property owner must disclose on the
deed or with the recorder of deeds that the site was or is being used for the disposal of hazardous
substances, and a seller must disclose the presence of hazardous substances on a site before property
transfer.
The State does not have an accessible database of sites, but is developing this capability.
VOLUNTARY AND BROWNFELDS PROGRAMS
Iowa recently enacted VCP legislation, but the rules are not complete. VCPs in the State will
be independent of the State's cleanup program. For funding, the State will charge fees for oversight.
There is an initial $750 application fee, and reimbursement of actual State oversight costs is capped
at $7.5K. Iowa does not have abrownfields program.
234
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KANSAS
SITES
NPL Sites
Final:
Proposed:
Deleted:
15
1
5
State Sites
Known and: Suspected: 720
Identified as Needing Attention: 484
On Inventory or Priority List: 556
STATUTORY AUTHORITIES
The Environmental Response Act (ERA), K.S.A. §65-3453 etseq. (1988), amends Kansas'
hazardous waste law, enacted in 1981 and amended 1984 and 1985. The Act establishes the
Environmental Response Fund (ERF) and provides enforcement authorities for cleaning up
hazardous substances as well as hazardous wastes.
The Kansas Water Plan, K.S. A. §§82a-927 through 82A-953, established the State Water
Plan/Contamination Remediation Account, and provides for cleanup authorities.
The Water Pollution Control Statutes, K.S.A. §§65-171 etseq., provides enforcement
authority for cleanup of contaminated soils.
The Kansas Drycleaner Environmental Response Act, K.S.A. §§65-34-141 through 65-34-
155 (1995), establishes the Drycleaning Trust Fund, and provides for cleanup authorities and a
priority list.
The Voluntary Cleanup and Property Redevelopment Act, K.S.A. §§65-34 -161 through 65-
34-174 (1996), established a cleanup and property redevelopment program for low and medium risk
contaminated sites.
PROGRAM ORGANIZATION AND FUNDING
The Kansas Department of Health and Environment's (DHE's) Bureau of Environmental
Remediation (BER) is responsible for, among other things, Federal and State Superfund cleanups,
LUST, emergency response, above ground storage tanks, mine land reclamation, landfill
remediation, and the voluntary cleanup program. The Remediation and Restoration Sections, which
deal with hazardous substance site cleanups, are staffed by 46 FTEs. Legal support is provided by the
Office of Legal Services of the DHE; three FTE attorneys work on the program. Funding for staff
and program administration comes from a variety of sources including the State general fund (5%),
Federal grants (20%), State Water Plan (60%), and PRP reimbursements (15%).
CLEANUP ACTIVITIES
The State's contaminated sites list, updated biennially, includes all confirmed contamination
sites. Currently, cleanup actions are underway at approximately 587 non-NPL sites. In the FY97,
nine cleanup actions were completed at non-NPL sites. One hundred and eleven cleanup actions at
non-NPL sites have been completed since the start of the State program.
CLEANUP FUNDING
The State Environmental Response Fund has a balance of $0 at the end of each fiscal year. In
FY97 it received revenues of $616K. A total of $516K was paid out of the fund to support activities
at non-NPL sites. The fund is used to operate the State's program. Cost recoveries are the significant
source of monies for the fund. The statute authorizes penalties and transfers as sources of revenue for
this fund, however, these sources were not realized.
The State Water Plan-Contamination Remediation Account is the primary cleanup account.
The Account had a balance of $0 at the of FY97. A total of $1.7M was added to the Account during
the fiscal year. Expenditures during the year, all to non-NPL sites, comprised approximately $1M.
235
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Ill1 'I lid
'Taxes,,,on water, pesticides, and fertilizer comprise the major source of revenue for the State Water
Plan, which may be used for site investigation, studies and design, removals, emergency response,
remedial actions, CERCLA match, operations and maintenance, and program administration.
The Drycleaning Trust Fund was established in 1995. In FY97, Fund revenues and Fund
expenditures both equaled $960K. As a result, the Fund's unencumbered balance at the end of FY97
•Was $0. The•Fund may-be used for studies and design, site investigation, removals, emergency
tesponse, remedial actions j and" program administration. Funds derive primarily from taxes and
drycleaning solvents and a sales tax surcharge.
CLEANUP POLICIES AND CRITERIA
BERhas established interim cleanup target concentrations for the cleanup of contaminated
groundwater and soil. The State also uses risk assessment, water quality criteria, MCLs/MCLGs, and
background levels. Risk goals ranging from lO'4 to 10"6 are used. The Voluntary Program specifies
the use of risk assessment. Land use-based cleanups are allowed under the cleanup program and
1 •ll«!:l»ilillllKili:il"li!i SilrJJi, ijjl'i iilllii'lliilili1 ' ., lINlllllllllllllllli ' I .Ml',!,*. ,!l".'"'.' !JI"llli",>l'"I ITO!',, |.'«'.»!l i' i I'll11!1! .ii i',.|, ' B.1 ' ft ,' rtllll'1!.!,' >r ' • • fl ' 'If 1 'IF' ? .It. ' nHr , '",i,,! ! , ', i/HII!" M ! i" ,, , ' •:
-------
deposit $1K; category two sites (contamination is onsite but has a'ffected groundwater and soils) must
deposit $2.5K; category three sites (contaminated groundwater has migrated offsite) must deposit
$5K. Kansas does not have brownfields authority; however, Kansas does have funding to provide
brownfield assessments and technical assistance.
237
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MISSOURI
ilf'UKi!1 "I1"!"1! ii', T"l,l
I I
SITES
NPL Sites
Final:
proposed:
Beieted:
23
0
1
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
1475
225
57
STATUTORY AUTHORITIES
The Missouri Hazardous Waste Management Law, Mo. Rev. Stat. §§260.350 - 260.575
(1977, as amended in 1980,1983, 1985, 1987, 1988, and 1993), authorizes the Hazardous Waste
Remedial Fund and provides for apriority list, strict liability, site access, administrative order
authority, penalties, and punitive damages. The Voluntary Cleanup Law (passed in 1993 as S.B. 80),
||p. Rev. Sta| §§260.565-575, provides authority for a Voluntary Cleanup Program.
iSfJ! ' Lr IL'r',;!, ^'lilt., M "" i.'l ii ( '," ' III I I I 'if:" : :• ,,; f'i
' ' I' ( '^'r ','.'.','!'!
^ program in Missouri is administered by the Department of Natural Resources,
Division of Environmental Quality, Hazardous Waste Program with 51 FTE staff Other support
agencies include the Division of Geology and Land Survey and the Missouri Department of Health.
The Attorney General's office provides legal support with two FTEs. Funding for staff and
administration comes 90% from Federal grants and 16% from the State's cleanup fund.
Ill III III II II II 11II III I I II i,ir :, • ; ,• :„,!,' ' , I, ' - ' , '4':,,',. ' ",i H If: • If !,",:• ''! I 'lli1 ''•I HI 'I : ' •,'!•;„ . ""'i'.1: 'i" " ,i ,,
CLEANUP ACTIVmES
Sites are listed on the Slate's priority list if they are abandoned or uncontrolled and hazardous
waste has been illegally disposed of, or where hazardous waste was disposed of prior to regulations
promulgated ^^^ ^ state's Hazardous Waste Law.
There are 103 cleanup actions underway at non-NPL sites. One hundred and forty-one (141)
cleanup actions have been completed at non-NPL sites since the start of the program, including 17
during FY97. Of these actions, there are 50 cleanup activities in progress under the voluntary
program. Twelve (12) sites were completed during FY97 under the voluntary program, and 30 have
been completed since the voluntary program's inception.
i
CLEANUP^FJJNDmQ . II' .".! ' , .'. '.. "'..' .1 |
The Hazardous Waste Remedial Fund has a balance of $5.2M, all of which is obligated,
(encumbrances and obligations are currently $6.5M, spread over the next several years). During
FY97, fund revenues were $3.1M and expenditures were $2.7M. Funds are primarily provided by
taxes on hazardous waste generators based on tonnage and the method of handling waste. There is a
IJ.5M per year cap on this tax. Fees on landfilled waste also contribute to the Fund. Cost recovery is
a significant source of revenue as well. Penalties, fines, and interest are also contributors to the Fund.
The Fund may be used for site investigation, emergency response, removals, studies and design,
reftifdial actions, CERCLA match, operations and maintenance, program administration, health
studies, and acquisition of property.
Missouri also maintains a portion of its separate Hazardous Waste Fund to hold and disburse
fees and funds deposited under the Voluntary Cleanup Program. The Fund contains up to several
hundred thousand dollars of these funds at any one time, but funds are dedicated to oversight at
particular sites.
238
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CLEANUP POLICIES AND CRITERIA
The Department sets cleanup levels on a site-by-site basis. State water quality criteria,
MCLs/MCLGs, risk assessment, and soil standards may be used to set cleanup levels. Cleanups may
take future land use into account. The State Health Department provides site-specific "any-use soil
level" recommendations. The State is currently developing Cleanup Action Levels in Missouri
(CALM), which has three tiers - residential, commercial, and industrial. Risk goals are usually set at
lO'5.
PUBLIC PARTICIPATION
Public notice, comment, and document availability are required by statute (Chapter 610). In
addition, the Missouri Hazardous Waste Management Law provides for appeals through the
Hazardous Waste Management Commission, which may convene a public hearing if a resolution of
appeals cannot be negotiated. Public meetings, availability sessions, fact sheets, and news releases
are commonly used to provide information to the public, and to solicit input from the public. Public
participation under the voluntary program is established by policy, rather than by statute.
ENFORCEMENT
Liability
Strict and retroactive liability applies. Treble damages are available to the State. Violations of
property transfer or change of use laws may be subject to a penalty of $1K per day.
Natural Resource Damages
Natural resource damages can be pursued under the water pollution law (Rev. Stat. Mo.
644.056). Missouri's NRDs program began in the mid-1980's and has two NRD claims pending
under CERCLA.
Property Transfer
Property transfer provisions exist under Missouri's Hazardous Waste Management Law
(Section 260.465 RSM). The law requires disclosure on the deed that a site has been used for the
disposal of hazardous substances. Sellers must disclose the presence of hazardous substances on the
site before transfer, and changes of property use must be approved by the State. The State must
maintain a database of sites.
VOLUNTARY AND BROWNFffiLDS PROGRAM
The Voluntary Cleanup Program, established by Mo. Rev. Stat. 260.565 in 1993 and
effective in 1994, is administered by a separate unit. Participation is open to any site except those
with imminent and substantial threats to public health or the environment, sites where a PA/SI has
been performed and NPL listing is pending, RCRA facilities, or sites where enforcement action is
warranted. The State Voluntary Cleanup Program (VCP) uses the same standards as the State law.
RCRA enforcement, CERCLA enforcement, and NPL-caliber sites are not eligible for the program.
Non-NPL and non-RCRA sites are eligible for the program. Participants pay the State's actual costs
and overhead (actual x 2.5). The application fee is $200 and a $5K initial deposit is made toward the
costs. The incentive for participation in the program is that the Department issues a "No Further
Action" letter upon completion of a voluntary cleanup. The letter addresses only the contaminants
identified and cleaned up, providing no additional liability protection for other substances.
The Brownfields Program is also established by statute, Mo. Rev. Stat. §§4471.700 to
447.718; it began in August 1995. It is administered by the economic development agency, which
consults with DNR under the voluntary cleanup program. Sites must have been abandoned for three
years and be owned by a governmental entity in order to participate.
239
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W^^ ililSll '< l: :
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NEBRASKA
SITES
NPL Sites
Final:
Proposed:
Deleted:
10
0
0
State Sites
Known and. Suspected: 400
Identified as Needing Attention: 200
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
Nebraska does not have a formal enforcement or fund program for cleaning up non-NPL
contaminated sites. The Environmental Protection Act (Neb. Rev. Stat. §81-1501 through §81-1533),
does not cover hazardous substance sites specifically. However, Nebraska uses NCRR Vol. 8 Title
118 of its regulations, promulgated under §81-1505, to prohibit pollution of groundwater and to set
standards for cleanups.
The Remedial Action Plan Monitoring Act (§§81-15,181 to 81-15,188), established
Nebraska's voluntary cleanup program effective January 1, 1995.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Air and Waste Management Division of the Department of
Environmental Quality (DEQ) has 10.5 FTE staff. Legal support is; provided by one-half FTE DEQ
attorney. The majority of the program's funding comes from Federal grants (95%), the rest being
supplied by State general funds (5%).
CLEANUP AcnvrriES
The State has no priority list of sites. There have been no cleanup activities at non-NPL sites
except under the voluntary program. Three voluntary cleanup actions are underway, while one was
completed in FY96. Of the sites in Nebraska potentially needing attention, approximately 10 are
municipal landfills, 100 are manufacturing sites, 10 are industrial landfills, and 80 are agricultural-
related sites.
CLEANUP FUNDING
Nebraska has no State cleanup fund.
CLEANUP POLICIES AND CRITERIA
Cleanup standards are assessed on a site-by-site basis under the voluntary program. Title 118
sets standards for groundwater cleanup, which are applied where appropriate, and water quality
criteria, which are also applied where appropriate. The State generally uses risk goals of 10"4 - 10"6,
depending on future land use.
PUBLIC PARTICIPATION
Title 118, applicable to groundwater cleanups, requires PRPs to submit a Remedial Action
proposal based on a "detailed site assessment." Public notice of the proposal is given by newspaper
and radio, with copies available in public libraries. A 30-day comment period and any requested
hearings run prior to final review. Hearings and meetings are also required by regulation. There are
no separate public participation requirements specified in the State*s voluntary cleanup statute.
241
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ill1! • S ;'W; ffijif!!'!1 • fH!:' 'Win i •'!! I'!"!": ft1 ti ftxjfft't ' f ijrif • >! ,i i> '
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ENFORCEMENT
Liability
Title 118 authorizes Nebraska to issue administrative orders and injunctions against PRPs
causing groundwater pollution. The State may also seek judicial civil penalties. Citizen suits may be
pursued against solid waste disposal violations in cities of 1st (largest) class. Strict liability applies
for groundwater pollution only. There are no civil penalties or punitive damages.
Natural Resource Damages
Nebraska has no program.
Property Transfer
Nebraska has no property transfer provisions, however the State's residential property
transfer law also requires disclosure of known environmental hazards prior to transfer of certain
residential properties.
VOLUNTARY A^ B]MWNFp^S I^OGRAMS
Anyone is eligible to participate in Nebraska's voluntary cleanup program, established by
statute in 1995. Participants will receive a letter from the State indicating that the site has been
cleaned up to the State's satisfaction. The State's participation is funded by cost reimbursement by
applicants. The State's fees include a $5K application fee and a $5K participation fee.
Nebraska does not have a brownfields program.
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242
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Region 8
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
243
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COLORADO
i li
I'In
K i ini
SITES
NPL Sites
A
Proposed:
Deleted:
17
2
2
State Sites'
Known and Suspected: 624
III I II Jill II III lilllll I III III • j,,, ' 't ,| M, > :.
Identified as Needing Attention: 178
On Inventory or Priority List: N/A
-STATUTORY AUTHORITIES | ...... ......................... [[[
Colorado does not have a formal program for cleaning up non-NPL sites. However, the State
works with responsible parties to encourage clean up and has a formal voluntary program, the
Voluntary Cleanup and Redevelopment Act, Colo. Rev. Stat pZ'S-ilT-SOf efs'eql (1995): The
Hazardous Waste Sites Act, Colo. Rev. Stat. ||25-16-101 efse^. (1985, as amended 1988 and 1990),
authorizes Colorado's participation in the Federal CERCLA program. It also establishes the
Hazardous Substance Response Fund and me Natural Resource Damages Fund, which are used to
fund the State's participation in the Federal program. State enforcement authority is derived from
other environmental statutes, such as the Water Quality Control Act, Colo. Rev. Stat. §§25-8-101 et
Seq., and the Hazardous Waste Management Act, Colo. Rev. Stat. §§25-13-1(111 etseq.
PROGRAM ORGANIZATION AND FUNDING
J-
of Public
Health and Environment has 18.5 FTE staff working in the State superfund Program, six FTE staff
who are working on non-NPL sites. Approximately 10 attorneys from the Colorado Attorney
General's office provide legal support to the program. Funding for program staffing and
administration comes from Federal grants (60%), from RP response cost reimbursement (30%), and
from the State Hazardous Substance Response Fund (1 0%).
CLEANUP ACTIVITIES
The State does not typically manage cleanups at non-NPL sites. Although the State does not
maintain a formal priorities list, Colorado works with EPA's CERCLIS list There are 624 known or
suspected non-NPL sites in Colorado, 178 of which have been identified as needing attention.
Cleanups are currently underway at 41 non-NPL sites. During FY97, four cleanups were
completed, and six have been completed since the start of the program.
Colorado currently has 36 voluntary cleanups underway.
i!
CLEANUP FUNDING
The Hazardous Substances Response Fund, with a balance of $11M as of the end of FY97, is
available for CERCLA match, removals, operations and maintenance, and program administration.
Significant sources of the Fund include cost recoveries and waste fees; a minor source is interest;
During FY97, the State added $3.6M to the Fund. Obligations from the Fund totaled $16M at the end
of FY97, All of the monies paid out in FY97, $1.2M, were spent on NPL sites^
The Natural Resource Damages Fund had a balance of $8M at the end of FY97. It is funded
by NRDs settlements and interest, and may be used for natural resource restoration under CERCLA.
There have been no expenditures from the fund.
CLEANUP POLICIES AND CRITERIA
Health-based cleanup levels are determined using water quality criteria, MCLs, background
-------
promulgated as part of the RCRA program. These standards may be used in conjunction with risk
assessments. The State uses risk levels of 10~4 to 10~6.
An owner's stated land use is considered in determining cleanup levels for voluntary
cleanups. Approval of the proposed remedy under the voluntary program is rescinded if the land use
changes.
PUBLIC PARTICIPATION
Colorado has no formal public participation requirements.
ENFORCEMENT
Liability
The State cleanup fund statute contains no enforcement authorities. Colorado may use other
statutes (e.g., Water Quality Control Act, Hazardous Waste Management Act) to collect civil
penalties for violation of cleanup orders. The State has used its hazardous waste law at Federal
facilities at Rocky Flats and Rocky Mountain Arsenal.
Natural Resource Damages
The State began seeking NRDs as a trustee under the Federal CERCLA program in 1983 and
has recovered approximately $5.7M to date. The State Attorney General has filed seven NRD
lawsuits, and five have been settled. The amount of the two pending claims has not been determined.
The money from settlements is collected in the Natural Resource Damages Fund, and is appropriated
annually by the General Assembly for the restoration, replacement, and protection of natural
resources under the Federal program.
Property Transfer
Colorado regulations require an owner or operator of a hazardous waste disposal facility to
record, within 60 days after closure, a statement notifying potential purchasers that the property was
used to manage hazardous waste (6 Code of Colo. Regs. 1007-3 Section 264.119).
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The Voluntary Cleanup and Redevelopment Act of 1995 established a voluntary cleanup
program under which all sites except UST, RCRA, NPL, and CWA sites are eligible for
participation. Participants are eligible for no-further-action determinations from the State upon
completion and approval of cleanup. The State's administrative costs are funded by a $2K per site
fee.
Although Colorado has no official brownfields program or written policy, the State is
working on three EPA pilot brownfield sites.
245
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MONTANA
SITES
NPL Sites State Sites
Final: 8 Known and Suspected: N/A
Proposed: 1 Identified as Needing Attention: 187
Deleted: 0 On Inventory or Priority List: 187
STATUTORY AUTHORITIES !"' ",
The Comprehensive Environmental Cleanup and Responsibility Act (CECRA), Mont. Code
Ann. §§75-10-70! through 729 (1989, as amended 1991, 1993, 1995 and 1997), establishes the
Environmental Quality Protection Fund and contains priority list, enforcement authority, NRDs,
citizen suit and property transfer provisions.
State Participation in CERCLA, Mont. Code Ann. §§75-10-601 through 627 (1983, as
amended 1987,1993, and 1995), establishes me Hazardous WasteTCERCLA Special Revenue
Account and also contains priority list, enforcement authority, NRDs, citizen suit and property
transfer provisions.
The Voluntary Cleanup and Redevelopment Act (VCRA), Mont Code Ann. §§75-10-730
through 738 (1995, as amended 1997) authorizes Montana's voluntary cleanup program and contains
property transfer provisions.
In 1997, the State passed the Controlled Allocation of Liability Act (CALA), Mont: Code
Ann. §§75-10-742 through 752. CALA establishes the orphan share State special revenue account to
help pay cleanup costs at non-NPL sites.
Montana also has statutory cleanup authority under the Water Quality Act, which provides for
citizen suits and enforcement authority.
PROGRAM ORGANIZATION AND FUNDING
The Site Response Section, Hazardous Waste Site Cleanup Bureau of the Environmental
Remediation Division of the Department of Environmental Quality (MDEQ) has 22 FTE staff on
Federal and State Superfund programs. Legal support is provided"by four FTE attorneys from the
DEQ Legal Unit. Funding for program administration comes from the State cleanup fund (31%),
Federal grants (65%), and the special projects/direct PRP fund (4%).
CLEANUP ACTIVITIES \
Cleanup activities are currently underway at 12 non-NPL sites. During FY97, cleanup
activities were completed at six sites. Cleanup activities are ongoing or have been completed at 43
Sites since the start of the cleanup program. In addition, there are currently 94 interim sites where
emergency removals have occurred but no further remedial actions have been completed.
Since VCRA was passed in 1995,13 voluntary cleanup plans have been approved. Cleanup
activities have been completed at 12 of these 13 sites.
Montana maintains an inventory of sites that is based on known or threatened releases that
pose an unacceptable risk to human health or the environment. The inventory list consists of 10%
landfills and dumps, 3% drum and barrel sites, 11% refineries, 11% mining sites, 12% railroad sites,
13% wood treatment sites, and 40% "other" types of sites.
CLEANUP FUNDING ^ '_""' ^ \ " ' \ ' ^ ^ "__ ["_ i"" ~_ ' '.... .!' ", ' ".
The Environmental Quality Protection Fund (EQPF) is available for site investigation,
CERCLA match, studies and design, removals, emergency response, remedial actions, operations
and maintenance, program administration, and natural resource restoration. Significant sources of the
246
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Him I I'll1!1!
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Fund are cost recovery and interest. The Fund balance at the end of FY97 was $742.5K. Additions to
the Fund totaled $779. IK. A total of S664.7K was paid out, all at non-NPL sites. In addition, a total
of $5.3K was obligated to non-NPL sites.
The Hazardous Waste/CERCLA Special Revenue Account is available for CERCLA match,
removals, site investigation, studies and design, remedial actions, emergency response, operations
and maintenance, grants to local governments, and program administration. A significant source of
funds for the account is the interest earned annually by the Resource Indemnity Trust Fund. Many
programs are funded out of this account that do not pertain to cleanups or other State superfund
activities, so information on the Fund balance, monies obligated or encumbered, and additions to the
Fund was not available. The total amount paid from the Fund during FY97 for cleanup activities was
$16.95K, ah1 of which was spent at NPL sites.
The Federal Agreements Account is funded through cooperative agreements and is available
for site investigation, studies and design, operations and maintenance, removals, emergency
response, grants to local governments, remedial actions, and program administration. The account
had a balance of $28.21K at the end of FY97. Additions to the Account during the year totaled
$1.19M. Almost the entire amount was spent at NPL sites.
The final fund available for cleanups is the Direct PRP Fund. Money in the account comes
from private funds, and may be used for site investigation, emergency response, studies and design,
removals, remedial actions, operations and maintenance and program administration. The Fund
balance at the end of the fiscal year was approximately $13.8M. Funds obligated or encumbered
totaled $37K, with $21.2K obligated to NPL sites and $15.9K obligated to non-NPL sites.
Approximately $20.4M were added to the Fund during FY97 and $6.6M were paid out. A total of
$6.5M was spent at NPL sites, and a total of $139.8K was spent at non-NPL sites.
CLEANUP POLICIES AND CRITERIA
The State uses site-specific risk assessment in conjunction with water quality standards and
soil standards (based on Federal soil screening levels for screening purposes). The State also
considers background levels, MCLs/MCLGs, and ground water standards. Numerical total risk goals
are 10~5 for water quality, 10~6 for screening soils, and 10"5 for soils that have undergone a thorough,
site-specific risk assessment. Cleanups under CECRA must demonstrate acceptable mitigation of risk
and be protective of the health, safely, and welfare of the public and the environment. The statute
also requires that the remedy be effective, reliable, cost-effective, and technically feasible.
Montana also considers land use in determining cleanup standards. Current zoning, local
ordinances, and past and current uses are factors in determining future land use. Deed restrictions and
stipulations in "No Further Action" letters are used to maintain specified land uses.
PUBLIC PARTICIPATION
CECRA requires public notice and comment for remedial actions, administrative orders, and
consent decrees. CECRA also requires notice to local governing bodies and city commissioners and,
at their request, a public meeting must be held. The Voluntary Cleanup and Redevelopment Act
provides for notice, comment, and public meetings on voluntary cleanup plans. The MDEQ typically
allows for more participation than is required by CECRA.
ENFORCEMENT
Liability
Under CECRA, the State may impose strict, joint and several, and retroactive liability.
Amendments to CECRA in 1995 provide for a two-year pilot study of the use of proportional
liability. Amendments to CERCA in 1997 provide for an optional1 liability allocation process that
allows for reimbursement of orphan shares from the orphan share State revenue special account.
247
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MDEQ is required to make a good-faith effort to have RPs pay for cleanup activities before
expending State cleanup funds. The State may issue a unilateral order, negotiate a consent order,
institute a civil action, or clean up a site using State funds. The State may impose administrative
penalties of $1K per day and civil penalties of up to $10K per day per violation. The State may also
collect double punitive damages plus costs from RPs.
Natural Resource Damages
Montana's NRDs program is authorized in §75-10-715 of Mont Code Annotated. The State
began seeking NRDs in 1983 when the State sued the Atlantic Richfield Company (ARCO) for
NRDs resulting from ARCO's mining and mineral processing activities at four NPL sites in the
Upper Clark Fork River Basin. The $763M claim was brought under both State and Federal law and
is still pending.
Determination and measurement of damages in NRD claims may take into account the cost
of restoration, interim lost use, and nonuse value. The value of some claims may also be based on
contingent valuation or the replacement value of the resources. NRD funds recovered by the State are
used for the restoration and replacement of natural resources. Public participation is not required in
the NRD assessment process.
Property Transfer
Montana has a publicly available database with the locations and descriptions of hazardous
substance sites.
VOLUNTARY AND BROWNFEELDS PROGRAMS
Since May 1,1995, Montana has had a voluntary cleanup program established by the
Voluntary Cleanup and Redevelopment Act, §§75-10-730 through-738, Mont! Code Annotated. Any
person or entity is eligible to participate in the voluntary cleanup program, and all non-NPL sites are
eligible, although the State is given discretion to reject applications. The State approves a voluntary
cleanup plan and supervises a public comment process. The participant has five years to execute the
plan and cannot deviate from the agreed course of action. The participant must reimburse the State
for all administrative costs. Cost recovery is based on actual cost; there is no standard fee. Incentives
for participation in the program include enforcement stays and "No Further Action" letters.
Montana does not have a separate brownfields program.
248
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NORTH DAKOTA
SITES
NPL Sites
Final:
Proposed:
Deleted:
2
0
2
State Sites
Known and Suspected: N/A
Identified as Needing Attention: N/A
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
North Dakota does not have a formal program for cleaning up non-NPL contaminated sites.
The Hazardous Waste Management Act (HWMA), N.D. Cent Code §§23-20.3-01 to -10 (1981, as
amended 1983, 1987, 1991, 1994), provides enforcement authority that may be used in conjunction
with cleanups.
The Water Pollution Control Law (WPCL) N.D. Cent Code §61-28-01 etseq. (1967), also
provides enforcement authority that may be used in State cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Division of Waste Management in the Environmental Health Section of the Department
of Health administers hazardous substance cleanups. Within this Division, five FTE staff work on
superfund cleanups, but no single employee works solely on superfund issues, and only .5 FTE work
on non-NPL sites. In addition, one FTE attorney in the Attorney General's office provides legal
support to the Department for all environmental programs. EPA grants (75%) and State general funds
(25%) provide funding for program administration.
CLEANUP ACTIVITIES
Cleanups at 13 non-NPL sites are currently underway in North Dakota. Cleanup activities
were completed at 12 sites during FY97.
North Dakota does not maintain a site cleanup priority list.
CLEANUP FUNDING
The Environmental Quality Restoration Fund provides funds for site investigations, studies
and design, removals, emergency response, and remedial actions. At the end of FY97, the Fund
balance was $160K. Major sources of funds include cost recovery and interest, penalties are a minor
source of funds.
CLEANUP POLICIES AND CRITERIA
The State employs water quality criteria, background levels, groundwater standards, MCLs,
and soil standards in conjunction with site-specific risk assessments to determine cleanup levels.
Land use is considered in determining cleanup levels. Assumptions about future land use are
based on historical use, zoning, and location of sites. North Dakota uses deed restrictions and
disclosure of historical information to ensure the maintenance of specific land use.
PUBLIC PARTICIPATION
No statutory requirement for public participation exists, but the Division provides public
notice and provides local officials with information about a site on an ad hoc basis.
249
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ENFORCEMENT
Liability
The Attorney General's Office selects liability on a case by case basis. HWMA authorizes
retroactive liability and a choice between joint and several and proportional liability. HWMA
provides for civil penalties up to $25K per day per violation, and the WPCL provides for civil
penalties up to $10K per day per violation.
Natural Resource Damages
The State does not have authority independent of Federal law to recover NRDs.
Property Transfer
The State has no property transfer requirements.
I
l ill I I 111 II III I I I I II 'I
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State does not have a voluntary cleanup or brownfields program.
250
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SITES
NFL Sites
Final:
Proposed:
Deleted:
3
0
1
SOUTH DAKOTA
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
1424
STATUTORY AUTHORITIES
The Regulated Substance Discharge Law, S.Dak. Codified Laws Ann. Chapter 34A-12
(1988, as amended 1989, and 1995), establishes the Regulated Substance Response Fund, which
provides for a cleanup fund, strict liability, administrative order authority, civil injunctive relief, cost
recovery and liens.
The Hazardous Waste Management Act, S.Dak. Codified Laws Ann. Chapter 34A-11 (1983,
as amended in 1988, and 1995), establishes standards for treatment, storage and disposal of
hazardous wastes, and provides for site access, civil and criminal penalties, and citizen suits.
The Water Pollution Control Act, S.Dak. Codified Laws Ann. Chapter 34A-2 (as amended
July 1,1995), prohibits the degradation of all ground and surface waters of the State, establishes
standards for groundwater remediation, and imposes criminal and civil penalties for violations.
The Environmental Protection Act, S.Dak. Codified Laws Ann. Chapter 34A-10 (as amended
July 1, 1995), allows responsible parties to enter into voluntary compliance and settlement for
cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environment and Natural Resources (DENR) is the lead agency for State
cleanups. The Groundwater Quality Program within the Division of Environmental Regulation has
2.5 FTE staff dedicated to cleanup activities and the Attorney General's Office provides legal support
for the program with one FTE attorney. Federal grants provide 90% of funding for staff and
administration while the State general fund provides 10%.
CLEANUP ACTIVITIES
Cleanups are currently underway at 241 sites, and cleanup, activities were completed at 63
sites in FY97. Cleanup activities have been completed at 824 sites. Of sites needing attention in
South Dakota, 12% are industrial landfills, 7% are agricultural, 4% are mixed products, and the
remaining sites consist of petroleum and/or mixed products contamination.
South Dakota maintains an inventory that consists of all of its sites, including sites with
reported releases and sites with removals or response activities underway.
CLEANUP FUNDING
The Regulated Substance Response Fund had a balance of $1.8M at the end of FY97.
Additions in the amount of $200K were made to the Fund during the fiscal year. The major source of
funds is penalties, and a minor source is accrued interest. The Fund may be used for emergency
response, removals, site investigations, studies and design, remedial actions, natural resource
restoration, and operations and maintenance activities.
CLEANUP POLICIES AND CRITERIA
The State employs groundwater standards, soils standards,, and MCLs/MCLGs in conjunction
with site-specific risk assessments to determine cleanup levels. The State uses a risk goal of 10'5.
251
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Ill 111
PUBLIC PARTICIPATION
State policy establishes provisions for public notice, public comment, and hearings/meetings.
S. Dak. Codified Laws Ann. §1-40-31 provides for document disclosure for all DENR programs.
ENFORCEMENT
Liability
Strict and joint arid several liability standards apply to State cleanups, as appropriate. State
law allows for retroactive Uability, and provides for civil peh'alHesup'tb" $10K per day per violation.
South Dakota does not have any provisions for punitive damages.
Natural Resource Damages
The State has authority to recover NRDs under S. Dak Codified Laws Ann. Chapters 34A-2-
^5, 34A-11-14, and 34A-T6. No NRD claims have been filed under State law, but one Federal claim
is currently pending.
Property Transfer
Under S. Dak Codified Laws Ann. Chapter 43-4-42 through 43-4-44 inclusive, the State
requires a seller to disclose the presence of hazardous substances on a property. South Dakota's
residential property transfer law contains requirements for disclosure of environmental hazards prior
Id transfer of certain residential properties. The State also maintains a database of known or listed
cleanup sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State does not have a voluntary or brownfields program, but assists local communities in
obtaining Federal brownfields funding and will enter into voluntary cleanup settlements on a case by
case basis under S. Dak Codified Laws Ann. Chapter 34A-10-17.
252
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UTAH
SITES
NFL Sites
Final:
Proposed:
Deleted:
12
4
0
State Sites
Known and Suspected: 325
Identified as Needing Attention: 40
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
'The Hazardous Substances Mitigation Act, Utah Code Ann. §19-6-301 etseq. (1991, as
amended 1995), provides enforcement authority, establishes the Hazardous Substance Mitigation
Fund (HSMF), and provides for a priority list and voluntary cleanups.
The Voluntary Release Cleanup Act, Utah Code Ann. §19r8-101 etseq. (1995), provides for
voluntary cleanups and authorizes the State to grant waivers of liability.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Branch of the Department of Environmental Quality (DEQ), Division of
Environmental Response and Remediation has 34 staff members. Legal support is provided by three
attorneys in the Division of Environmental Response and Remediation and three attorneys in the
Utah Attorney General's Office, each of whom works part-time on superfund and other cleanup
issues. Funding for program staffing and administration is provided by the State general fund (15%),
Federal grants (84%), and voluntary cleanup program fees (1%).
CLEANUP ACTIVITIES
All of the cleanup activities underway in Utah are voluntary cleanups. Cleanup activities are
currently underway at nine sites, and voluntary cleanup activities were completed at three sites in
FY97. Voluntary cleanup activities have been completed at six sites since the inception of the
program.
Of sites needing attention, 10 are municipal landfills., 10 are mining sites, 12 are
manufacturing sites, and 8 sites are classified as "other."
Utah's priorities list of 11 sites consists only of sites that are on the NPL or meet the Federal
HRS scoring criteria for the NPL.
CLEANUP FUNDING
The HSMF had abalance of $1.5M at the end of FY97. Monies obligated or encumbered
totaled $14M. Of this amount, $10M were obligated to non-NPL sites and $4M to NPL sites. The
Fund may be used for site investigation, studies and design, removals, emergency response,
CERCLA match, natural resource restoration, and operations and maintenance. Significant sources of
the Fund include appropriations and NRD settlements, while interest and voluntary private
contributions constitute minor sources of funding. During FY97, the State added $400K to the Fund
and spent $500K.
CLEANUP POLICIES AND CRITERIA
Cleanup standards are established based on risk. Regulatory standards such as
MCLs/MCLGs, groundwater standards, and water quality standards are applied as appropriate. Risk
goals are 10"4 to 10"6 for the proposed land use. Future land use is determined by an owner's intended
use and local government zoning. If the land use changes, cleanup standards may become more
stringent. A certificate of cleanup completion that specifies any land use restrictions is filed in the
appropriate county recorder's office.
253
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ill 111
fBLIC PARTICIPATION
III in iiiiiir ii iinii LI i IMIIII i n • ? j1 v,,: i i,-11!',;!: :• , i1 if i.;";,'t,'»'!i:? :'! m';i/if *pi/»,: " nil1' ij'!'1™1 "',;' :^ •• ' •
Utah's hazardous substance cleanup program has no formal public participation
<4 I mm i i in i i iiiiiiii i ii i INI in IK .,¥..£, .,S. , £, f *
uirements, but as a policy follows NCP guidelines, which provide for public notice and comment,
public meetings, and document availability. TEe Voluntary Release Cleanup Act requires public
participation in the voluntary cleanup process. Until rules are promulgated, however, the DEQ will
continue to apply the NCP public participation requirements on an ad hoc basis in voluntary
cleanups.
ENFORCEMENT
Liability
The State uses strict and proportional liability standards. The State may impose civil penalties
of up to $10K per day per violation, but cannot collect punitive damages. The State only may impose
liability under State law for releases that occurred after March 18,1985.
Natural Resource Damages
Utah does not Have authority independent of Federal law to recover NRDs. The State has
one CER^ Of the settlement, $9M has been reserved for
restoration of surface or groundwater resources, and the remaining $28M has been set aside for
remediation. One CERCLA NRDs action is currently pending. The claim has not been quantified.
Property Transfer
Under the Voluntary Release Cleanup Act, Utah requires disclosures in the deeds of
properties cleaned up under the voluntary program.
VOLUNTARY AND BROWOTffiLDS PROGRAMS . ,' [ 2,,. I, „ ,„ ,, „.........,', , , I
Utah's voluntary cleanup program was established under independent statutory authority in
1997 with the passage of the Voluntary Release Cleanup Act. Since 1991, the State had conducted a
voluntary cleanup program for contaminated sites as part of the general State cleanup. NPL sites,
RCRA corrective action sites, or sites with pending enforcement actions are not eligible to participate
in the program. However, any responsible party at eligible sites may participate. Only participants in
the program who are not RPs under the Hazardous Substances Mitigation Act may be eligible for a
State-issued waiver of liability after a successful cleanup. The program is funded through a $2K
application fee, which covers State review of the application and oversight of the project. The
participant also pays any additional State oversight costs. The State does not have a brownfields
program. However, redevelopment of industrial properties througji the voluntary cleanup program is
strongly encouraged
254
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WYOMING
SUES
NPL Sites
Final:
Proposed:
Deleted:
3
0
0
State Sites
Known and Suspected: >140
Identified as Needing Attention: N/A
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
Wyoming does not have a formal program for cleaning up non-NPL contaminated sites. The
Environmental Quality Act, Wyo. Stat. Ann. §§35-11-701 to -1506 (1973, as amended through
1996), provides rulemaking authority, enforcement authority, and contains citizen suit provisions.
The Act authorizes the use of funds from the Trust and Agency Account Fund to address immediate
public health and environmental emergencies and hazards.
PROGRAM ORGANIZATION AND FUNDING
The Solid and Hazardous Waste Division within the Department of Environmental Quality
(DEQ) is primarily responsible for hazardous substance cleanup. Currently, eight FTE staff work on
hazardous waste permitting, corrective action, enforcement and compliance issues. The Attorney
General's office provides legal support with three FTE attorneys. Federal grants provide 75% of
funding for the hazardous waste program while the State general fund provides 25%.
CLEANUP ACTIVITIES
Information on cleanup activities at non-NPL sites is not currently available, but the State is
in the process of developing site inventory and corrective action summary databases. Wyoming does
not maintain a priority list of its sites.
CLEANUP FUNDING
Although Wyoming does not have a designated cleanup fund, DEQ is authorized to use funds
from the Trust and Agency Account Fund to remedy and abate immediate public health and
environmental emergencies and hazards. Information about the financial status of this Fund was not
available.
CLEANUP POLICIES AND CRITERIA
DEQ's Solid and Hazardous Waste Division establishes cljeanup levels on a site-by-site basis.
Cleanup levels for groundwater are background, Wyoming water quality standards, MCLs, or State
drinking water equivalents (DWELs). For soils, the cleanup objectives are background levels, levels
protective of ecological receptors, levels protective of human receptors under an unrestricted land use
scenario (10"6 for carcinogens; hazard quotient of less than or equal to 1 for noncarcinogens), and
levels protective of groundwater at the groundwater cleanup objectives (fate and transport).
The State assumes that property may be used for any purpose and, therefore, does not take
land use into consideration.
PUBLIC PARTICIPATION
Wyoming follows Federal CERCLA regulations and policies on public participation. The
hazardous waste program developed policy on enhanced public participation during the RCRA
corrective action process. In addition, the State uses heightened public participation at significant
sites. Citizens may comment on rulemaking, permitting, and corrective action decisions.
255
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III i •,!•'> !i:i
ENFORCEMENT
Liability
The State does not have specified liability standards. The State may impose civil penalties of
up to $10K per day per violation. For willful and knowing violations, penalties of up to $25K per day
per violation are available. The State does not impose punitive damages.
II '' PEMil ,1 ,'1:11:4 I.:, Hi, " 'Ir'I'IIW
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Natural llesqurce Damages
'' 'Wyoming does not have authority independent of Federal law to recover NRDs.
Property Transfer
Hazardous waste sites undergoing corrective actions must restrict use of the property until
final cleanup objectives are attained.
: I. .53 •:!••,„ II Kir Ml: A
AND BROWNFffiLDS PROGRAMS , ^ .. ,„ : ......... ri ......... ..... ;,, , s_ ....... ,;, , ai ...... ,
Wyoming does not have a voluntary or brownfields cleanup program.
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Region 9
Arizona
California
Hawaii
Nevada
257
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Ill ill I
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ARIZONA
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NPL Sites
Final:
Proposed:
Deleted:
11
0
1
State Sites
Known and Suspected: 900
Identified as Needing Attention: 75
On Inventory or Priority List: 3 0
STATUTORY AUTHORITIES
The gnvjjrontnenfaj Quality Act, Ariz. Rev. Stat (ARS), Title 49, Ck2| Section 281 to 298
(1986, as amended 1987,1990,1992,1994,1995, and substantially amended in 1997), establishes
the Water Quality Assurance Revolving Fund (WQARF) and provides for strict and proportional
liability, administrative orders, abatement and remedial actions, injunctive actions, water supply
replacement, civil penalties, cost recovery, treble damages, and voluntary cleanups, and requires the
Department of Environmental Quality to set risk-based remediation standards for residential and
nonresidential use. The 1992 Amendments, ARS, Title 49, Ch. 290 §10, Ch. 291 §8 and Ch. 300 §5,
identify sources of Fund monies, authorize uses of the Fund, set forth remedial action criteria, and
provide additional enforcement authority. ARS, Title 49, Ch. 295 (1992) provides for environmental
lien authority. The 1997 amendments provided for anew registry, replacing the former priority list,
changed the liability standard to proportional, and provided detailed authority for voluntary cleanups.
The Greenfields Pilot Program, Ariz. Rev. Stat. (ARS), Title, 49, Section 153 to 157/1997,
provides for voluntary cleanup under a new pilot program.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Programs Section in the Waste Programs Division (WPD), Department of
Environmental Quality (DEQ) administers the State's hazardous substance cleanup programs. The
Voluntary Cleanup Program is administered by the WPD's Pollution Prevention and Division
Support Section, Voluntary Sites Unit. Combined, these sections have 56 FTE staff of which 26 are
funded under the WQARF cleanup program. Total authorized FTEs are 68. The Office of the
Attorney General provides seven attorneys.
The Fund covers 40% of administrative costs, with Federal grants providing the remaining
60% of the funding.
11 CLEANUP ACTIVITIES "\ ^^,'." ,i,'.,. '., '.. !.!','.''., '. '. I".', „",' .T!!,.IIL,'.' '!'
The registry is the new7 reformulated" WQARF list All sites were re-evaluated per the 1997
law. The 30 registry sites are those that the ADEQ will work on directly. Cleanup actions are
currently underway at 22 non-NPL sites with 44 sites completed since the start of the program and 11
completed in FY97. Of these, most are under the voluntary cleanup program, where cleanup actions
are underway at 21 VCP sites. Sixteen sites have been completed since the start of the VCP in 1992;
ten completed in FY97.
Of the sites needing attention, approximately five are municipal landfills, 20 are
manufacturing sites, four are mining sites, and one is an industrial landfill.
CLEANUP FUNDING
The WQARF (1500 Account) had a balance of $432.8K at the end of the fiscal year.
Additions totaled $1.7M during FY977 Expenditures, all for non-NPL sites, totaled $1.3M. The
WQARF (4000 Account) for staff and administration had a balance of $309.5K, with additions of
f 3.4M and expenditures of $3.1M during FY97. The WQARF Emergency Response account had a
balance of $71K, with additions of $210.5K and expenditures of $139.5K.
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The 4000 Account is funded by fees, cost recoveries, and settlements; it also receives some
civil penalties, interest, and user fees under the voluntary program. The 1500 Account is funded by
appropriations, as is the emergency response account.
Expenditures from the 1500 Account are for site investigation, CERCLA match, studies and
design, operations and maintenance, removals, remedial actions and loans (but not grants) to local
governments. Expenditures from the 4000 Account are for staff and administration. Expenditures
from the emergency response account are limited to nonregistry sites.
The entire WQARF is larger than the accounts described above and includes funding for
other kinds of activities.
CLEANUP POLICIES AND CRITERIA
Remedial actions must assure the protection of public health and welfare and the
environment, allow the maximum beneficial use of State waters, and be cost effective over the period
of potential exposure to hazardous substances.
The State applies risk assessment (for soils), MCLs, and State water quality standards and
aquifer quality standards where appropriate. Soil remediation standards may be site-specific (10"6 to
10"4 for carcinogens or Hazard Index of less than 1) or off-the-shelf (based on 10"6 for known
carcinogens and 10"5 for others).
Land use based cleanups include recordation of a consent order in the deed records. For soil
cleanups to less than residential standards, a voluntary environmental mitigation use restriction
(VEMUR) is recorded after the cleanup (ARS §49-152, and Rule 18-7201).
PUBLIC PARTICIPATION
Both State cleanup and voluntary programs provide for public notice, comment, and hearings
per ARS 49-289 and ARS 49- 282.05, respectively.
ENFORCEMENT
Liability
Liability is strict, proportional (since 1997), and retroactive. Civil penalties are $5K per day.
Treble damages are authorized.
Natural Resource Damages
Although the State has no written policy, cleanup settlements signed by the Director (since
July 1991) contain a clause reserving the right to claim or assess NRDs. No damages have been
recovered and no claims are pending.
Property Transfer
Arizona Real Estate Department rules require an agent to disclose any material fact that may
affect the value of a property. The Real Estate Department has a policy stating that environmental
issues, such as actual or potential contamination, are material facts, and advises owners to disclose
their existence. The ADEQ is required to maintain a database of contaminated sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State has a voluntary cleanup program, established in 1992 and expanded in 1997. There
are four options for voluntary cleanup. These include the agency-wide program (ARS §49-104 (A)
(17)), the new greenfields pilot program (ARS §§ 49-153 to 49-157), which has not yet been used,
and two WQARF programs (ARS §49-282.05, §49-285 (B)). The WQARF programs account for
most voluntary cleanups of hazardous substance sites. The chief distinction between them is that one
of the WQARF programs may be entered into before commencing cleanup or during the cleanup,
259
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n, jile the other allows participation before, during or even after a volunteer has completed cleanup.
Sites that are non-NPL and not State-lead WQARF sites are eligible. Expedited review and covenants
not to sue are incentives for participation. The State's participation is funded by reimbursement of
Slate expenses'bythe volunteer. Typical cleanups handledunSer'thVprogfahi have been $500 to $5KT
in cost, and as high as $10K.
The State has launched a program targeting up to 100 brownfields sites through the new
greenfields pilot program, which was not yet effective in FY97.
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CALIFORNIA
SITES
NPL Sites
Final:
Proposed:
Deleted:
94
4
4
State Sites
Known and Suspected: 3247
Identified as Needing Attention: 420
On Inventory or Priority List: 188
STATUTORY AUTHORITIES
The Hazardous Substance Account Act, Cal. Health and Safety Code §§25300 et seq. (1981,
as amended every year 1982 -1984 and 1986 - 1995), which includes the Hazardous Substance
Cleanup Bond Act of 1984, §§25385 - 25386.6, establishes the site mitigation program and provides
for cleanup fund, enforcement authority, priority list, water replacement, and voluntary cleanup.
Property transfer disclosure requirements and natural resource damage are included at §25359.7, and
§25352 of the Cal. Health and Safety Code, respectively.
PROGRAM ORGANIZATION AND FUNDING
The Department of Toxic Substances Control (DTSC) Site Mitigation Program has 298.2
FTE staff, in four regional offices and headquarters who work on NPL and non-NPL sites. The
Department's Office of Legal Counsel and Criminal Investigation has five attorneys assigned to the
Site Mitigation Program, and the Attorney General's Office provides another seven attorneys. The
Department also works with the State Water Resources Control Board and the Regional Water
Quality Control Boards. The Regional Water Quality Control Boards also undertake their own
cleanups in cases of groundwater contamination. Funding for Site Mitigation Program staff and
administration comes 30% from Federal grants, and 70% comes from Hazardous Waste Control
Account.
CLEANUP ACTIVITIES
The State maintains a list of the sites that are actively being worked on, according to risk
priorities. At non-NPL sites, 188 are being cleaned up, 44 were completed in FY97, and 220 have
been completed since the program inception. Of these totals, cleanup activities were completed under
the voluntary program at 55 sites, including 13 in the last FY.
On a State database including all types of sites (not just hazardous substance sites),
approximately 558 are landfills, 201 are recycling sites, and 6900 are other types of sites. '
CLEANUP FUNDING
The Hazardous Waste Control Account (HWCA) had a balance of $1 IK at the end of FY97.
Encumbrances for the fiscal year were $1.6M. Essentially this fund, which is supported primarily by
waste fees, is spent down each year. In the future a dedicated tax will support this fund. The fund
may be used for site investigation, studies and design, removal and remedial actions (prohibited until
RPs are given notice and opportunity to clean up), emergency response, operations and maintenance,
State CERCLA match, program administration, and enforcement against RPs.
The Chaptered Bond Fund had a balance of $2.4M at the end of FY97. In FY97, the
Chaptered Bond Fund paid out $228K. This account is funded by bond issuance. This fund can be
used for site investigation, studies and design, removals, emergency response, remedial actions,
CERCLA match, program administration, and operations and maintenance.
261
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Illlllll
ill11
c"cleanup"levels are based on acceptable risks, future land use, and the NCP. The
State sets risklevels" aHO""4 to 10'7, with 10'6 as apoint of departure. Remedial action plans must be
based upon, among other things, the effect of contamination on beneficial uses of resources, the
gg^^^^j^^'j^edial action measures on groundwater, site-specific characteristics, and cost
e'ffectiveness"TheState has promulgated MCLs for many water contaminants and a number of other
standards, including air toxics. The State also uses background levels. The DTSC Voluntary Cleanup
_«™^y,_.^. ™^ e^lished a^imstrativeiy DTsc does not treat Voluntary Cleanup Program
sites differently than other sites. There is a Voluntary Cleanup Program Policy in place.
PUBLIC PARTICIPATION
The Department must hold at least one public meeting before adopting a remedial action
plan, and must review and consider public comments. Anyone affected by a removal or remedial
action must be provided with the opportunity to participate in the Department's decision making
process. The Department must develop, and make available to the public, a schedule of activities for
each site. These policies apply to both State hazardous substances, and VCP sites.
• ENFORCEMENT
Liability
The State has strict and proportional liability standards. DTSC generally proceeds under
CERCLA to recover its costs. The State has civil or administrative penalty authority for up to $25K
per day for violating an order/agreement, and criminal penalties up to $25K per day and/or
imprisonment for up to one year. Treble punitive damages are available. There is a citizen suit
provision under Proposition 65. An RP may seek judicial review of a final remedial action plan. An
J8P"m«st'be®[verrn6tice and opportunity to assume cleanup responsibility, and fail to comply, in
Slder;iQr.AeStatetqimdertake a cleanup or enforcement activity. Legislation allows cooperating
RPs ^suenonc^er^ng j^g -£-r three times their share of cleanup costs. The cooperative RPs get
50% of the award and the Department gets 50% of the award.
Natural Resource Damages
California Health and Safety Code §25352 provides authority to recover NRDs. DTSC and
the Department of Fish and Game have been designated as the State's Trustees for natural resources.
DTSCfequentlyfiles claims under CERCLA and OPA as well as State law. The Department of Fish
and Game restores damaged natural resources using reimbursable funding from RPs and the
Department of Fish and Game's Pollution and Abatement Account. Natural resource damage
activities include identifying and quantifying NRDs; identifying feasible restoration alternatives and
their costs; calculating compensation; and coordinating with Federal and State co-trustees.
Property Transfer
California requires disclosures of contamination b efore the transfer of nonresidential
property, and deed recofHaion. The State's residential property transfer law also requires disclosure
of known environmental hazards prior to transfer of certain residential properties. The State also
maintains a databaseof sites (CalSites).
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State has a Voluntaty Cleanup Program that was administratively established in 1993.
The VCP is operated under the same regulations as the State cleanup program. It is open to known or
suspected soil/groundwater contaminated sites, but not Federal or State superfund sites and facilities
262
i
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outside of DTSC jurisdiction. The program gives responsible parties more control over cleanup. The
State's oversight costs are funded 100% by responsible parties.
Although there is no official Brownfields Program, the State reports that it targets
brownfields through a variety of programs: VCP, Annual Workplan Sites, abatement of regional
groundwater plumes, and contaminated aquifers (innocent landowners relieved of liability).
263
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Illllll 1
HI Hill
HAWAII
II Illllll III
SITES
t
NPL Sites
Final:
Proposed:
Deleted:
4
0
0
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
524
103
4
STATUTORY AUTHORTTIES
The Environmental Response Lcnv, Haw. Rev. Stats. §§128D-1 etseq. (1988, as amended
1991), establishes a fund for removals and remedial response actions and provides for strict, joint and
several, and retroactive liability; administrative order and site access authority; civil and criminal
penalties; reporting requirements; cost recovery; provision of alternative water supplies; NRDs; and
property transfer. In 1997, the law was amended to establish a voluntary cleanup program (VCP),
Haw. Rev. Stats. §128D-2 et seq.
PROGRAM ORGANIZATION AND FUNDING
The Hazard Evaluation and Emergency Response Office (HEER) in the Environmental
Management Division of the Department of Health has 18 FTEs, who handle all aspects of response
actions on NPL and non-NPL sites, and who administer the Voluntary Cleanup Program. One
! &tf5rri^'from"the Attorney"Generai's'Ofrice works'"50% on ^ese'RElIil''^^®^'^'''HEM gets
approximately 50% of its program and administrative funding from Federal grants, 12.5% from the
State General Fund, and 3 7.5% from the State Fund.
CLEANUP ACTIVITIES
The State's priority list is limited to sites where a formal cleanup agreement has been signed.
"O^er'than'emer^ncy Vaporise,''currentiy the State has no cleanup activities conducted by the HEER
Office at non-NPL sites. In prior years some removals and voluntary actions have occurred at non-
NPL sites, but the State does not have this historical informationtracked in! an" accessible way. No
cleanup at VCP sites has occurred to date, but one cleanup is underway at a brownfield site.
CLEANUP FUNDING \
The State Environmental Response Revolving Fund had a balance of $0 for FY97. It was
entirely expended in connection with the November 1996 hurricane. The Fund is being replenished to
its prior $500K level funded by oil tax. This fund is used for site investigations, studies and design,
removals, emergency response, revenues, CERCLA match, operations and maintenance, natural
resource restoration, and program administration.
The VCTFfund was established in 1997 with an EPA grant and has not expended any of the
$150K starting balance. This fund supports administration of the program. The brownfields program
was also established in 1997 with EPA funding and has not expended any of the $75K starting
balance,
CLEANUP POLICIES AND CRITERIA
In 1995, the HEiER'Ofrice adopted regulations establishing risk assessment and management
criteria and cleanup policies. Water quality criteria, MCLs/MCLGs, and background levels are also
Used where appropriate. Standards for subsurface contamination are established by a policy
statement. The State also has a modelling process and'has'estab'IisneH standards for petroleum
constituents, f fie State usesrisk goalsi" ranging between TO"4 and 10"6. The same cleanup standards are
used for the voluntary cleanup program
264
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PUBLIC PARTICIPATION
Public participation requirements are established in regulation (Chapter 11-451, the State
Contingency Plan). The same requirements apply to the Voluntary ;Cleanup Program. The State
determines what public participation activities are appropriate, then conducts or requires PRPs and/or
VCPs to conduct the following activities: issuing press releases and fact sheets; making personal
contacts with local officials, community residents, public interest groups, or other interested or
affected parties, as appropriate; and preparation and implementation of a community relations plan.
Where the State determines that public participation is in the public interest or significant concern
has been expressed, the State publishes a notice of availability of the administrative record in a
newspaper that is printed and issued at least twice weekly in the county affected by the response
actions, and if appropriate, in a newspaper of general circulation in the State within 60 days of
initiation of onsite removal activity. Public comments and hearings may be held.
ENFORCEMENT
Liability
Liability is strict, joint and several, retroactive, and includes liability for NRDs. Civil
penalties are available for $10K per day for failure to report a release and at least $50K-100K per day
per violation for failure to comply with an enforcement order. Punitive damages for failure to
perform removal or remedial actions are treble. Cost recovery actions must be commenced within six
years of completion of response actions.
Natural Resource Damages
Hawaii's Environmental Response Law, Chapter 128D-5(d), allows the State to recover
NRDs and use the State funds for restoration, rehabilitation, replacement or acquisition of natural
resources that were damaged or destroyed due to a release. There is a three year statute of limitations.
The HEER Office under the Deputy Director of Environmental Health acts as trustee for NRDs. No
money has been recovered since the start of the program in 1990.
Property Transfer
The types of property transfer provisions existing under State law are under the new
voluntary cleanup program. They include: a requirement of disclosure on the deed or with the
recorder of deeds that the site was or is contaminated with hazardous substances; requirement that the
seller disclose the presence of hazardous substances on the site before transfer; requirement that the
seller investigate the property to determine if hazardous substances exist on the site; and requirement
of cleanup agreement before transfer. The State's residential property transfer law also requires
disclosure of known environmental defects prior to transfer of certain residential properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The State has a program for voluntary cleanups of contaminated sites. In 1997, the VCP was
established by Statute and is currently in the development stages. The State's participation will be
funded through an account that is established within the environmental revolving fund. This fund will
require a $1K nonrefundable application fee and a deposit of up to i$5K to initiate a site-specific
account and reimburse the State for oversight costs. All sites are eligible except: NPL listed and
proposed sites; enforcement sites under CERCLA; RCRA corrective action sites; and (as determined
by the director) sites that are enforcement sites under State law or where a State response is
underway, sites that pose an imminent and substantial threat, and sites affected by a significant public
interest. Incentives to participate include a letter of completion and! exemptions from liability for
prospective purchaser upon completion (if cleanup attains risk goal of 10"6). The letter of completion
265
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' III! El
1
is recorded on the property deed and its conditions run with the land; it is also sent to the county
agency that issues building permits.
XftrownEelcls: poficy has been developed as part of the VCP. Only one site has been
identified as a bfownlelds pilot site, Kakaako Park. No cleanup is currently underway. Cleanup
standards for brownfieids are determined the same as all sites in the State.
266
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NEVADA
SITES
NFL Sites
Final:
Proposed:
Deleted:
1
0
0
State Sites
Known and Suspected: 129
Identified as Needing Attention: 129
On Inventory or Priority List: N/A
STATUTORY AUTHORITIES
Nev. Rev. Stat. §§459.400-459.600 (1981, as amended 1983, 1985, 1987, 1989, 1991),
primarily covers operating facilities and spills. It gives authority for spill cleanup by the State or
responsible parties. It also establishes the Hazardous Waste Management Fund (HWMF).
The Water Pollution Control Law, Nev. Rev. Stat, Chapter 445, provides for additional
enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Bureau of Corrective Action, part of the Department of Conservation and Natural
Resources' Division of Environmental Protection, oversees the State's superfund, RCRA corrective
action, and UST programs. 4.5 FTEs in the Remediation Branch and three FTEs in the Superfund
Branch are involved in remediations and superfund activities. The, Attorney General's Office supplies
two attorneys to the Division. Funding comes from the HWMF (85%) and Federal grants (15%).
CLEANUP ACTIVITIES
The State does not maintain a priority list, but has 129 nonpetroleum related open cases. The
authorized RCRA regulatory program, and statutory authority under the Water Pollution Control
Law are the primary mechanisms used to require and oversee cleanup activities. There are currently
cleanup activities underway at 129 non-NPL sites. Since the start of the State's cleanup program, 520
cleanup actions have been completed at non-NPL sites. Ninety cleanup actions were completed at
non-NPL sites during FY97.
CLEANUP FUNDING
The Hazardous Waste Management Fund had a balance of $1M at the end of the fiscal year.
During FY97, approximately $300K were added to the Fund, and then paid out for non-NPL sites.
Approximately $500K were obligated at the end of the fiscal year for use at non-NPL sites. Most of
the revenue comes from waste volume fees. Cost recoveries and penalties are also minor sources of
funding. The fund monies may be used for site investigation, studies and design, removals,
emergency response, remedial actions, CERCLA match, operations and maintenance, natural
resource restoration, and program administration.
CLEANUP POLICIES AND CRITERIA
Action levels for contaminated sites are set by regulation with respect to both soils (N.A.C.
445A. 2272) and groundwater (N.A.C. 445A. 22735). Water quality criteria, MCLs/MCLGs, and risk
assessments are also used. The State uses risk goals of 10"4 to 10"6, Cleanups are to residential
standards unless otherwise specified; land use restrictions are typically reflected in notices recorded
on the deed.
PUBLIC PARTICIPATION
State law and policy do not require public participation. However, the Corrective Action
Bureau follows general NDEP public participation requirements, which address public notification,
267
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In! II (11111
nil i in ill
II 11 IK
public hearings, public records, advisory groups, appeal procedures, and input to regulatory and
statutory development. In addition, the Bureau of Corrective Actions will conduct public outreach to
g^ucate the jcggulated community and the general public about its programs.
Liability
Liability is strict for those in possession of hazardous material involved in a spill. Liability is
f etroactive. Administrative order authority, including orders for information and site access,
subpoena authority, injunctive action, criminal penalties, and cost recovery are available. Cost
recovery is generally secured in consent agreements. Civil penalties of $25K per day per violation
are available. Punitive damages are not authorized.
Natural Resource Damages
Nevada does not have a NRDs program.
Property Transfer
Nevada does not have property transfer provisions.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
The voluntary program is part of the standard cleanup program, and any party is eligible to
participate. Civil penalties will not be assessed against PRPs who participate. State participation is
funded by the HWMF.
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The State is currently developing a brownfields program. It targets areas currently zoned for
industrial use for cleanup.
268
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Region 10
Alaska
Idaho
Oregon
Washington
269
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recoveries, and disbursed $1M. $329K were obligated as of the end of the fiscal year. The Account is
for emergency responses.
The Prevention Account receives funds from the oil surcharge, interest, and cost recoveries.
In FY97 this Account received additions of $5M in interest, $4M in cost recoveries, and $12.9M in
oil surcharge funds. It expended $19.8M, of which $5.3M was transferred to the UST fund and the
State's general fund. Funds obligated as of the end of the fiscal year were $1.4M. Prevention
Account money may be used for site investigation, studies and design, CERCLA match, operations
and maintenance, removals, emergency response, remedial actions, program administration, and
grants to local governments.
CLEANUP POLICIES AND CRITERIA
The State uses risk assessments, MCLs/MCLGs, water quality criteria, background levels,
groundwater, and soil (petroleum) standards. State guidelines provide for risk levels of 10"5 for
individual carcinogens, and cumulative risk of 10"4. Proposed cleanup regulations are pending. These
include deed restrictions and notices. The voluntary program will also follow this approach.
PUBLIC PARTICIPATION
The Department attempts to involve the public depending on the seriousness of the site and
on public interest. Public notice, public comment, hearings and meetings, and document availability
are provided on an ad hoc basis.
Citizen advisory panels are formed for major cleanups. National Contingency Plan public
participation guidelines are followed. The legislature has established a Citizens' Oversight Council
on Oil and Hazardous Substances.
ENFORCEMENT
Liability
Liability is strict, joint and several, and retroactive. Civil penalties are $500 to $100K for first
violations, and no more than $10K per day that a violation continues. No punitive damages are
available.
Natural Resource Damages
The State has authority independent of Federal law to recover for NRDs under AS
§46.04.040 (5). Alaska's authority, however, is very broad, and recovered $1,OOOM for the Exxon
Valdez Oil Spill accident under State law.
Property Transfer
Alaska has no property transfer program or provisions, but does allow public access to its
sites database. However, the State has a residential property transfer law that requires disclosure of
known environmental hazards prior to transfer of certain residential properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Alaska established a formal VCP in 1996. The VCP is open to all petroleum sites and is
being expanded to hazardous substance sites. The State's participation is funded by cost recovery
after total expenses exceed $1K. The State does not have abrownfields program.
271
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SITES
NPL Sites
Final:
Proposed:
Deleted:
9
2
2
State Sites "
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
N/A
N/A
N/A
; STATUTORY AUTHORITIES [[[
Idaho does not have a State equivalent to the Federal program for cleaning up non-NPL
contaminated sites, but works with responsible parties to encourage clean up of contaminated sites.
The Idaho Voluntary Land Remediation Act, Idaho Code Chapter 72, Title 39 (1996), establishes a
voluntary cleanup program and requirements for contaminated property transfer.
The Environmental Protection and Health Act (EPHA), Idaho Code §§39-101 to -130 (1972,
as amended 1993) provides enforcement authority for the Division of Environmental Quality (DEQ)
to administer air quality standards, water quality standards, and enforcement measures.
In addition, the Idaho Hazardous Waste Management Act (HWMA), Idaho Code §§39-4401
to -4432 (1983, as amended 1984, 1987, and 1988), provides for RCRA enforcement authority,
emergency response measures, and citizen suits authority.
PROGRAM ORGANIZATION AND FUNDING
The Division of Environmental Quality's (DEQ's) Division of Water Quality and
Remediation, Remediation Bureau administers hazardous substance cleanup. The Bureau currently
ha§ ,2 FTE .assigned to cleanup of non-NPL sites. At DEQ's six regional offices approximately 4.5
' ^funded to conduct non-NPL site assessment and cleanup funded through .the State
.
Hazardous Waste Management Account. In addition, approximately three FTE are funded by
responsible parties undertaking non-NPL cleanup work. The DEQ's Remediation Bureau is
responsible for all cleanup activities at NPL sites and Federal facility cleanups. The Remediation
Bureau has 21 FTE dedicated to these efforts. Legal support for non-NPL site work is provided by
the Idaho Attorney General's Office on an as need basis by one of three attorneys that deal with non-
NPL cleanup matters. Federal grants contribute 80% of funding for program staff and administration,
while 20% of funding comes from the State cleanup fund.
CLEANUP ACTIVITIES
Information on numbers of cleanup activities is not available. Idaho does not maintain a site
priority list,
CLEANUP FUNDING
Idaho does not have a fund for non-NPL site cleanups. Idaho does have several funds that
provide monies for NPL cleanups The SupeS^d Multi-Site "(Coop'native Agreement provided
approximately $100K in Federal grants for site investigation and remedial actions during FY97.
During FY97, the Superfund Multi-Site Cooperative Agreement for the Bunker Hill site paid out
$500K for site investigation and remedial actions at the NPL site.
A Department of Energy grant provided approximately $1.3M in funds from DOE for NPL
cleanups during FY97. The monies were used for site investigation and remedial actions.
In addition, appropriations from the State Legislature during FY97 provided $520K for site
-------
Funding for non-NPL site cleanup from various State and responsible party funding sources
is approximately $375K during FY97.
CLEANUP POLICIES AND CRITERIA
The State employs water quality criteria, MCLs/MCLGs, and groundwater standards in
conjunction with risk assessments to determine cleanup levels. Idaho uses risk goals of 10"4 to 10~6
for its cleanups. Pursuant to the Voluntary Land Remediation Act, voluntary cleanups standards must
be consistent with Federal Superfund requirements.
Land use is considered in determining cleanup levels. Calculations for both residential and
industrial uses are completed in the risk assessment, followed by site-specific land use
determinations. For sites that are cleaned up to standards based on a specific land use, several types
of institutional controls are used to ensure that the land use is maintained, including restrictive
covenants.
PUBLIC PARTICIPATION
The State follows Federal Superfund guidelines for public participation by providing
opportunities for public comments, hearings/meetings, and document availability. The Voluntary
Land Remediation Act requires the State to provide public notice, public comment periods, and
hearings and meetings for all voluntary cleanups.
ENFORCEMENT
Liability
Idaho does not have formal liability standards. The State can impose civil penalties of up to
$10K per day per violation and up to $1K per day for continuing violations. The State does not
impose retroactive liability or punitive damages.
Natural Resource Damages
The State does not have authority independent of Federal law to recover for NRDs. Under
CERCLA, three NRD claims have recovered $65M. Idaho uses recovered monies for the restoration
of natural resources. Currently, $65M is being spent on two restoration projects.
Property Transfer
Idaho does not have any property transfer requirements other than requirements for
disclosure of all environmental hazards prior to transfer of certain residential properties.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
In 1996, Idaho created a State voluntary cleanup program (Voluntary Land Remediation Act).
Any party is eligible for the program except those engaged in cleanups regulated under other
authorities (e.g., RCRA). Incentives to participate in the program include tax incentives and a
covenant not to sue once remediation has been fully completed. Participants are responsible for
payment of State oversight costs.
273
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OREGON
SUES
NPLSites
""Final-
Proposed:
Deleted:
12
1
2
State Sites
Known and Suspected:
Identified as Needing Attention:
On Inventory or Priority List:
1933
306
160
STATUTORY AUTHORITIES
The Environmental Cleanup Law, Or. Rev. Stats. §§465.200-420, 465.995 (1987, as
amended 1989,1991,1995), establishes the Hazardous Substance Remedial Action Fund (HSRAF),
an Orphan Site Account, apriority list, authorizes the Department of Environmental Quality to clean
Up Sites contaminated by hazardous substances, and provides for enforcement, liability, cost
i5CO,yery, cleanup standards, public participation, NRDs, environmental disclosure property transfer,
and voluntary cleanups.
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and Cleanup'Division (WMCD) "in the Department of
Environmental '"Quality (DEQ) has a staff of 78 FTEs. One attorney from the Oregon Department of
Justice handles iitigation and" advises the ' WMCD as requested.
Funding for staff and administrative costs is provided by the State's cleanup fund (80%,
including thieCrpEanfunH^1%)"indflSRAF (53%)), Federal grants (14%), and the Dry Cleaner
Fund (6%).
II Ilii I III I ill ill I I I II I Illl • ' ' ' I" , ! , ,i 111 ,1 'I ,, , , ' ,|. iinl'W : ":" "l rl, ," I'iiliiii!,,:,'IT •'! , Mi'Ti' J'nll'." 'i'i| I I',!1", i'"'!'' I1'!, ' "„''', I '. „,.'
-------
The Dry Cleaner Fund had a balance of $690K at the end of FY97. It took in $63 OK during
FY97, and paid out $169K, all to non-NPL sites. These funds are generated by a solvent fee.
CLEANUP POLICIES AND CRITERIA
The State uses risk assessment, background levels, and soil standards to set cleanup levels.
Water quality criteria or MCL/MCLGs may be used if foreseeable uses of water are affected. Risk
levels of 10"6 are used for individual carcinogens, and 10"5 for cumulative cancer risk. The State uses
a Hazard index of 1 or less for noncarcinogens.
Oregon has adopted numeric standards for soil cleanup of 76 compounds at "simple" sites.
These soil cleanup standards allow greater residual contamination in industrial zones. Land use based
cleanups are recognized. The PRP must identify and submit all current and reasonably likely land
uses to the department for evaluation. Institutional controls are deed restrictions and other equitable
servitudes. The same cleanup standards apply to the voluntary program.
PUBLIC PARTICIPATION
The law mandates public notice of DEQ's program for identifying releases, proposed
settlement agreements, and all proposed remedial actions, with a 30-day comment period. Public
meetings are required for proposed remedial actions if requested by a minimum of 10 people. Public
notice is provided for final remedial action. The laws also provide for document availability.
Regulations for the statute were promulgated, as mandated, with significant input from a 22-
member committee composed of citizens, local governments, environmental groups, and industry.
ENFORCEMENT
Liability
The statute establishes strict, retroactive liability for owners, operators, and any person who
caused or contributed to a release of a hazardous substance. Liability is joint and several. However,
transporters and off-site generators are generally not liable. Proportional liability applies in
contribution actions using the "Gore" factors. Civil penalties of up to $10K per day are available.
The statute authorizes administrative orders, injunctive relief, cost recovery, penalties, liens,
and treble damages. WMCD favors an approach that seeks voluntary cleanup from PRPs prior to
issuance of orders; use of the Fund is the agency's last choice.
Natural Resource Damages
Oregon has authority independent of Federal law to recover for NRDs under ORS 465.255,
ORS 466.890, and ORS 468B.395. The State, however, has not sought NRD recoveries under State
law for hazardous substance sites. The Oregon Fish and Wildlife Service has been involved in some
NRDs resulting from oil spills. Responsible parties are liable under State law for NRDs.
Property Transfer
Oregon does require the seller of a site to disclose the presence of hazardous substances
(ORS 465.255(l)(c)); however, there is no active State government role. The State's residential
property transfer law contains requirements for disclaimer and disclosure of known environmental
hazards prior to transfer of certain residential properties. The State also has a database of sites.
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Oregon has a voluntary cleanup program, established by policy in 1991 and legislatively
ratified by a budget bill in 1993, that complements the orphan and enforcement program using the
same standards and criteria. Anyone wanting to move a cleanup forward is eligible to participate. The
State will provide technical assistance and a "No Further Action" letter for participants. State
275
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participation in the program is funded by cost reimbursement An hourly rate including indirect costs
and overhead for staff oversight is charged, and there is an initial $5K deposit.
Oregon does not have an official brownfields program, but does seek redevelopment of some
orphan projects, and administers a prospective purchaser program.
276
UN Hi) ill I 111 I 11 111
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WASHINGTON
SITES
NPL Sites
Final:
Proposed:
Deleted:
60
0
13
State Sites
Known and Suspected: 1493
Identified as Needing Attention: 1006
On Inventory or Priority List: 595
STATUTORY AUTHORITIES
The Model Toxics Control Act, Wash. Rev. Code Ch. 70.105D (1988, as amended 1993,
1994,1997), authorizes funding for two cleanup accounts, provides enforcement authorities,
establishes a priority list, and provides for citizen suits, replacement water supplies, and public
participation procedures.
PROGRAM ORGANIZATION AND FUNDING
The Department of Ecology (WDOE), includes the Toxics Cleanup Program, which has 144
FTE staff members, 49 of which are Federally funded. The remaining 95 FTEs are supported by the
State Toxic Control Account. The Attorney General's office has approximately 2.5 FTEs working on
cleanups. Staff and administrative costs are funded by Federal grants (30%), and a State cleanup fund
(70%).
CLEANUP ACTIVITIES
The Hazardous Sites List includes all sites that have been assessed and ranked using the
Washington Ranking Method (WARM). It includes NPL sites, but these are excluded from the 595
reported above.
At non-NPL sites, 278 cleanup actions are currently underway. Cleanup activities were
completed at 65 non-NPL sites in FY97, bringing the total completed to 348 since the program
inception.
Under the voluntary cleanup program, 34 cleanup actions are underway. Cleanup activities
were completed at 49 sites in FY97, bringing the total to 176 since the start of the program.
Of the sites needing attention, approximately 20 are municipal landfills, 312 are
manufacturing sites, two are mining sites, 140 are industrial landfills and recycling sites, and 530 are
other types of sites.
CLEANUP FUNDING
The Department administers two accounts: (1) the State Toxics Control Account and (2) the
Local Toxics Control Account.
The balance in the State Toxics Control Account was $7.4M at the end of the fiscal year.
$5.5M were encumbered at the end of the fiscal year, all for non-NPL sites. The State account
received $23.9M in FY97. A total of $27M was paid out during FY97: $26.8M for non-NPL sites,
$200K for NPL sites. The State account is funded primarily from taxes and waste fees. Cost
recoveries, fees, interest and penalties also contribute to the fund. The State account may be used for
site investigation, emergency response, removals, studies and design, remedial actions, natural
resource restoration, operations and maintenance, State CERCLA match, and program
administration. Penalties and fines are earmarked for best management practices and recycling, not
cleanup.
The Local Toxics Control Account balance at the end of FY97 was $37.46M. $2.33M were
obligated or encumbered at the end of the fiscal year. Funded by taxes, S18.79M were added to the
account and $15.64M were paid out during FY97: $3.53M to NPL sites, $12.11M to non-NPL sites.
277
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CLEANUP POLICIES AND CRITERIA
Three cleanup options are used by the State: (1) Default ("look up") levels (Tables, Practical
Quantitative Limit levels, ARARs, or background); (2) Required risk algorithms with default values;
and (3) "full" risk assessment, but only as a last resort or as necessary. The State has established
health-based cleanup standards for soils, groundwater, air, and surface water. WDOE uses water
quality criteria, MCL/MCLGs, background levels, soil and groundwater levels, PQLs, and standard
State formulas for risk assessment. Risk levels of 10~6 for individual carcinogens for unrestricted use,
and 10"s for restricted use sites. Total risk must meet a Hazard Index of 1 and cancer risk of 10~5
Land use based cleanups are allowed and uses are enforced by deed restrictions. The same standards
are used for the voluntary cleanup program.
PUBLIC PARTICIPATION
g^.^•pj^jing arid development of a site-specific public participation plan is required. The
WDOE must establish regional citizens' advisory committees, notify the public of the development of
investigation or remedial plans and of the availability of an RI/FS and Cleanup Action Plan, give
concurrent public notice of all compliance orders, enforcement orders, and notices of violation.
Jroyjiigns .includepublic notice and hearings on consent decrees. TheModel toxics Control Act
authorizes public participation grants to affected persons or not-for-profit public interest
organizations.
ENFORCEMENT ., , \
Liability
Th&Model Toxics Control Act (MTCA) provides for strict, joint and several, and retroactive
liability. The law includes subpoena authority, site access authority, enforcement order authority,
injunctive action, civil penalties (up to $25Kper day), cost recovery, and treble damages. Citizen
suits and contractor indemnification are also authorized.
Natural Resource Damages
Since 1990, RCW 70.105D.040(2) has authorized the State to collect NRDs. The Department
of Ecology is the designated natural resources trustee. The State has collected approximately $50M
as a joint trustee with the Federal trustees and tribes in seven CERCLA settlements. No State law
claims have yet resulted in recovery of NRDs. However, one claim is pending. Currently, there are
ten natural resource restorations underway and four have been completed thus far. A total of $40M
has been spent on restorations.
Property Transfer
The State has the following property transfer provisions: requirement of disclosure on the
deed that the site..was, or is, contaminated with hazardous substances (restrictive covenant); a
requirement that seller disclose the presence of hazardous substances on the site before transfer; and
"a State-maintained database'. j
II || I | Ilinlllin1 .Jili!" / ,. i:"1"-!,'"1 i '! j; , ',„ ,i' ;•!' i> l|n| „ 'j' A J »• ,;, v, \ "»i, v.|i» n ,i '. ..i "1 ! "'ii,,;1:-:, ' .:!l!l!!':!|i'!i.|i"",n," ' t I1 ||('i' ll" I '• •,n!'"' ,• .".'ilfll, ,..•,!' , > ,'»|l! ' ,
VOLUNTARY AND BROWNFffiLDS PROGRAMS
Washington has a voluntary cleanup program, established in 1993 by regulation (WAC 173-
340-550 (7)) and modified in 1997. It is authorized under theModel Toxics Control Act. Any PRP
who submits a cleanup report with a fee is eligible provided the site is not under order or subject to a
current proposal for an order. Participants receive a timely review of the cleanup report and written
determination, plus site-specific technical assistance if requested. State participation in the program
is fiinded by fees paid by the participants. The State charges actual weighted rates for staff time,
278
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which range from $60 to $80 per hour. Costs of voluntary cleanups are $100K on average, with $54K
the median.
Washington does not have a brownfields program; however, the State is targeting
brownfields through independent cleanups, prospective purchaser agreements, and prepayment
agreements.
279
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Appendix A: List of State Web Pages
Region State
Agency/Bureau Web Address
http ://www. state, me.us/dep/rwm/home.htm
http ://www. state, ma.us./dep/bwsc/bwschome. htm
http://www.state.nh.us/des/hwrb/
http://www.state.ri.us/dem/
ht^.;//wwjv:anr,state:..vt:.us.
http ://www. state, nj.us/dep/srp/index. htm
http ://www.dec. state.nv.us i
1 Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
2 New Jersey
New York
Puerto Rico
3 Delaware http://sirb.awm.dnrec.state.de.us ;
District of Columbia
Maryland http ://www.mde. state.md.us/
http://www.dep.state.pa.us/dep/deputate/airwaste/wm/default.htm
http://www.deq.state.va.us/envprog/wstman.html
http://192.243.139.248/ ' .
http,://www.adem.state.al.us
http://www2.dep.state.fi.us/waste/programs/cleanup/
http://www.dnr.state.ga.us/dnr/environ/
http://www.state.ky.us/agencies/nfepc/waste/dwmhome.htoi
http://www.deq.state.ms.us
Mtm//wastenot.ehnr.state.nc;us
http://www.state.sc.us/dhec/
http://www.state.tn.us/environmerit/dsf/home.htm
http://www.epa.state.il.us/
http ://www. ai. org/idem/oer/index. html
http ://www, deq .state,rni.us
http://www.pca.state.mn.us/cleanup/index.html
http ://www. epa. ohio. gov/derr
http://www.dnr.state.wi.us/org/aw/rr/
http://adeq.state.ar.us/hazwaste/main.htm
.la.us/oshw/oshw.htm
Pennsylvania
Virginia
West Virginia
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Arkansas
Louisiana
New Mexico
http://www.nmenv.state.nm.us
281
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it!!!'
Region State
6 Oklahoma
Texas
Hi1 i? " Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
' ' Utal
Wyoming
9 .Arizona
California
Hawaii
Nevada ,
10 Alaska
Idaho
:„:'; .:,;,; ;,Oregon
Washington
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THE ENVIRONMENTAL LAW INSTITUTE
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Institute has played a pivotal role in shaping the
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The Instijufe {§ governed by a board of directors
Who represent a Balanced mix of leaders within
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