United States
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
9375.6-08D
EPA/540/R-96/036
PB96-963249
December 1995
Superfund
xvEPA
An Analysis of State
Superfund Programs
50-State Study
1995 Update
-------
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.
-------
Table of Contents
Chapter I * Introduction 1
Chapter II $ Developments in State Programs ; 5
Chapter III * State "Superfund" Programs 9
A. Overview of Cleanup Activities and Capabilities 10
B. Statutory Authorities 12
C. Hazardous Substance Sites 12
D. Program Organization 17
E. Funding 22
F. Cleanup Policies 34
G. Public Participation 36
H. Enforcement 41
Chapter IV * Voluntary Remediafion Programs 51
A. Voluntary Cleanup Programs 51
B. Brownfields Programs 54
Chapter V * State Program Table* 57
Table V-l Overview of State Programs 58
Table V-2 Statutory Authorities and Provisions 62
Table V-3 Hazardous Site 67
Table V-4 Removal and Remedial Actions Taken at Non-npl Sites 70
Table V-5 Program Organization 73
Table V-6 Program Administration and Staffi Funding Sources 78
Table V-7 State Cleanup Funds 81
Table V-8 Expenditures and Obligations from State Cleanup Funds 85
Table V-9 Sources of State Cleanup Funds 90
Table V-10 Use of State Cleanup Funds 94
-------
Table V-ll State Cleanup Policies and Cntena c^
Table V-12 Public Participation
Table V-13 Liability Standards IC5
Table V-14 Penalties and Damages Available under State Superfund Statutes 1C8
Table V-15 Natural R£source Damages under State Laws 112
Table V-16 Natural Resource Damages Activities under Cercla 116
Table V-17 Property Transfer Provisions 119
Table V-18 Voluntary Cleanup Authorities 123
Table V-19 Voluntary Cleanup Programs 127
Table V-20 Brawnfields Programs 132
Table V-21 Brawnfields Sites 137
Table V-22 Federal-state Partnerships 140
Chapter VI * State Summaries 143
Region I 144
Region II 162
Region III 171
Region IV 187
Region V 2CS
Region VI 22'
Region VII 243
Region VIII 235
Region IX :~:
Region X ISZ
-------
List of Acronyms
AG
ARARs
ASTSWMO
CA
CERCLA
CERCLIS
CPCA
DSMOA
ELI
FOIA
FTE
GAO
HRS
LUST
MCL
MCLG
MSCA
NBAR
NCP
NPL
NRD
OGC
O&M
OPA
PA/SI
PRP
RA
RCRA
RD
RI/FS
ROD
RP
RPM
SACA
SARA
SMOA
Attorney General
Applicable or Relevant and Appropriate Requirements
Association of State and Territorial Solid Waste Management Officials
Cooperative Agreement
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980
Comprehensive Environmental Response, Compensation, and Liability
Information System
Core Program Cooperative Agreement
Department of Defense and State Memorandum of Agreement
Environmental Law Institute
Freedom of Information Act
Full-time Equivalent
General Accounting Office
Hazard Ranking System
Leaking Underground Storage Tank
Maximum Contaminant Level
Maximum Contaminant Level Goal
Multi-Site Cooperative Agreement
Non-Binding Allocation of Responsibility
National Oil and Hazardous Substances Pollution Contingency Plan
National Priorities List for Uncontrolled Hazardous Waste Sites
Natural Resource Damages
Office of General Counsel
Operation and Maintenance
Oil Pollution Act
Preliminary Assessment/ Site Investigation
Potentially Responsible Party
Remedial Action
Resource Conservation and Recovery Act
Remedial Design
Remedial Investigation/ Feasibility Study
Record of Decision
Responsible Party
Remedial Project Manager
Support Agency Cooperative Agreement
Superfund Amendments and Reauthorization Act of 1966
Superfund Memorandum of Agreement
-------
SSCA - Site Specific Cooperative Agreement
TAG - Technical Assistance Grant
UST - Underground Storage Tank
-------
Chapter I
Introduction
This year marks the 20th anniversary of New Jersey's landmark Spill Compensation
and Control Act, which 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 sixteen 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 are currently addressing
numerous sites targeted by the U.S. Environmental Protection Agency's (EPA's) National
Priorities List (NPL), the list of sites where there are 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'
own 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, and 1993) 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 for
developing regulations, guidance, and policy related to this Congressional mandate. As part
-------
of its responsibilities, the Center tries to maintain comprehensive information about State
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, the
study examines site cleanup programs in all 50 States, plus 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."
Research Methodology
To ensure that the information for this report would be complete and accurate, 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 the prior versions of the report and newer information found in
State documents, legislative reporting services, newsletters, and EPA documents. A detailed
request for updated program information was sent to each State, along with a general
request for copies of any relevant legislative amendments or State reports. In addition to the
States' written responses, ELI received a variety of materials from the States, including
annual program status reports, legislative amendments, program descriptions, policy
statements, and regulations. ELI then conducted telephone interviews to clarify written
responses and to reconcile any discrepancies in the data.
In assembling this report, EU has tried to take a "snapshot" of State cleanup
programs, while recognizing mat they are dynamic and that changes may occur after the
publication of this update. For the purposes of this report, ELI used State information that
was available on or before December 31,1995. States were provided an opportunity to
review and update all of the information in the State program summaries. Tables of all the
State programs were then compiled using the verified State information. Table V-22, which
lists the cooperative agreements mat States have signed with U.S. EPA and the grants they
receive from EPA, is the only table based on information supplied by EPA rather man the
States.
Organization of the Report
The report is divided into three discussion chapters, one chapter devoted to tables,
and a chapter of State program summaries. Chapter II highlights the most noteworthy
developments in State capabilities that emerged in comparing the 1995 information with the
previous reports. An analytical overview of State superfund programs is provided in
-------
Chapter III. This overview examines statutes, program staffing and organization, sites,
cleanup activities, cleanup policies and standards, public participation requirements, and
enforcement tools. Chapter IV - this Update's "special topic" Chapter - 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. 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 which they must meet 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 the precise
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.
-------
Chapter II
#
Developments in Slate Programs
The capability of States to clean up and to oversee others who clean up contaminated
sites depends on many factors. A comparison of information from the 1989,1990,1991,1993,
and 1995 versions of An Analysis of State Superfund Programs shows that, overall, States have
improved their cleanup capability since 1989. The following bullets provide an overview of
States' capabilities during their fiscal years ending in 1995 (FY95).
• For the first time, the numbers of sites States identified as needing attention (i.e. some
type of cleanup) declined to approximately 30,000 sites from approximately 40,000
sites in 1993.
• The number of known and suspected sites, a larger group that may include sites that
have not yet been investigated, also declined to approximately 85,000 from
approximately 100,000 in 1993.
• Aggregate program staff levels continued the trend of slight increases, rising less than
three percent during the periods covered by each of the last two studies; the levels
from 3,394 in 1991 to 3,491 in 1993, and to 3,585 in 1995. Total legal support was 211
FTE attorneys, down from 247 FTE in 1993, and from 262 in 1991. The total number of
attorneys providing legal support to State cleanup programs has declined almost 20%
since 1991.
• State cleanup funds had a combined balance (including bond authorizations) of $1.46
billion, a slight (4%) decrease from $1.5 billion in 1993, which was down substantially
from over $2.2 billion in 1991.
• During FY95,44 States reported spending $386.1 million for cleanup activities,
substantially less man the more than $700 million spent by 44 States in 1993. States
also obligated another $363.4 million to be spent in the future, also substantially less
than the $459.2 million obligated for future activities in 1993. Total additions to State
cleanup funds during FY95 were $444.58 million, less than half of the $957.3 million
added to State funds in 1993.
• An increasing number of States are standardizing their cleanup standards by
adopting regulations either specifying the standards or the procedures for
determining the standards. Twenty-four States have promulgated cleanup standards,
up from 19 in 1993 and only seven in 1991.
-------
Fifty States use MCLs or MCLGs as cleanup standards where appropriate and 49
States apply surface water quality criteria. Forty-five States use risk assessments in
determining cleanup levels. Background or ambient quality is a reference point for 43
States and the same number use EPA guidelines in determining cleanup standards.
Thirty-seven States apply groundwater standards to non-NPL sites and 27 apply sod
standards.
The number of States with public participation requirements continues to increase.
Forty-eight States now have public participation requirements, up from 45 in 1993
and 43 in 1991. Of these, 30 States have statutory or regulatory public participation
requirements, up from 24 in 1993 and 22 in 1991.
The number of States requiring specific types of basic public participation procedures
has also increased. Forty-four States solicit public comments during the site handling
process. Forty-six States may hold public meetings or hearings.
State enforcement and cost recovery provisions have remained relatively constant
Twenty-five States provide for punitive damages — the same as 1993, and up from 22
in 1989. Most of the new State statutes enacted since these reports began in 1989 have
adopted the strict, joint and several liability standard. Thirty-four States use this
standard; six of these allow some apportionment, however. Only five States, one
more than in 1993, specify a proportional liability standard. At least two States have
recently moved away from strict, joint and several liability. Illinois recently adopted a
proportional liability standard and Michigan amended its law to require proof of
causation in some situations and for certain categories of potentially responsible
parties, while retaining strict, joint and several liability as the general rule.
Forty-three States have retroactive liability under their State cleanup laws.
Twenty-eight States report that they are authorized to recover for damages to natural
resources caused by releases of hazardous substances. Only eight States, however,
reported having recovered damages under their State laws, while seven States
reported having natural resource damage claims pending.
Twenty-five States have mandatory property transfer provisions, up from 23 in 1993,
and 18 in 1991. Property transfer provisions are requirements designed to identify
contamination before or at the time of transfer of property. These provisions have
assisted private parties in ensuring that they incur no unexpected liabilities when
acquiring property; they have also helped in identifying sites where remediation may
be required. Several additional States have property transfer provisions allocated
with voluntary cleanup programs.
-------
• Thirty-one States have voluntary cleanup programs; two more are developing
programs, one of which is pursuant to recently enacted legislation. In 24 States the
voluntary cleanup programs are authorized by statute; eight States created their
voluntary programs by regulation or policy. The voluntary cleanup program is the
only non-NPL cleanup program in three States.
• States encourage voluntary cleanups in a variety of ways: 20 States provide some
form of enforcement or liability waiver; seven States provide financial incentives,
including loans, tax credits, payment of orphan shares, or caps on costs; seven States
report they are more responsive to participants needs or guarantee less oversight; five
States will not place the site on the State list or on CERCL1S, or will remove the site
from the State list; and two States provide technical assistance.
• States determine eligibility for their voluntary programs in two ways: 21 States
determine eligibility by defining which types of parties may participate; 12 States
determine eligibility by defining the types of sites which may be included in the
program.
• Cleanup and redevelopment of brownfields sites is an increasingly important issue at
the State and national level, and most voluntary cleanup programs address
brownfield sites. Some States have focused more specifically on brownfields, as
distinct from the broad universe of sites eligible for voluntary cleanup. Fifteen States
have formal brownfields programs and seven more are in the process of developing
programs.
• Three States, Illinois, Minnesota, and Oregon, each have more than 100 brownfields
sites currently under redevelopment
These few statistics are among the more outstanding indicators of the breadth and
vitality of the State effort A close examination of the information contained in mis updated
report will lead to a fuller understanding of the cleanup programs mat are developing as the
States continue to address the contaminated sites within their borders. More detailed
information on all aspects of State cleanup programs is presented in the following chapter.
-------
00
-------
Chapter III
*
State "Superfund" Programs
Since 1980, the vast majority of States have enacted laws that govern cleanup of
contaminated land and establish funds to pay for cleanup of non-NPL sites where no
responsible party is available, able or willing to do it. Thus, many States are now into their
second decade of cleaning up land contaminated by hazardous substances. The decade or
more of experience that many States have accumulated is having visible consequences for
their cleanup programs.
The majority of the State programs have authorities and capabilities 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.
An important aspect of the current state of development of State and federal cleanup
programs is that the State and federal laws are independent The federal law did not follow
the pattern of the federal pollution control laws in setting national standards which could be
administered by the States after their programs received approval by the federal agency. The
lack of a requirement to submit their programs to federal review and approval has freed
States to experiment widely and to develop some highly innovative and effective cleanup
programs. However, it also has allowed States to do little or nothing to clean up
contaminated sites that are not on the NPL Such inaction might be rational and appropriate
if a State has few non-NPL sites, but only North Dakota has determined, after assessing its
suspected sites, that it has no sites for which cleanup is necessary at this time.
-------
A. OVERVIEW OF CLEANUP ACTIVITIES AND CAPABILITIES
What is remarkable about the current status of State cleanup programs is the degree
of progress mat most of them have made since ELI first studied them in detail in the late
1980s. For example, in 1989 half of the States were actively managing cleanup activities at
non-NPL sites, but by 1995 44 States were actively managing non-NPL cleanups. 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 18 of those States'
funds had balances of less than $1 million, which is likely to be insufficient to pay for a
permanent remedy at even a single site with moderate contamination. In 1995, only
Nebraska and the District of Columbia were without a fund, and more significantly, only six
other States have funds with balances too small to pay for a permanent cleanup.
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 which 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 said they used
EPA guidance in determining cleanup standards, but few States specifically identified other
potential sources of standards. By 1995,43 States used EPA guidelines, but more significant
is that EPA is no longer the principle source of standards for any State. The greater maturity
of State cleanup programs is well illustrated by the increase in States that have established
cleanup standards by regulation from two in 1989 to 24 in 1995 - half of the States have
moved from ad hoc decision-making to standardizing this crucial decision.
The States have also matured in their use of other sources of standards and in their
methodology for choosing standards. Risk assessments, for example, were used by only 14
States in 1989, but by 1995,45 States were using health-based risk, assessments in setting
cleanup standards, and many were considering both cancer and non-cancer risks. Virtually
all of the States now use drinking water standards where appropriate, compared to only
seven States in 1989. Similarly, 48 States now use water quality criteria, compared to 33 in
1990. Also, 37 States now use groundwater standards and 27 use soil standards, a
development that is particularly noteworthy because the States have largely developed these
standards on their own.
While States have been growing and maturing in their administration of their cleanup
programs, many have continued to develop new ideas and programs for coping with the
10
-------
variety of issues that arise as government tries to clean up contaminated land. Voluntary and
brownfields programs have been the most widespread developments in the past few years,
with 31 States having specific programs to encourage voluntary cleanups (plus two more in
development) and 15 States having formal programs targeting brownfields, with eight more
developing a brownfields program. Even Nebraska, which has not previously had a cleanup
program, now at least has a voluntary cleanup program.
The desire to encourage more voluntary cleanups and to facilitate cleanup and
redevelopment of brownfields has led a few States to change their entire cleanup programs
substantially. At the end of its 1995 legislative session Illinois created a new brownfields
program that is likely to essentially replace its existing successful cleanup program. Any
owner or operator of contaminated property may now elect to be covered by the new
voluntary brownfields program as long as the site is not already required to be cleaned up
under federal Superfund, RCRA, or underground storage tank laws, nor is under
investigation pursuant to a federal court or U.S. EPA order. The new law puts the owner or
operator in control of the cleanup, from the pace to the choice of cleanup standards, with the
Illinois EPA reviewing and approving the site assessment, remedial action plan, and report
of completion of the cleanup. The agency is held to strict deadlines of 60 days for reviewing
the reports and 30 days for final approval of the cleanup after the end of the 60-day review
period. If the agency approves the completion of the cleanup, the owner or operator receives
a release from future liability as long as the site is used in accordance with the terms set by
the agency.
These are fundamental changes from the prior system, and as such are the types of
State experiments encouraged and relied on by the federalist system of government
Michigan, Pennsylvania, Minnesota, Massachusetts, and Connecticut, among others, are
experimenting in other ways. Experience with their varied programs will undoubtedly
provide greater insight into what programs can be effective at cleaning up contaminated
sites so mat they can safely be used again.
This chapter presents detailed information on State programs for all 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico. This chapter highlights
similarities and differences among State statutes and programs in areas such as cleanup and
oversight capabilities, number of sites addressed, staffing, funding, enforcement authorities,
cleanup standards, and public participation. Table V-l presents an overview of State
program elements.
11
-------
B. STATUTORY AUTHORITIES
Table V-2 summarizes the many cleanup statutes and related environmental laws
enacted by the States for the purpose of addressing sites contaminated by hazardous
substances. In some States with comprehensive cleanup statutes, these laws include State
response funds, enforcement authorities, priority lists, provisions governing property
transfers, cleanup standards, voluntary programs, victim compensation, and citizen suit
provisions. In other States, authorities for a cleanup program and enforcement may be
contained in statutes separate from laws creating a State response fund or establishing site
cleanup standards.
No new comprehensive CERCLA-type laws have been adopted since the 1993
Update. However, a significant number of States have enacted new legislation during the
past two years. For example, Utah passed legislation making it clear that the State cannot
impose liability retroactively for releases that occurred before March 18,1985. A number of
States, including Kansas, Florida, Minnesota, and Tennessee enacted new legislation to
address drycleaner sites. Typically, such legislation includes a separate fund dedicated to
cleaning up sites contaminated by drycleaning solvents and funded by fees paid by current
drycleaners. Other topics addressed in new legislation include cleanup standards (Illinois,
Michigan, Oregon, Pennsylvania), public participation (Rhode Island, Nebraska, Montana),
property transfer (Connecticut, Vermont), citizen suits (Nebraska, Washington), enforcement
(Rhode Island, Nebraska), liability standards (Michigan, Illinois), cleanup funds (Tennessee,
Connecticut), and lender liability (Mississippi). Provisions and programs intended to
encourage voluntary cleanups have been among the most common subjects of new
legislation in the past two years. Connecticut, Rhode Island, Delaware, Pennsylvania,
Alabama, Tennessee, Michigan, Ohio, Wisconsin, Louisiana, Texas, Nebraska, Colorado,
Montana, and Arizona report having passed voluntary program legislation since 1993, while
other States, including New York, California and Nevada, have adopted voluntary programs
by administrative action.
C HAZARDOUS SUBSTANCE SITES
Site Inventory
State programs have responsibility for a substantial number of sites contaminated
with hazardous substances. While approximately 1,300 sites are on the National Priorities
List (giving EPA primary jurisdiction for remediation), tens of thousands of sites are not on
12
-------
the NPL. These sites fall primarily to the States (or to EPA's removal program) for
remediation.
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 and excludes petroleum-contaminated sites and leaking
underground storage tank sites (except where the latter cannot be distinguished in a State's
reporting system). The number of non-NPL hazardous substance sites for each State.is
reported in Table V-3.
ELI has used three categories for reporting the number of non-NPL sites. These three
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 1995 totals are:
• known and suspected sites (-85,000 sites)
• sites identified as needing attention (~30,000 sites)
• sites on a State inventory, priority list, or registry (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
real number in most In some States, this category includes among the known sites 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 range from 0 (in North Dakota) to 20,000 (in New
Jersey). In 1995, the States reported approximately 85,000 sites in this category, a decline
from the over 100,000 reported in 1993. The decline appears to result primarily from
activities in a few States resulting in better classification of sites, as well as from completion
of site assessments.
Large changes in the numbers for known and suspected sites between the 1993 and
1995 studies occurred in a handful of States. Increases include Massachusetts, where the
number of known and suspected sites doubled (to 12,000) because of a changed reporting
system adopted in October 1993 mat counts each notification of a release rather than each
location to be investigated. Minnesota's total also rose (by about 3,100 sites) because of a
more aggressive effort to identify the entire universe of sites. Illinois' total rose by about
13
-------
3,600 sites, primarily because its real property transfer reporting requirements and voluntary
cleanup provisions increased the number of sites known to the State. Conversely, the
California total in this category dropped dramatically (by over 20,000 sites) because of
systematic reclassifications of sites and better assessment of which sites require action.
Pennsylvania's and Hawaii's totals also dropped (by about 2,900 and 2,500 sites,
respectively), reflecting completion of most of the PAs (preliminary assessments) for sites on
the CERCLIS database. Michigan's total dropped by about 7,000 sites, in part because the
earlier figure had included underground storage tank sites.
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 probably the best indicator of the workload
facing each State's cleanup program, and is the most useful for national and State program
planning purposes. The number of sites needing attention in particular States ranges from 0
(North Dakota, District of Columbia) to 7,000 (Massachusetts). Nationally, the States
reported approximately 30,000 sites in this category in 1995. This is a decline of
approximately 10,000 sites since the 1993 study. While some of this decline reflects
reclassification of sites, it also reflects continued progress in accomplishing cleanups. For
example, Michigan's reclassification of UST sites since the 1993 study accounted for a
substantial reduction, but New Jersey's completion of remedial actions also produced a large
decline in this number. Few States had significant increases in sites needing attention. None
increased by more than a few hundred. Illinois' number rose somewhat because more sites
were identified in connection with voluntary cleanups, for example. In summary, it appears
that the total universe of sites requiring attention has stabilized and is beginning to decline
as State assessment and cleanup programs have had an effect Only five States have more
than 1,000 sites in this category: Massachusetts (7,000), New Jersey (6,500), Michigan (2,764),
Alaska (1347), and California (1,079).
The third category reflects the number of sites maintained on a State's official priority
list, inventory, or registry. Approximately 35 States maintain some kind of list registry, or
inventory — usually pursuant to a statutory or regulatory requirement The number of sites
listed by each State in this category are not comparable to one another. Although about
18,000 sites are on these lists, they should not be aggregated because State definitions and
approaches vary widely. Many States maintain no formal list or registry. Others vary widely
in approach. Some State 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
14
-------
include only sites where the cleanup is funded by State funds rather than by responsible
parties. To illustrate, Connecticut lists only 11 sites on its registry, but, at the same time, has
identified 649 sites as needing attention. Conversely, Wisconsin's registry lists 4,000 sites,
although only 565 Wisconsin sites need attention. New Jersey has no list, although it has
identified 6,500 hazardous substance sites as needing attention.
Some of these State lists have been the subject of litigation brought by parties who
objected to their inclusion on the list. For example, in 1992 Illinois was forced by court order
to discard its previous priority list In 1995, the same thing happened to New Jersey. Illinois
subsequently reestablished its list New Jersey is engaged in the same process through
rulemaking.
Removal and Remedial Actions
The number of remedial actions and removals undertaken at non-NPL sites within a
State present one indicator of the extent of State program activity. In the interest of
consistency, ELI asked States to report their activities using the same definitions as used
under CERCLA. Remedial actions are defined as a removal of hazardous substances from a
site and long-term cleanup that includes treatment or containment of contaminated material
(soil, water/ groundwater); examples include constructing barriers to groundwater
movement and incinerating hazardous waste. Removals are defined as short-term actions
limited to site removal of hazardous substances which pose a health or environmental threat;
examples include securing the site, removing hazardous waste containers, and excavating
contaminated soils. Many States do not use these definitions when cataloguing their
activities at non-NPL sites; some States do not distinguish between removals and remedial
actions. The number of sites encompass a wide range of activities including bom small
actions State departments address and multiple units at one particular site. Accordingly,
Table V-4 combines remedial actions and removals in order to reflect the overall activity in
each State. Column 1 provides the number of remedial actions and removals underway in a
State as of the end of its FY1995 (usually June 30,1995); column 2 shows the number of
remedial actions and removals completed (defined as completions of remedial construction
infrastructure — although pumping and treating groundwater may be ongoing — and the
receipt of agency sign-off) during the last fiscal year; and column 3 presents the number of
remedial actions and removals completed since the start of the State's cleanup program.
15
-------
At non-NPL sites, New Jersey clearly demonstrates the greatest amount of current site
activity, with 9,276 remedial actions and removals currently underway and 12,004 completed
since the start of its program, 2,366 of which were completed in the last fiscal year. These
figures include a count of operable units within one location.
Although only 10 actions are currently underway, the past performance of Texas'
program reveals the same magnitude of activity as New Jersey in that 16,633 actions have
been completed since the start of its program, 3,405 in the last fiscal year. It should-be noted
that Texas tracks spills and cleanups together. During the 1993 study, Texas was
reorganizing its program and the cleanup program was only investigating sites; its program
started tracking removals in 1992.
Activity in Massachusetts occupies the next lower level of magnitude with 2,356
remedial actions and removals currently underway and 3,462 completed since the start of its
program; no data were available for the number completed in the last fiscal year.
Massachusetts reported 38 sites completed since the start of the program. Massachusetts, in
fact, changed its program in 1993. Actions now include assessments that result in no action
determinations and spills. The programs in Michigan and Wisconsin have accomplished a
similar amount of cleanup, although their current activity is somewhat less: Michigan has
completed 5,028 actions since the start of its program, 1,312 in the last year, and 250 actions
are currently underway, while Wisconsin has completed 1,200 response actions since the
start of its program (more than double the number reported in 1993), completed 42 actions in
the last year, and 130 actions are currently underway.
Alaska, on the other hand, has completed a smaller number of sites, 334 (73 in the last
fiscal year), but has 1,216 under way. The next tier of activity consists of 18 States that have
completed and/or are working on a few hundred sites, including Connecticut Vermont,
New York, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, Minnesota, Ohio,
Louisiana, Kansas, Montana, South Dakota, California, Nevada, Oregon, and Washington.
The rest of the State programs show past and current activity of fewer than one hundred
sites, many of them with fewer than ten sites. Neither Nebraska nor North Dakota have a
State cleanup program, so they have no cleanup activity to report New Hampshire, West
Virginia, and Wyoming did not provide figures for any of the requested information.
The figures provided by at least fifteen States for this study do not correlate with the
numbers they provided for the 1993 study. For FY1995, States reported a total of 16,090
actions currently underway and 44,650 completed since the start of the program. For the
1993 study, States reported 11,958 actions currently underway and 16,604 completed since
the start of the program. The States reported that 7,960 actions were completed in FY 1995
16
-------
and that 3,913 were completed in FY 1993. From these figures, it would appear that State
activity of hazardous waste cleanup has increased substantially. While activity has increased
in some cases, changes in how States answered the questions also may have played a role. In
particular, Texas reported completing 16,633 actions since the start of its program, whereas
in 1993 it reported having completed only 118 actions. This huge increase in completed
actions possibly stems from the State's program reorganization, institution of removals, and
combining spills and cleanups together. It is worth noting that Texas spent nearly $29 million
on non-NPL sites in 1995, which is consistent with such a large number of actions.
Massachusetts provided numbers for the last biennium, which means it completed about
3,500 actions during the last two fiscal years. Overall, the incongruities point out both
changes in State programs and inconsistencies in how States track and record actions
occurring in their States. When interviewed, some State program staff stated they did not
know how the 1993 figures had been tabulated. Since each State defines its actions
differently, comparisons cannot be made between State programs simply by contrasting
numbers provided on this table. Nor should comparisons be made between different years of
a State's activities since many States have altered tracking and/or procedures.
Generally, there are no more than 20 NPL sites completed and/or underway in each
State. New Jersey and Washington both have over 100 remedial actions and removals
currently going on at NPL sites. In New York, Pennsylvania, and California, over 100 actions
at NPL sites have been completed.
D. PROGRAM ORGANIZATION
Administration of a State's program to clean up hazardous waste sites is almost
always handled by the State agency with primary responsibility for environmental matters.
The responsible agency's focus may be on environmental protection, as is the case with the
Illinois Environmental Protection Agency, or its duties may be broader, as is the case with
the Kansas Department of Health and the Environment Table V-5 lists the responsible
agencies for the 52 States and the divisions (and staffing levels) within these agencies that
administer the States' cleanup programs. Many States have established a hazardous waste
management division with cleanup personnel. The organization of each State cleanup
program is unique, however, and it is difficult to make generalizations concerning program
administration. The examples highlighted below represent some of the more noteworthy
organizational features of the States' hazardous waste cleanup programs.
17
-------
Divisions within Programs
Many States' cleanup programs are divided into units, each with responsibility for a
different program element For example, the Special Projects Office in the Office of the
Director, Alabama Department of Environmental Management has 20 Full Time Equivalent
(FTE) staff working on cleanup activities in four different divisions (three in Management;
five in the Engineering Section; eight in Site Assessment; and four in Field Operations). The
Minnesota Pollution Control Agency (MPCA), Groundwater and Solid Waste Division has
one section dealing with State and federal Superfund sites with a total of 93 FTE staff. The
Site Response Section is primarily responsible for and handles hazardous waste sites, the
Voluntary Investigation & Cleanup Program, and the Site Assessment and Listing Program.
The Hazardous Waste Division handles emergency response and the Minnesota Department
of Agriculture handles agricultural chemical sites.
Staffing Levels
The number of personnel devoted to site cleanup varies greatly, from the
approximately 650 people in New Jersey's Site Remediation Program, to Wyoming, which
does not have a formal superfund program. Program staff levels are indicated in Table V-5.
The total number of State personnel working on the State cleanup programs increased
slightly from 3,491 in 1993 to 3,585 in 1995. Although the overall change is relatively small,
there have been some key changes in staffing levels for individual States. California reported
a sharp increase in staffing levels, with 297 FTEs in 1995,62 more than reported in 1993.
Michigan has experienced the most notable decrease in staff, down 83 FTEs to 296 in 1995.
Ohio, Wisconsin, and New York also report shrinking numbers of staff members. Although
New Jersey has the highest number of FTEs for FY95, its staff has shrunk since 1991, when it
had 850 FTE staff members.
Ten States employ more than 100 people working on cleanup activities:
Massachusetts, Texas, New Jersey, New York, Pennsylvania, Illinois, Michigan, Ohio,
California, and Washington. Six States have staff levels between 51 and 100 people:
Connecticut, Florida, Indiana, Tennessee, Minnesota, and Oregon. The bulk of the States, 31,
have between 11 and 50 personnel. Only five States (New Hampshire, Arkansas, Norm
Dakota, South Dakota, and Wyoming) have 10 or fewer people assigned to their Superfund
programs, down from eight such States in 1993.
18
-------
Although States were asked specifically to provide the number of FTEs working on
non-NPL sites, some of the variations between individual State numbers for both attorneys
and overall staffing may result from differences in the ways in which States account for
personnel, such as including or excluding individuals who work exclusively on federal sites.
Moreover, in many States, staff members assume multiple duties both within and outside of
the cleanup program, and State officials are often unable to indicate the precise percentage of
time that those personnel devote to cleanup activities.
PROGRAM STAFF LEVELS
to
Number of Personnel
Over 100
51-100
11-50
0-10
Number of States
10
6
31
5
Intra-Agency Activities
In a number of States, other divisions within the responsible agency provide support
to cleanup personnel. For example, in Massachusetts, 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,
scientists in the Department of Environmental Protection's Office of Research and Standards
provide risk assessment support at specific sites and in regulation and policy development.
Air quality and water quality divisions of State agencies are often consulted by their
counterparts in cleanup divisions regarding cleanup standards. Cleanup programs must also
coordinate their activities with other elements of the States' hazardous and solid waste
programs.
19
-------
Inter-Agency Activities
Many State agencies with primary responsibility for site cleanup rely on other units of
State government for assistance. In Maine, for example, the Department of Environmental
Protection (DEP), Bureau of Solid Waste Control, Division of Site Investigation and
Remediation has primary responsibility, but the DEP works with the Bureau of Health in
conducting risk assessments and lab work. A separate natural resource agency frequently
has responsibility for assessment and restoration of natural resource damages. For example,
in Minnesota and Michigan, the Department of Natural Resources (DNR) is a separate State
agency with jurisdiction over natural resource damages. In California, the Fish and Game
Department is the lead trustee for natural resource damage assessment and restoration
related to fish, wildlife and their habitats. The Department of Toxic Substances and
California EPA are authorized to be trustees for groundwater cases. However, for acute
spills and ground spills, the Fish and Game Department is still more Likely to be the lead.
Legal Support
Approximately 211 attorneys were reported by the States to be working on waste
cleanup issues, a more than 10% decrease from 247 reported in 1993. The numbers for
individual States are rather small. Only Massachusetts (22), New Jersey (23), New York (18),
Pennsylvania (12), Ohio (11), and California (13) reported more than 10 FTE attorneys
providing legal support In many States, the attorneys assigned to handle Superfund cases
also handle other types of cases, such as Resource Conservation and Recovery Act (RCRA)
and general environmental cases.
The State Attorney General's Office (or its equivalent) is the sole source of legal
support for the cleanup program in 25 States, while in 16 State agencies the department's
own legal personnel provide the sole legal support for State programs. The remaining 10
States rely upon a combination of attorneys from both the AG's Office and the responsible
agency. Vermont uses attorneys from its AG's Office, the Department of Environmental
Conservation Enforcement Division, and one attorney from its own superfund program staff.
Table V-5 presents sources of legal support for the States.
Generally, where legal support duties are split between the AG's Office and the
agency responsible for cleanup, such as in Iowa, the agency legal staff provides support on
administrative enforcement and compliance issues, such as review of administrative consent
20
-------
orders or assessment of administrative penalties. When a case requires the initiation of a
lawsuit, as in an action for cost recovery, it is usually referred to the AG's Office.
Funding Sources
There are three basic sources of funding for the States' program costs: State cleanup
funds, State general funds, and federal grants. The funding sources used by the States are
presented in Table V-6. Since 1993, there has been a reversal in the trend of State use of State
general funds versus State cleanup funds. Whereas in 1993 there had been a decrease in the
number of States using State general funds for support, in 1995 the number of such States has
risen from 27 to 30. Furthermore, whereas in 1993 the number of States using State cleanup
funds increased, in 1995 that number decreased from 39 to 36.
All but three States fund their program staffs through a combination of federal grants
and State monies. Georgia and Pennsylvania rely solely on State cleanup funds, while North
Dakota relies solely on federal funds. State funding is obtained solely through general fund
appropriations in 15 States, while 20 States rely upon their separate site cleanup funds for the
State share of administrative and personnel costs. The remaining States use both general
fund appropriations and cleanup fund monies to pay the State share of staff and
administrative costs. Some States pay for program administration and staff using additional
funding sources (marked "Other" on table V-6), which include fees, cost recoveries, and
specific grants.
Federal-State Partnership*
There are several types of agreements made between Federal and State agencies
pertaining to the funding and conduct of Superfund cleanup activities. These are: Site
Specific Cooperative Agreements (SSCAs), which enable the use of federal funds for site-
specific activities at a State-lead NPL site; Support Agency Cooperative Agreements
(SACAs), which provide federal funding to enable States with limited staff to provide
oversight assistance on EPA-lead sites; and Core Program Cooperative Agreements
(CPCAs), which are available to fund program administration activities not associated with a
specific site.
21
-------
A Superfund Memorandum of Agreement (SMOA) documents the responsibilities
and procedures assumed by the EPA and a State with regard to Superfund activities. A
SMOA may cover broad and specific implementation issues such as project review
schedules, the sharing of documents, and site-lead responsibilities. Unlike cooperative
agreements, SMOAs do not provide funding for State activities.
Table V-22 lists the SSCAs, CPCAs and SMOAs between the States and the U.S.
Environmental Protection Agency. These data were obtained from U.S. EPA.
E FUNDING
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 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. In order for a State to maintain
control over when sites are cleaned up, it must have enough money available to pay for
cleanup activities as they become necessary. Money should also be available to respond to
emergencies and to pay 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
vary depending 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 at sites for which the State expected
22
-------
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 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 $1M. Thus, for most States, particularly those with multiple sites needing
permanent remedies, a fund of more than $1M would be needed to preserve the option of
conducting a State-funded remedial action at a site while maintaining the ability to respond
to emergencies. Some States have considerably less than $1M available, which restricts their
response capability. Typically they have only been able to pay for emergency response and
removal actions.
Fifty 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 30,1995 for most States), how much money was added to the
fund during the fiscal year, how much was spent from the fund during the fiscal year, and
how much was 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 mat may be used solely to clean up spills of oil
or petroleum products.
Twenty-one States have more man one fund for cleaning up sites contaminated by
hazardous substances. This is a decrease of one since 1993 but is three more than 1991 and is
six more than in 1969. States have more than one fund for a variety of reasons. A State may
have multiple funds in order 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 S150K and excess penalties are
23
-------
deposited in the Remedial Action Trust Fund). States also may have multiple funds because
they separate the uses to which their funds may be put Thus, Ohio has both a 503
(Hazardous Waste Facility Management) Fund, which may be used for emergency response
and the State's share of NPL remedial actions (CERCLA match), in addition to its primary
RCRA-reiated purposes, and a 505 (Hazardous Waste Cleanup) Fund that may be used for
all other non-NPL related cleanup activities.
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), fees (F), taxes (T), interest (I), penalties
(P), transfers from other State funds (TR), cost recovery (CR), private funds (PF), and other
(O). The activities for which a State is authorized to use a fund are listed in Table V-10, and
include site investigation (SI), emergency response (ER), removals (RM), CERCLA match
(CM), studies and design (SD), remedial actions (RA), operation and maintenance (OM),
grants to local governments (LG), natural resource restoration (NR), program administration
(AD), victim compensation (VQ, 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 30,000 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.
Fund Balances and Additions
Analysis of fund balances at the end of a State's fiscal year and the amount of money
a State has added to the fund during the past fiscal year provides 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 the additions to the fund, which
serve as a measure of the State's immediate past capability to sustain the fund. It also
provides a sense of the State's potential to maintain and increase the fund in the future.
However, 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:
24
-------
1. Fiscal year-end balances could not be obtained for all funds or all States —
Maryland and Wyoming provided no balance information, Florida did not
provide a balance for one of its two funds, and Montana provided no balance
for three of its four 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.
j ,
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.
4. A portion of a State's fund balance may be obligated for future work on sites
currently 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.
With these caveats, the total of the balances, including bond authorizations, for all the
States' funds is $1.46B, down slightly (4%) from $1.52B in 1993 and continuing the trend of
declining total funds available for cleanup since 1990. 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 very few States. In 1995, the bonding authority available in three States (Michigan, New
jersey, and New York) totalled $845.6M, which was 58% of the $1.46B total fund balance
available to the States at the end of Fiscal Year 1995. The total bonding authority specifically
identified by all States was $855.9M (including Maine and California) and the non-bond fund
balance total is $609M, an increase of S52.8M from the comparable figure of $556.2M in 1993,
when Massachusetts, Michigan, New York, and Wisconsin were the States with outstanding
bonding authority. This increase reverses a trend of declining non-bond fund balances since
1990. Since 1989, the aggregate State fund balances including and excluding bond
authorizations have been as follows:
Year Balance including bonds % Change Balance excluding bonds % Change
1989 $2,396.0M $415.0M
1990 $2,428.4M +1.4% $699.4M +68.5%
1991 $2,218.5M -8.6% S603.7M . -13.7%
1993 $1,523.4M -31.3% $556.2M -7.9%
1995 $1,464.9M -3.8% $609.0M +9.5%
25
-------
The principal reason for the decline in State balances including bonds is declining
amounts of bonding authority available in the few States that have authorized large amounts
of bonds. In 1995 five States had bond authorizations totalling $855.9M, compared to
$%7.2M in 1993, $1614.8M in 1991, 51729.2M in 1990, and $1981M in 1989. As this
comparison shows, 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. Massachusetts, Michigan, Wisconsin, Montana, and New
Hampshire all appear to have spent virtually all of their initial bond authorizations. New
York is the most dramatic example in that the balance in its bond fund has declined from
$1.2B in 1989 to $1.06B in 1990, $973M in 1991, $902.7M in 1993, and $594M in 1995. Perhaps
more important is that New York staff have noted that they have identified specific sites and
projects on which to spend the entire remaining balance in the bond fund and that they
expect it to be depleted by the end of Fiscal Year 1997. Furthermore, since 1991 Maine
appears to be the only State to have authorized new bonds to be issued, although the New
Jersey legislature is considering a bill to authorize $450M in bonds to be used for cleanup.
Most of New Jersey's proposed bonds would, however, be earmarked for specific non-
superfund related projects, with as little as $75M available for the State cleanup program.
The distribution of fund balances among the States shows a continuing trend away
from very small balances, as six States have balances (including bond authorizations) of less
than $1M, with two of those (Nebraska and the District of Columbia) having no fund at all,
compared to nine in 1993 and 13 in 1991 (this year two States, Maryland and Wyoming,
provided no fund information). Twenty-one States have balances from $1M up to $5M (15 in
1993 and 14 in 1991), eight States have balances from $5M to $10M (down from 11 in 1993,
but still higher than the 5 in 1991), eight States have balances from $10M to $50M (down
from 12 in 1993 and 14 in 1991), and seven States have balances of $50M or more (up from
three in 1993 and four in 1991). As was the case in 1993, most States have fund balances from
$1M up to $10M - 29 of 50 States reporting balances in 1995 compared to 26 of 50 in 1993.
One notable development is that more States man ever before have fund balances of $50M or
more, with Indiana, Michigan, California, and Alaska moving into that category in 1995
(though Alaska did not provide a balance in 1993).
The total amount of money in fund balances, however, continues to be concentrated
in a few States. The seven States with fund balances (including bonds) exceeding $50M have
$1178.07M or 80.4% of the total State superfund balance, compared to S1127.4M (74% of total
balance) in three States with balances of $50M or more in 1993, and 84% in 1991. Moreover,
the 15 States with fund balances of at least $10M have $1362.51 M or 93% of the total
available to all States, the same percentage as in 1993. This is a slight decline from prior
years when the funds with balances of $10M or more (including bonds) comprised 96%
(1991), 97% (1990), and 96% (1989) of the total State fund balance.
26
-------
Contributions to State funds have varied widely since the first 50-State Study in 1989.
Forty-six States (of 50 with funds) added $444.58M to their funds during fiscal year 1995.
This is less than half of the $957.3M added to the cleanup funds in 46 States during fiscal
year 1993. But it is more than the $381.6M added by 36 States reporting additions in 1991.
This year California did not provide information about additions to its funds during the
year, which is notable because it added $107M to its Hazardous Waste Control Account in
1993 and $50M in 1991.
Much of the variability in annual infusions to State funds can be attributed to New
Jersey, where annual additions in 1995 were S64.7M compared to S350.1M in 1993 and
$19.4M in 1991. The variability in New Jersey's additions is largely attributable to changes in
the amounts being added to its Bond Fund, which received $8.5M in 1995 compared to
$239.5M in 1993 (presumably from the sale of bonds) and $0 in 1991.
Other States have also experienced substantial changes in the amounts added to their
funds during different years. Texas went from $20M added in 1991 to $112.3M in 1993 and
down to S47.4M in 1995. Similarly, Florida's additions increased from $13.7M in 1991 to
$25M in 1993 and then back down to only $1.5M in 1995. California's additions went from
$50M in 1991 to $107M in 1993, but then the State provided no information for 1995. On the
other hand, Pennsylvania's additions decreased from $89M in 1991 to $45.6M in 1993 and
then increased slightly to $51M in 1995. In 1991 Alaska estimated that annual additions
could be as much as $50M, then in 1993 it did not report any amount but reported mat
$15.2M was added in 1995.
As with fund balances, only a few States account for most of the amounts added to
State funds, with four adding more than $50M in 1995, compared with five in 1993 and one
in 1991. The additions in these four States (New Jersey, Michigan, New York, and
Pennsylvania) totalled $229.3M or 51.6% of the total added to State funds by all States. Thus,
the aggregate of additions by States is less dominated by the few largest States than in the
case of fund balances. In addition, six States reported additions to their funds in the range
from $10M to $50M in 1995, one fewer than were in this category in 1993 and 1991. At the
other end of the scale, 14 States reported adding less than $1M to their funds in 1995,
continuing an upward trend (toward lower additions) in this category from 10 in 1993 and
nine in 1991.
Source* 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. Nine
specific types of sources are listed, including appropriations from the legislature, bonds, fees
charged for hazardous waste or other activities, taxes, interest on fund or other State
investments, penalties or fines, transfers from other funds or accounts, cost recovery, and
private funds, plus a final category for other sources.
27
-------
Eighty-four 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-three States rely on such fees to contribute more than 20% of the
revenues for their funds. This is two fewer States having fees as a significant contributor to
their funds than in 1993, reversing a trend of slight increases in the number of such States
each year since 1989, when 19 States relied on fees as a significant source of cleanup funding.
Because hazardous waste fees are such 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 $3M - $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, which make up 90% of its Fund, 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 mat sets the hazardous waste fee structure to set the fees at levels (within
a statutory range) mat encourage recycling and discourage land disposal.
Taxes are a significant source of revenue for 17 funds in 15 States, increased from 11
funds in 10 States in 1993. Several States impose a tax on hazardous wastes or substances
mat 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 meet the need. Taxes on
28
-------
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.
Bonds provide significant funding for 16 funds in 12 States. In 1986, the New York
legislature authorized the State to sell S1.2B in bonds to pay for cleaning up contaminated
sites, $100M of which has since been redirected to cleaning up nonhazardous waste landfills.
The State began selling the bonds in 1989 and has S594M in bonding authority remaining.
This is a substantial reduction in remaining bond authority since 1993 when the bond
balance was $902,7M. 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's bond
fund currently contains $86M after $8.5M was added to it in fiscal year 1995. But over the
years New Jersey has generated hundreds of millions of dollars for its cleanup program from
the sale of bonds, adding S239.5M to its Bond Fund in 1993, for example. Similarly, Michigan
added $62M in bond revenues to its Bond Fund in 1995, which had a balance of $165M at the
end of the fiscal year. Other States, like New Hampshire, have exhausted their authority to
issue bonds and must look for other sources of revenue for the future. Maine may be the only
State since 1991 to have authorized new "bonds to be issued, having authorized $4M in bonds
for 1996 after authorizing a similar amount in 1995.
Appropriations are also a primary source of funding for State cleanup funds. They
provide more than 20% of the funds for 13 funds in 13 States, a decrease from 21 funds in 17
States in 1993, and are a minor source of funding in an additional eight States, which is
unchanged from 1993. Some States appropriate money to their cleanup funds on a regular
basis, which allows the State agency flexibility in handling cleanups. However, 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 hind is
small or the additions to it are small. Thus, in only a few States did appropriations provide
more than $1M in additions to the fund during fiscal year 1995.
Penalties and fines provide more than 20% of the revenue for 16 funds in 14 States,
but many of the funds for which penalties are a significant source are quite small. Penalties,
in fact, rarely provide revenues of the magnitude needed to conduct remedial actions (i.e., on
the order of $1M). Penalties are also minor sources of funding for an additional 21 States.
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 by 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 fiscal year 1995.
29
-------
Refinements were made to the fund expenditure measure for the 1993 update and
retained for mis 1995 update. These changes were intended to better describe States'
capabilities to clean up non-NPL contaminated sites, which are the focus of this study.
Therefore, 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. New Hampshire, Maryland, West Virginia, and Wyoming provided no
information on expenditures or obligations and Connecticut and Michigan provided no
information about expenditures, but could supply information about obligations. Most States
also were able to segregate 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 more spotty than for total expenditures. Some States do not monitor or record
amounts obligated to be spent on specific sites in the future. A number of States that each
spent millions of dollars on cleanups did not segregate the amounts spent on non-NPL and
NPL sites. These included Alaska, New Jersey (one fund), New York (one fund that spent
$49M), Ohio, Oregon, Texas (one fund that spent S28.6M), and Washington (one fund that
spent $29M). Nevertheless, it is possible to use the 1993 and 1995 spending data to explore
the States' capabilities to clean up non-NPL sites.
In 1995,44 States reported spending a total of $386.1M and 38 States reported
obligating 5363.4M to be spent in the future, with some States reporting one figure but not
the other. Thirty-seven States also reported spending $203.02M on non-NPL sites and 32
States reported spending $19.57M on NPL sites in 1995, though 12 of the 32 spent $0.
By comparison, in 1993,46 States reported spending a total of $711.7M and 36 States
obligated S459.3M from their funds. In addition, 37 States reported expenditures of $149M
on non-NPL sites in 1993 (seven States actually spent $0). A slightly different group of 37
States reported spending $166.3M for NPL sites in 1993, although only two States, Texas and
New York, accounted for $144M (87%) of that total.
For 1995, States reported spending only slightly more than one half the total amount
reported for 1993 (54%), but the 1995 total reported for spending on non-NPL sites was 36%
higher than 1993. The reduction in total spending by the States is largely attributable to
substantially lower spending by a few States, including California ($14.4M in 1995 compared
to $88.6M in 1993), Texas ($28.6M in 1995 compared to $132M in 1993), and New Jersey
(S37.6M in 1995 compared to S188.5M in 1993), which declined by $328.5M in the aggregate.
Only New York increased its overall spending by more than $10M, but its $16.5M increase
(15% more than 1993) was small compared to the decreased spending in New Jersey, Texas
and California.
As in 1993, most States (31 of 44 reporting) spent less than $5M on all sites in 1995,
and a substantial number of those (15) spent less than $1M. In addition, five States spent at
least $5M but less than $10M, six States spent at least $10M but less than $50M, and two
States spent $50M or more, with only New York spending more than $100M. In 1993, 20
30
-------
States spent less than $1M, nine States spent at least $1M but less than $5M, five States spent
at least $5M but less than $10M, six States spent at least $10M but less than $50M, and four
States spent more than $50M, with three spending more than $100M.
In contrast to the substantial decrease in overall spending, the reported spending on
non-NPL sites rose by 36% from $148.96M in 1993 to S203.02M in 1995. This change also may
be explained by substantial changes in a few States. In 1993, New Jersey did not report how
its total spending had been allocated between non-NPL and NPL sites, but in 1995 it
reported that virtually all (98%) of its S29.6M expenditures went to non-NPL sites. In
addition, New York reversed its spending from primarily NPL sites in 1993 (S59.8M
compared to $1.1M for non-NPL sites) to virtually entirely non-NPL sites in 1995 ($79.4M
compared to $0.1M on NPL sites). These shifts to spending on non-NPL sites were somewhat
offset, however, by a change in reporting by Texas, which spent $47.8M on non-NPL sites in
1993 but did not provide a breakdown for NPL versus non-NPL spending in 1995.
As is the case with fund balances, the majority of the total spent by States on non-NPL
sites is accounted for by a few States. Three States account for 66% ($133.5M) of the total
spent by the States on non-NPL sites in 1995: New York spent $79.4M on non-NPL sites (39%
of total State spending); New Jersey spent $29.04M; and Washington spent $25.05M. At the
other end of the scale, 16 States reported spending less than $1M, and seven of those spent
less than $100K, on non-NPL sites.
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 fund ($51M) than the total of its
expenditures and obligations ($39M) and its balance continues to grow (from $21.8M in 1991
to $60.5M in 1993 to $75M in 1995) indicating that the State is expanding its capacity,
presumably in anticipation of paying for more expensive remedial actions. Other States
whose additions substantially exceeded their expenditures and obligations included Georgia
(S11.5M added in 1995, expenditures and obligations of $7.4M, balance rose from $8.3M in
1993 to $13M in 1995), Indiana (balance in HSRTF rose from $9.8M in 1993 to S27.5M in 1995,
with expenditures and obligations of $149M in 1995 but additions not reported), and Ohio
(505 remedial action fund had $25.4M in additions, $12.8M spent and obligated, and balance
remaining stable ($13.3M in 1993 and $13.8M in 1995)).
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.
Massachusetts, like Michigan, New Jersey, and New York, has had a relatively large amount
in authorized bonds ($89M initially) from which it has funded its program since the late
1980s. But the State added no money to the bond fund in 1991,1993, or 1995, so the balance
has been steadily declining. Thus, with obligations exceeding $10M and the bond fund
balance now down to $2.5M (compared to $22M in 1993), it appears mat the State must find
other sources of funds just to complete the work to which it is already committed.
Other States that also appear to be spending down their fund balances include:
Connecticut (balance declined from S21.78M in 1993 to S10.58M in 1995, additions exceeding
obligations by only $1M), New Jersey (1993 balance of $161.5 declined to $136.7M in 1995,
expenditures and obligations of $100.1 M exceed additions of $64.7M), New York (balance of
31
-------
S599.1M is $306.3M less than 1993, expenditures and obligations of S252.9M exceed
additions of S51.6M), Kentucky (balance declined from $5M in 1993 to S1.77M in 1995, and
expenditures and obligations of $4M exceed additions of S2.78M), and Washington (balance
declined from S46.3M in 1993 to S28.5M in 1995, and expenditures and obligations of $73M
exceed additions of S46.5M).
Uses of Funds
Table V-10 lists the activities on which States are authorized to spend fund monies.
These activities are grouped into nine categories: site investigation (SI), emergency response
(ER), removals (RM), studies and design (SD), remedial actions (RA), operation and
maintenance (O&M), natural resource restoration (NR), CERCLA matching cost share for
NPL sites (CM), program administration (AD), grants to local governments (LG), victim
compensation (VQ, 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 is not authorized to pay for
emergency responses; only Virginia and Wyoming may not pay for removals. Although
virtually all States remain authorized to spend fund moneys on these short-term actions,
there were changes in a few States: Connecticut now reports being authorized to use its
funds for emergency response; Virginia reports it is no longer authorized to use its fund for
removals while Colorado is now able to fund removals.
The vast majority of States also may use their funds to pay for remedial actions, or
more permanent cleanups. Only Mississippi, Oklahoma, Colorado, Utah, Wyoming and
Idaho, of the States with funds, may not use the money to pay for remedial actions.
Interestingly, all of these States, with the exception of Wyoming (which did not provided
financial information), have fund balances exceeding $1M, and thus likely would have
sufficient resources to pay for a cleanup at a non-NPL site. Also notable is that, except for
Mississippi, these are all western States.
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
studies and design (44 States, no change from 1993), operation and maintenance (41 States, 2
more titan 1993), and program administration (40 States, 2 more than 1993). Most States (43,
2 fewer than 1993) also are authorized to use their funds to pay the required State share of
remedial actions at NPL sites.
Other uses are far less common. Only 15 States may use their funds to pay for
restoration of natural resources that may have been damaged by releases of hazardous
substances. This does not mean mat other States are not authorized to restore natural
resources. A number of States do so under other programs, particularly through separate
natural resource management agencies. Only 4 States, Rhode Island, Vermont, New Jersey,
32
-------
and Minnesota, report being authorized to use their funds to compensate victims harmed by
releases of hazardous substances.
The primary purpose of some States' funds is not cleanup of sites contaminated by
hazardous substances. Ohio's '503 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.
Some States that have funds authorized to be used for cleanup activities are limited in
practice by very low funding levels. North Dakota's fund balance was only $129K and it
received no new money for the fund in 1995. It is not surprising then that it spent no money
on cleanup activities — it had no real financial capability to do so. Alabama's financial
situation was only slightly better, as its fund balance was $478K but a comparable amount
was added to its fund during the year and it was able to spend $324K on non-NPL sites
during the year. The low levels of funds available in these States restricts them to small-scale
actions, such as emergency removals of drums.
Some States, on the other hand, spent very little on cleaning up non-NPL sites even
though they had money available. North Carolina, with a total fund balance of S7.8M, had
perhaps foe largest discrepancy between apparent financial capability and spending, since it
spent less than $54K on non-NPL sites. Virginia, Louisiana, New Mexico, Oklahoma, Iowa,
South Dakota, Utah, and Idaho all had fund balances exceeding $1M (only Utah's balance
exceeded $5M), but spent less than $200K on non-NPL sites. Georgia, on the other hand, has
moved out of this category, as it had a Fund balance of $13M at the end of fiscal year 1995,
spent S2.5M and obligated another S4.9M.
33
-------
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 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
S30K.
In six States, the agency must obtain prior legislative approval for some types of
expenditures. Washington requires that any expenditure from its State or Local Toxic
Control Account first be appropriated by statute. Oklahoma requires a site-specific appropri-
ation whenever site costs are expected to exceed $1M; Illinois must get a similar appro-
priation 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, non-
emergency expenditures over $50K must be approved by the legislature or its joint fiscal
committee. 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.
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 of cleanup goals increases, the costs of cleanup also increase. A larger proportion
34
-------
of State superfund program hinds 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 use 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.
Table V-ll indicates a number of criteria, including promulgated cleanup standards,
water quality criteria, maximum contaminant levels (MCLs) or maximum contaminant level
goals (MCLGs), background levels, risk assessment, EPA guidelines, groundwater standards
and soil standards that are used by States to determine cleanup levels at hazardous sites.
Since 1993, a substantial increase in the total number of criteria used by States is noticeable.
Forty-three States, an increase of nine since 1993, report the use of EPA guidelines for
cleanup standard selection. A total of 50 States apply MCLs or MCLGs when relevant Forty-
nine States, up by six since 1993, apply water quality criteria. Forty-three States report the
use of background levels to determine cleanup levels. Twenty-four States, an increase of five,
report having promulgated standards used to determine cleanup levels. In all, 45 States
employ the use of health-based risk assessment The majority of these States use carcinogenic
risk levels of 10*1 to 10* and a Hazard Index * 1. Thirty-seven States report the use of
groundwater standards and 27 use soil standards for determining cleanup levels. The
District of Columbia, Delaware, Massachusetts, New Jersey, Puerto Rico, and South Dakota
report the use of all eight listed criteria in determining their cleanup levels and policies.
At least two States in particular report an increase in the number of criteria employed
in establishing cleanup levels since surveyed in 1993. Idaho reported using only EPA
guidelines in 1993. In 1995, water quality criteria, MCLs/ MCLGs, risk assessment and
groundwater standards are all applied in determining cleanup levels. North Carolina now
uses promulgated standards, MCLs/ MCLGs, background levels, and groundwater
standards, in addition to the water quality criteria, risk assessment, and EPA guidelines
reported in 1993. Similarly, the District of Columbia, in addition to applying EPA standards,
now reports using promulgated standards, water quality criteria, MCLs/ MCLGs,
background levels, risk assessment, groundwater standards and soil standards.
In most States, cleanup determinations are made on a case-by-case or site specific
basis, States use different methods to establish standards. New Mexico sets cleanup
standards through a public hearing process. Several States, including Utah, Montana, and
Minnesota, use an ARAR process similar to the CERCLA process, while Arizona
incorporates health-based guidance levels (HBGL) which are unenforceable risk-assessment-
based guidelines which may be used as cleanup levels when a party voluntarily agrees to
use them or EPA adopts them as ARARs. Illinois' cleanup levels are based on a risk-based
tiered approach for the protection of groundwater, and the protection of human health from
35
-------
other exposures. Illinois' 1995 amendments establish a nsk-based system that considers
present and future land use. Three tiers of risk-based remeditation activities will be
established by regulation.
Since 1994, California has been using CalTOX, a multimedia, multiple pathway risk
assessment model that is implemented in a computer spreadsheet. CalTOX relates the
concentration of chemicals in the soil to the risk of an adverse health effect for a person
living or working on or near the contaminated soil. This permits computation of health-
based soil remediation levels given target risk levels or assessment of human health risk
given soil concentrations. CalTOX is available for other States to use. Oklaholma also
recently introduced a computer-based model to determine soil cleanup levels.
In determining cleanup levels, States most often take into consideration public health
and welfare, environmental harm, and the cost effectiveness of cleanup procedures. Several
States have adopted two sets of risk levels which depend on the intended use of the
remediated site. Alabama, Oregon, and Washington differentiate between industrial sites,
which use risk levels of 104, and residential sites, at which levels of 10* are targeted. Oregon,
for example, has adopted numeric standards for soil cleanup of 76 compounds at "simple"
sites. These soil cleanup standards allow greater residual contamination in industrial zones.
Michigan's new cleanup program focuses on land-use-based cleanup criteria for residential,
commercial, and industrial uses. This tiered system starts with established numerical
standards for identified contaminants or allows site-specific risk assessments to determine
cleanup levels. Site-specific institutional controls may be used to achieve the public health
risk goal.
Some States are currently revising their cleanup standards and criteria. Others,
including Vermont, are in the process of developing procedures for determining applicable
cleanup standards on a site-specific basis.
The information provided by the States on cleanup policies and criteria indicates a
widespread maturing of State cleanup programs, as evidenced by the nearly universal
adoption of MCLs, risk assessment, and water quality criteria as cleanup standards. In
addition, there seems to be a consensus developing mat risk assessment should consider
both cancer and non-cancer risks and mat the goals should be 104 to 10* for carcinogens and
a Hazard Index * 1 for non-carcinogens. That 24 States report having promulgated standards
used to determine cleanup standards further indicates a maturing of cleanup programs. The
data for 1995 demonstrates that States are beginning to achieve sufficient experience to be
able to articulate consistent rules, principles and processes for site cleanup.
G. PUBLIC PARTICIPATION
General
The degree of public participation required in decisions about cleanups of hazardous
waste sites varies widely from State to State. Public participation may be required by statute
or regulation, pursued as agency policy, or implemented in response to expressed public
36
-------
concern. Table V-12 describes formal and ad hoc public participation requirements for each
State.
There has been a slight increase in the States' public participation requirements since
1993. Almost every State now reports some sort of public participation requirements or
policy, increased from 45 in 1993 to 51 in 1995. A total of 37 States have statutory or
regulatory requirements for public participation, up from 24 in 1993. Another 14 States solicit
public participation strictly as a matter of policy or on an ad hoc basis.
Some States follow the public participation guidelines contained in the National
Contingency Plan (NCP) through incorporation in State statute or regulation, or as a matter
of policy. The NCP guidelines are the primary source of public participation practices for all
sites in thirteen States: Alaska, Colorado, Idaho, Illinois, Indiana, Kansas, New Jersey, New
Mexico, Ohio, Oklahoma, Puerto Rico, Utah, and Virginia.
Only Kansas reported the development of new public participation regulations
relating to requiring community participation guidelines in contingency plans.
States that have voluntary remediation programs often have public participation
requirements that apply specifically to those programs. In a few cases, these requirements
exceed the public participation requirements of the State's regular cleanup program. For
example, while Indiana's regular cleanup program has no specific public participation
requirements other than adherence to NCP guidelines, the Indiana voluntary remediation
program requires the State to provide public notice of all actions and to conduct a hearing
before approving any workplan. Other States have specific requirements for voluntary
remediation programs. For example, Maryland requires a Community Relations Coordinator
and Montana has a new requirement for notice and comment on proposed voluntary plans.
Some States, for example, North Carolina, reduce public participation requirements in the
case of voluntary remediation. Still other States, such as Virginia, waive all public
participation requirements.
Public Notice Requirements
One of the most important and common public participation practices is notification
of the public at important times during the site handling process. A total of 45 States report
that they provide public notice at some point during site handling. Thirty States have
statutory or regulatory provisions for public notice. Fifteen States provide public notice
according to policy; mis figure includes those States mat provide notice as part of their
adherence to NCP guidelines.
Public notice is usually issued as part of the site listing procedure or when a remedial
action plan is proposed. Some States require notice of other events as well, such as proposed
consent decrees (Delaware, Montana, Washington); settlement agreement revisions
(Delaware, Oregon); administrative orders (Montana); compliance orders, enforcement
orders, and notices of violation (Washington); corrective actions (Vermont); emergency
orders (Mississippi); State enforced cleanups (North Carolina); remedy selection (Texas);
37
-------
applications for certain permits for response actions (Massachusetts); and voluntary
remedial action plans (North Carolina).
In general, notice is required to the public, but some States also require notice to
specific groups. For example, Connecticut, Massachusetts, Mississippi, Montana, New
Hampshire, and North Dakota require notice to local government officials. Other States
require notice to those most likely to be affected by the site listing or remedial action. For
example, Vermont requires notice to municipalities when the sites are within their borders,
while New York requires notice to adjacent property owners and town and county clerks
concerning site registry changes. In North Carolina, under the requirements concerning
voluntary remedial action plans, notice is given to those who request to be on a mailing list
In New York, contact lists of interested persons are developed under public participation
plans and these contact lists are used for notice.
The States also have a variety of methods of notifying the public. New York uses
mass mailings for this purpose, while Mississippi uses direct mailings. Some States,
including Alabama, Missouri, Nebraska, and Morth Carolina place announcements in local
newspapers and on radio.
Public Comments
A total of 44 States solicit comments from the public during the site handling process.
Thirty States have statutory provisions for public comments. Fourteen States solicit public
comments according to policy; this figure includes those States that provide an opportunity
for public comment as part of their adherence to NCP guidelines.
A standard comment period of between 30 and 90 days applies in some States,
including Alabama, Arizona, Nebraska, New York, Oregon, Pennsylvania, and Wisconsin. In
most States, comments are solicited on proposed remedial action plans, but occasionally also
on other decisions, such as whether to list a site. For example, Louisiana requires that
settlement agreements be available for comment
Public Meetings/Hearings
A total of 45 States have provisions for public meetings or hearings during the site
handling process. Twenty-five States have statutory requirements for meetings or hearings.
Twenty States have discretion to hold meetings as a matter of policy; mis figure includes
those States mat may hold meetings as part of their adherence to NCP guidelines.
The impetus for holding public meetings differ from State to State, hr some States, like
California, Kentucky, Ohio, and Pennsylvania, public meetings or hearings during the site
handling process are required or, at least, standard practice. In other States, including
Arizona and North Carolina, meetings are discretionary. Kansas requires public meetings
when contamination migrates beyond property boundaries; while meetings for on-site
38
-------
contamination are optional. Oregon and Wisconsin hold meetings upon citizen petition.
Montana holds meetings at the request of local government officials.
Examples of proposed events and decisions which can require public meetings are
consent decrees (Washington), enforcement cleanups (North Carolina, New Hampshire),
major cleanup milestones (Arkansas), proposed remedial actions (Oregon, California,
Louisiana, Mississippi), update of the State priority list (Michigan), and after the RI/FS to
explain the proposed plan and ROD (Tennessee, Minnesota).
Some States conduct less formal outreach by meeting with citizens on an individual
basis. State officials in Alaska and Florida sometimes perform door-to-door outreach.
Minnesota officials meet with citizens in their homes.
Document Availability
In addition to providing public notice, many States make information available to the
public in more passive ways. A total of 45 States have provisions for document availability
during the site handling process. Thirty-four States have statutory or regulatory
requirements for document availability. Twelve States have discretion to make documents
available as a matter of policy.
Several States, including Kentucky, New York, and Ohio, maintain information
repositories like those required by the NCP. Massachusetts permits site inspections by the
public. Vermont requires that hazardous waste and UST sites be explicitly identified in land
records maintained by local governments and made available to the public. Wisconsin makes
its files available to the public with limited confidentiality. Nebraska requires that proposed
remedial action plans be placed in local libraries. Public education programs are
implemented in Hawaii and Nevada.
Grant*
A few States provide grants for public participation. Massachusetts, Pennsylvania,
and Washington have statutory provisions for grant-making, while Kentucky and Oklahoma
may issue grants as a matter of policy. For example, Massachusetts may give technical
assistance grants to assist in public participation, similar to the federal Technical Assistance
Grants under CERCLA. Washington is authorized to give grants to affected persons or to
non-profit public interest organizations to assist with participation.
Some States provide more informal assistance. Iowa, for example, provides technical
assistance to local governments and citizens for the purpose of participating in the cleanup
process at a particular site.
39
-------
Public Participation Plans
In some States, a public participation plan similar to that outlined in the NCP may be
adopted by States to lend a more formal structure to public participation activities. Under
such a program, a spokesperson may be designated to inform, solicit views of, and respond
to, inquiries from local residents, local government officials, or other agencies regarding
conditions and activities at hazardous waste cleanup sites.
Several States report the use of public participation plans. Kansas includes guidelines
on community participation in its contingency plan. Louisiana prepares community relations
programs at complex sites, which include provisions for public meetings and fact sheets. Fact
sheets, as a public communication tool, are used in Minnesota, Illinois, and Connecticut.
Maryland requires that consent orders include a community involvement section.
Massachusetts prepares a public involvement plan upon the petition of at least 10 citizens,
which is to be implemented by the person conducting the response action. New York has a
statutory requirement for citizen participation programs to be developed by the Department
of Environmental Conservation at the start of the RI/FS that includes 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. Washington requires
early planning and development of a site-specific public participation plan.
Public Relations Coordinators
A number of States indicate that they assign public relations personnel to their
cleanup sites, in general as need requires, especially for areas where the citizenry is
interested or where the case is complex and of public interest Only Minnesota assigns each
site a public information officer by policy. In most States, use of a community relations
coordinator is discretionary. For example, Pennsylvania and Illinois assign community
relations coordinators on an ad hoc basis, based on local need; Louisiana assigns a
community relations coordinator for complex sites; and Maryland uses public relations
personnel for sites where mere is a consent order. The purpose of the coordinator is usually
to emphasize direct contact with interested members of the public in small groups or one-to-
one situations.
Advisory Groups
Many States' cleanup programs are assisted by groups of citizens and private sector
representatives acting in an advisory capacity. These groups provide input on site handling
decisions and changes to cleanup programs.
Advisory groups can be established State institutions. For example, New Jersey's Site
Remediation Program Advisory Group consists of representatives of industrial, banking, real
estate, consulting, and environmental groups, and assists the State with program refinements
40
-------
and operations. New York's State Superfund Management Board includes environmental
group and citizen representatives. The Alaska legislature has established a Citizens'
Oversight Council on Oil and Hazardous Substances. Washington makes use of regional
citizen advisory committees established by the State Department of Ecology.
In addition, some State cleanup programs provide for the use of citizen advisory
panels under certain circumstances. For example, Nevada provides for ad hoc use of citizen
advisory groups. Colorado makes increasing use of technical and non-technical advisory
groups for input on decisions and future land uses. Minnesota consults with community
action groups. Alaska usually establishes a citizen advisory panel for major cleanups, while
Wyoming uses citizen committees at significant sites. Utah has a policy of establishing a
citizen advisory panel for large voluntary agreements.
H. ENFORCEMENT
State hazardous substance cleanup laws frequently contain enforcement provisions.
Enforcement authorities under State laws vary significantly. Many of the States with cleanup
fund laws have enforcement provisions in those laws; many of these provisions 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 See Chapter VI.
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 mat CERCLA does - owners,
operators, generators, transporters, etc.
A few States have more difficulty reaching beyond owners and operators of disposal
sites. For example, States mat 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 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.
41
-------
Retroactivity
A new issue covered in this study is the "retroactivity" of the liability imposed by
State cleanup statutes. This has become a topic of concern in the Congress as reauthonzation
of CERCLA is debated. CERCLA imposes liability for disposal and other actions that
occurred prior to the date CERCLA was enacted.
In order to avoid any confusion of State liability with federal liability standards, ELI
asked a precise question: "Can your State program impose liability under State law for
cleanup of hazardous substances disposed of before the date the program was enacted?" 43
States impose retroactive liability (Table V-13).
Only the District of Columbia, Virginia, West Virginia, Nebraska, Colorado, Utah,
Wyoming, California, and Idaho cannot impose retroactive liability using State cleanup laws.
Colorado and California have aggressively used the federal law on such sites.
Liability Standards
In most cases, 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 In
general, however, this study shows that the vast majority of liability schemes under State
programs (34) have followed the federal model of "strict, joint and several" liability, which
was itself borrowed from New Jersey.
It should be noted that this study and its prior updates have reflected changes in the
liability standards where statutory language is subject to more than one interpretation. The
study methodology, consistent since the original 1989 study, uses the information about
liability standards provided by the States themselves, with ELI's own verification against the
statutory language to assure that the States' asserted standards were consistent with the
language of their statutes. Thus, for example, New York in 1993 and currently is shown as
having a standard of "strict; joint and several* rather than "other" as in the 1991 and previous
reports. This is based on New York regulations adopted in 1992 that clarified the State's
interpretation of its law. Ohio's standard is now shown as "strict, joint and several", rather
than as "not specified" as in the 1993 update, because of its Attorney General's interpretation
of the statute whkh is silent on the standard.
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
42
-------
liability is to be allocated. Is liability joint and several, proportional, or some combination of
both? This is the allocation standard.
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 States have strict liability standards (Table V-13). One of these States is
Wisconsin, which has two cleanup statutes - one with strict liability and one without The
remaining States either do not specify liability standards, lack an enforcement statute, or
require proof of fault (e.g., Virginia, where the State must show that waste has been
"improperly managed.")
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 man one
party causes harm. It is used in the federal CERCLA program. The joint and several Liability
standard means mat 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 mat 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 men 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
43
-------
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 to 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
for 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, 37 States use joint and several liability as the allocation
standard (Table V-13); of these, all but Oklahoma, North Dakota, and Wyoming are also
strict liability States. Six of the 37 joint and several liability States specifically allow
responsible parties an opportunity to prove a divisible apportionment (Arkansas, Louisiana,
Maryland, North Dakota, Texas, and Vermont). In these States, while liability begins with a
joint and several presumption, the opportunity to prove a divisible share is afforded. The
standard for divisibility is usually more generous than that under the common law. Two
other States of the 37 provide for proportionality in very limited circumstances. Wisconsin
uses joint and several liability except in cases where the site is owned or operated by a
municipality; in these instances, apportionment is used. 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.
Only five States have laws that specify proportional liability as the applicable
standard (Alabama, California, Illinois, Tennessee, and Utah). Illinois repealed its former
strict, joint and several liability standard in 1995 and enacted a fault-based, proportional
liability scheme. No standards for allocating liability are specified in 10 States. States where
mere is no allocation standard may be able to avail themselves of joint and several liability
as a common law doctrine.
Enforcement Tool*
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 ground water protection law, or a general
imminent endangennent 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.
44
-------
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 the Commonwealth'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 substanhal 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-14). Recovery of
treble damages is authorized in 22 States; one State authorizes double damages; and two
States authorize recovery of IVi times remediation costs as damages. Louisiana's statute has
two standards. It provides for the recovery of treble damages by the State from non-
cooperating responsible parties, but it also provides that participating PRPs can recover
double damages from non-participating 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 mis incentive depends upon the credibility of the State's threat to spend fund
monies. The enforcement leverage is minimal to non-existent in those States where die 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
45
-------
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 (NRO) programs. Twenty-eight States have independent authority under State laws
to recover NRDs for hazardous substance sites (See Table V-15). Both these and other States
have actively sought to recover NRDs under federal CERCLA authority (See Table V-16). 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.
Only eight States reported having recovered NRDs under State law for contaminated
sites. Seven States reported having such claims currently pending under State law. The latter
group includes three States that have not previously recovered such damages.
Thirteen States reported having recovered NRDs under CERCLA. Eleven have
federal CERCLA NRD claims pending. (Table V-16). Colorado built much of its early State
cleanup program around federal CERCLA NRD claims. Other States are beginning to make
greater use of these authorities, particularly as the federal program matures.
This study also examined the status of actual restoration activities conducted with
NRD awards, although not enough information was received from the States to construct a
table. With only partial responses from the States, the following information was
determined: States reported at least 33 restoration activities underway using recovered
NRDs, and at least 27 restoration activities entirely completed with such funds. Although
dollar amounts were not available for all of the actions reported, nearly $70M in natural
resource restoration expenditures were noted.
Properly Transfer Provisions
Property transfer provisions are "laws, regulations, or policies mat 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
46
-------
hazardous substances on a site; others require site investigations, and deed recordations;
some even require site cleanup as a condition of the transfer.
An increasing number of States have adopted property transfer provisions; 25 States
report that they have property transfer provisions, up from 23 in 1993 and 18 in 1991 (Table
V-17). States that simply maintain a database of contaminated sites are also shown on Table
V-17, but are not counted in this total unless they also have some other property transfer
provisions. States that have property transfer provisions only in their voluntary cleanup
programs (such as Ohio and Wisconsin) are also not included in this total.
Seventeen States have provisions that require deed recordations where hazardous
sites have been either 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. Deed recordation is required in Ohio only where a voluntary
cleanup results in less than full removal of the hazardous substances. 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
Sixteen States require disclosure by sellers to purchasers. Some of these States
explicitly require sellers to examine their property; in others, the obligation 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 classes of industrial properties. In
California, any owner of a nonresidential real property interest who knows, or has reason to
believe mat 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.
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. 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
47
-------
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.
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 which is used for manufacture, import, or use of hazardous
materials above a statutory threshold or which 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.
In Minnesota, there is both a recordation requirement (limited to hazardous waste
facilities or extensive contamination by release of a hazardous substance) and a State-
assisted program to assist transferee in determining whether a property has had a release.
Missouri law requires disclosure, but only for sites on the State's registry.
Two 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 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. It too 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.
Fifteen States 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.
Superiiens
Although not shown on a table, the study also assessed the use of superliens for 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 in order to give the transferee clear title to
48
-------
the property. A great many States that have cleanup funds have authority to impose liens on
the cleaned-up property in order 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
property would have been worthless; therefore, the State should recoup its expenses before
any others benefit Seven States — Arkansas, Connecticut, Louisiana, Maine, Massachusetts,
New Hampshire, and New Jersey 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 Hens 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.
49
-------
50
-------
Chapter IV
Voluntary Remediation Programs
A. VOLUNTARY CLEANUP PROGRAMS
Voluntary cleanup programs provide States with an additional tool to address the
28,997 sites identified as needing attention, as well as sites that have not yet been identified.
These programs often provide incentives for private parties to take part and reduce States'
oversight burden. This allows States to concentrate their efforts, and leads to more sites
being addressed in less time.
Tables V-18 and V-19 provide detailed information on State voluntary cleanup
programs. Table V-18 outlines when the States' programs were established, what types of
authority these programs have, the citation for that authority, and the relationship of the
voluntary program to the State CERCLA-type cleanup program. Table V-19 describes
eligibility requirements, program incentives, and funding information.
Thirty-one States have established voluntary cleanup programs. Sixteen States
(Alabama, California, Colorado, Connecticut, Delaware, Missouri, Montana, Nebraska,
Nevada, New York, Ohio, Pennsylvania, Tennessee, Texas, Wisconsin, and Virginia) have
started formal programs since 1993. In addition, implementation of recently passed
voluntary cleanup legislation in Louisiana is pending, and development of a voluntary
cleanup policy is underway in Arkansas. Several other States regularly negotiate private
party cleanups on a site-by-site basis without a formal voluntary program. Every State in
Region V has a voluntary program, as do the bulk of States in Regions I and II, and at least
half the States in every other Region.
Authority
States derive authority for their voluntary cleanup programs in four ways: specific
statutory authority; the general authority of the State's hazardous waste laws; regulation;
and guidance or policy. In practice, this ranges from Alabama, which is finalizing a
voluntary cleanup policy under its general program authority, to Minnesota, which has had
specific statutory authority for its program since 1988.
Twenty-two States either have specific statutory authority for their programs, or use
general cleanup authority to establish their programs. Three States (Washington, Rhode
Island, New Jersey) derive their authority from regulations, while five States (New York,
South Carolina, California, Nevada, Oregon) have established their programs through
policy.
51
-------
Administration
In 19 States, the voluntary cleanup programs are integral components of the general
hazardous site cleanup programs. Seven States separate their general cleanup programs
from their CERCLA-type cleanup programs. In Colorado, Nebraska, and Nevada, the
voluntary cleanup program is the only cleanup program for hazardous substance sites. In
Alabama, the program is a multi-program effort of the CERCLA, RCRA, and Groundwater
offices. In Oregon, the program complements its orphan-site and enforcement programs.
Eligibility
There are two approaches to defining eligibility: by the site, and by the nature of the
private party. Twenty-one States determine eligibility by the person or entity applying to
participate in the program. Ten States (Arizona, Maine, Michigan, Minnesota, Montana,
Nebraska, New Jersey, Oregon, Rhode Island, and Texas) allow anyone to participate, while
10 States (Connecticut, Massachusetts, Nevada, New York, North Carolina, Oklahoma, South
Carolina, Utah, Washington, and Wisconsin) limit eligibility to owners of the property,
potential purchasers, or potentially responsible parties. Indiana only allows persons or
entities who are not under a pending enforcement action or emergency condition to
participate. Interestingly, New York and Connecticut specifically mention that municipalities
are eligible to participate.
Twelve States determine eligibility by the type of site to be remediated. Delaware and
Pennsylvania allow all sites into the program. Seven States (Alabama, Colorado, Illinois,
Indiana, Missouri, Ohio, and Virginia), however, do not allow sites into their programs that
fall under the jurisdiction of, or are subject to enforcement actions under, other federal or
State environmental statutes. For example, Virginia allows all sites where remediation is not
mandated pursuant to CERCLA, RCRA (Subtitle C, D, or I)/ the Virginia Waste Management
Act, or the Virginia Water Control Law. In California and Massachusetts, only sites that fall
below a certain threat level are eligible for remediation under the voluntary cleanup
programs.
Connecticut and Texas consider both types of eligibility criteria. In Texas, anyone
may apply to enter the program, but only sites not subject to a permit or order are eligible for
remediation under mis program.
Incentives
Given federal and State hazardous waste laws, private parties have few incentives to
voluntarily remediate hazardous substance sites. Moreover, several disincentives exist, such
as liability, lack of control over the remediation process, and cost In order to create a more
favorable climate for voluntary cleanups, States have attempted to lessen or eliminate the
disincentives.
52
-------
In order to address the questions of liability and State enforcement actions, 20 States
offer some form of legal assurance to participants. Seven States (Delaware, Minnesota, New
York, Pennsylvania, Tennessee, Texas, and Wisconsin) waive liability to one degree or
another. Four States (Arizona, Indiana, Massachusetts, and Rhode Island) employ covenants
not to sue. Three States (Nevada, Texas, and Virginia) certify that no enforcement actions
will be taken against the site. In all cases, however, participants are still federally liable
under CERCLA or RCRA, and may still be subject to federal enforcement actions.
Additionally, most of these States include "reopening" provisions in the agreements that
allow for State action if further contamination is discovered.
Nine States (Colorado, Delaware, Michigan, Montana, Nebraska, New Jersey,
Oregon, Texas, and Utah) issue no further action letters. These letters signify that, according
to the State, no further remediation is required at the site, and most States then remove the
site from their priority list. Indiana, Maine, and Virginia issue "Certificates of Completion."
In Virginia, it is the awarding of these certificate that confers the waiver of liability.
Four States (Connecticut, Illinois, Texas, and Washington) must be responsive to
participants' schedules and deadlines. California, Massachusetts, and Ohio authorize less
State oversight and/or more participant control over the remediation process.
Six States offer financial incentives to entice potential participants. Minnesota, Ohio,
and Pennsylvania provide loans, usually disbursed through State commerce departments,
for site assessment Ohio also provides tax credits to program participants. Arizona and
Tennessee pay for any orphan shares at a site. In addition, North Carolina places a $3M cost
cap for participants on remedial actions.
North Carolina and Oklahoma will not submit any sites in their voluntary cleanup
programs for inclusion on the NPL. California, Michigan, and Tennessee either do not place
their voluntary cleanup sites on their State lists, or remove them from those lists.
Minnesota and Oregon provide participants with technical assistance in the form of
guidance documents and staff review.
Funding
Voluntary cleanup programs rarely use State cleanup funds to finance State oversight
For the most part, States ask the participants to reimburse them for oversight costs, either
directly or in the form of a fee.
Fourteen States (Colorado, Connecticut, Indiana, Maine, Massachusetts, Missouri,
Nebraska, New Jersey, Ohio, Pennsylvania, Tennessee, Texas, Virginia, and Washington)
charge a prescribed fee for participation in the program. Virginia and Washington base the
fee on a percentage of the remediation cost, placing a cap on the fees at $5K and $15K
respectively. Pennsylvania has the lowest set fee at $250, while Nebraska has the highest set
fees with a $5K application fee and a $5K participation fee.
Thirteen States, including some with initial fees, require participants to reimburse the
State for all oversight costs (Alabama, Arizona, California, Delaware, Indiana, Maine,
Minnesota, Missouri, Montana, New York, Oregon, Texas, and Utah). In Delaware, for
53
-------
example, the State collects a $5K deposit, but returns any part of the deposit not expended on
oversight Six States had formulas for calculating State costs, with Texas, Utah, and
Minnesota reporting hourly rate of $60.80, $60, and $70 respectively.
Nine States (Maine, Michigan, Minnesota, North Carolina, Pennsylvania, Rhode
Island, South Carolina, Tennessee, and Utah) use appropriated funds for their programs.
South Carolina and Nevada fund their voluntary cleanup programs though their cleanup
funds. Participants fund the Oklahoma voluntary cleanup program, but the fee is handled on
a case-by-case basis. Wisconsin's program is currently unfunded, but the State is considering
a proposal to collect fees.
Several States use funding from two or more of these sources. For example,
Tennessee charges a $5K fee plus reimbursement of State costs. South Carolina uses both
appropriations and its Hazardous Waste Contingency Fund.
B. BROWNFIELDS PROGRAMS
States have been targeting brownfields, or abandoned industrial sites, through a
variety of means. Tables V-20 and V-21 provide details about brownfields programs run by
the States. Table V-20 shows whether the State reports that it has a formal program, under
what authority the program has been developed (or alternative approaches to dealing with
brownfields if no program exists), and the criteria for including a site in a brownfields
program. Table V-21 presents the number of sites that have been identified by the program;
the number where cleanup is underway, and the number of sites that have commitments for
redevelopment
By the end of FY95,15 States had established formal brownfields programs and eight
others were in the process of developing some sort of program. Five of the 15 States with
programs formally address brownfields through their voluntary cleanup programs. One
such State is Pennsylvania, where all sites are eligible for consideration under the voluntary
approach and an emphasis is placed on "Special Industrial Areas", which are defined as
orphan sites, sites with bankrupt owners, or sites within State-designated enterprise zones.
Five other States which do not target brownfields specifically note that their voluntary
programs cover brownfields issues.
The States in EPA Region V exhibit the greatest degree of brownfields activity with
five of the six States sponsoring formal programs. The number of sites in their programs
exceed those of other regions by an order of magnitude: Minnesota has identified
approximately 700 sites through its Voluntary Investigation and Cleanup Program, and
currently is redeveloping about half of those, many of which are brownfield sites; Illinois has
identified 400-500 sites and is redeveloping almost all of them; Michigan reported 121 site
identifications with activity at 70 sites; and Indiana has identified and begun redevelopment
at 70 sites. Four out of six States in Region I have created brownfields programs. In Region X,
only Oregon has established a program; more than 100 sites have been targeted in its
voluntary cleanup program, many of which are brownfields. On the other end of the
spectrum, no States in Regions IV, VIII, or IX have created formal brownfields programs. In
54
-------
Region IX California and Arizona address these sites through different programs. In Region
VIII, Colorado participates through three EPA pilot sites. One State each in regions II, VI, VII,
and X have developed formal programs, as have two States in Region III. Four States in
Region 4 are in the process of developing programs, and some of them are involved in pilot
initiatives of the EPA.
Of the 15 States with formal brownfields programs, three were unable to estimate the
number of sites that have been identified, acted upon, or committed to redevelopment Four
other States did not have records on how many of the identified sites held commitments for
redevelopment
55
-------
56
-------
Chapter V
#
State Program Tables
57
-------
TABLE V-l
*
Overview of State Programs
SUMMARY
This table provides an overview of four key elements of State cleanup programs:
enforcement authority; staffing level; public participation procedures; and fund balance. This
table provides a useful comparison of State programs when the elements are viewed as
integral parts of each State's program. These elements were not selected for the purpose of
evaluating the effectiveness of State programs. This tabulation of State information provides
a picture of the general programmatic direction and activity levels of State programs. The
table headings are defined as follows:
• "Cleanup Enforcement Authority" indicates whether or not States undertake
enforcement actions under specific hazardous cleanup authority ("Yes"), a
groundwater protection statute ("GW"), a hazardous waste enforcement
statute ("HW"), or a general environmental protection authority ("Gen").
• "Staffing Level" indicates the number of full-time program staff and attorneys
who work on each State program. (Attorneys in both State cleanup programs
and State AG's Offices are included in this figure.) There is a possibility of
double counting, as some States may have counted attorneys who work full-
time on superfund programs as staff.
• "Public Participation Requirements or Policy" indicates whether each State has
statutory or regulatory public participation requirements or follows public
participation procedures as a matter of policy.
• "Fund Balance* lists the balance of each State's cleanup fund at the end of fiscal
year 1995 (FY95). If a State has multiple cleanup funds, this column indicates
the sum of the balances. The balances, which range from zero to over half a
billion dollars, do not signify the extent of cleanup activity on their own. The
fund balance may be small because significant cleanup expenditures were
made during the year, or it may be large because little activity occurred during
the year. A State's balance amount is meaningful only when viewed in
conjunction with the number of actions taken by the State, and as an indicator
of future financial capability.
58
-------
TABLE V-1
OVERVIEW OF STATE PROGRAMS
Region 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
Cleanup
Enforcement
Authority
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Gen
Yes
HW
Yes
Yes
HW
HW.GW
Yes
Yes
Yes
Yes
HW, Gen
Yes
Yes
Yes
Yes
Staffing
Levels
54
20
228
8
31
21
673
307
23
31
23
32
132
18
13
20
64
19
30
15
30
31
66
112
Public Participation
Requirements or Policy
Required and Policy
Policy
Required and Policy
Policy
Required
Policy
Required
Required
None
Required
Policy
Required
Required
None
None
Required
Policy
Required
Required and Policy
Policy
Required
Policy
Required
Required and Policy
Fund
Balance
S10. 575.000
510,537,050
S2. 513.036
S3. '300. 000
52 655
S4. 240. 000
S136.700.000
S599.100.000
52,482. Ill
53.700.000
SO
SO
S75.000.000
52. 575. 861
51,000.000
5478.167
57.000.000
$13,029,281
$1.770.000
$1.325.000
$7,800,000
$18.635.064
$8,036.052
$6,400.000
Yes = Specific Authority Gen. = General environmental protection authority
HW = Hazardous waste authority GW =- Groundwater protection authority
59
-------
TABLE V-1
OVERVIEW OF STATE PROGRAMS
Region State
5 Indiana
Michigan
Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
Cleanup
Enforcement
Authority
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Gen
Yes
Yes
Yes
Yes
GW
GW, HW
Yes
Yes
Yes
Yes
Gen
Yes
Yes
Yes
HW, GW
Staffing
Levels
59
306
104
187
53
10
35
18
17
105
11
106
49
18
29
29
6
4
36
5
26
310
22
14
Public Participation
Requirements or Policy
Policy
Required
Policy
Required and Policy
Required and Policy
Required
Required
Required and Policy
Policy
Required
Policy
Policy
Required
Required
Policy
Required
Policy
Policy
Policy
None
Required
Required
Required
Required
Fund
Balance
550,512. 589
$184.000,000
S2.981.000
$39.560.693
S3. 472. 400
S7. 450. 050
S2.007.883
$1,204.500
$2,096,005
S47.361.124
$1,300.000
$225.000
S5. 300.000
SO
$16.200,000
$1.451,893
$129,000
SI, 750.000
$5,100,000
$0
$1,280.000
$59,400,000
$3,000,000
$1,000.000
Yes * Specific Authority Gen. * General environmental protection authority
HW - Hazardous waste authority GW » Groundwater protection authority
60
-------
TABLE V-l
OVERVIEW OF STATE PROGRAMS
Region State
10 Alaska
Idaho
Oregon
Washington
Cleanup
Enforcement
Authority
Yes
Gen
Yes
Yes
Staffing Public Participation Fund
Levels Requirements or Policy Balance
45
21
99
149
Policy
Policy
Required
Required
S73.356.000
S4. 375. 877
55. 974.000
S28.536.973
Toul: 3874 SI.464.924 264
Yes = Specific Authority Gen. - General environmental protection authority
HW - Hazardous waste authority GW - Groundwater protection authority
61
-------
TABLE V-2
*
Statutory Authorities and Provisions
SUMMARY
Two States have no fund.
Five States have limited fund capabilities, in that their funds can only be used for
emergency responses and/or CERCLA match.
Forty-one States have State superfund laws that provide enforcement authorities.
Eleven States have enforcement authorities only in statutes other than their State
superfund laws.
Thirty States have statutory provisions for a priority list.
Seventeen States report some authority for citizen suits.
Fourteen States provide compensation for victims of hazardous waste releases,
although nine States limit that relief to replacement of water supplies.
Twenty-five States have some mandatory provisions governing property transfers,
and two others have property transfer provisions only in their voluntary cleanup
laws.
Twenty-six States have statutory authorities for voluntary or brownfields cleanup
programs (other States have adopted such programs by regulation or policy).
62
-------
TABLE V-2
STATUTORY AUTHORITIES AND PROVISIONS
Cleanup Enforce Prior Citizen Victim Prop
Reg State
1 CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
Statute
Property Transfer Law
Emergency Spill Response Fund
Public Act 87-561
PA 95-190 (Licensed Environmental Professional
and voluntary program)
Urban Sites Remedial Action Program
An Act to Assist in the Cleanup of Contaminated
Property
Uncontrolled Hazardous Substance Sites Act
Property Transfer Statute
Oil and Hazardous Material Release Prevention and
Response Act
New Hampshire Hazardous Waste Cleanup Fund
Act (HWCF)
Hazardous Waste Management Act
Industrial Property Remediation and Reuse Act
Waste Management Act
Act Relating to Administrative Enforcement of
Specified Environmental Laws
Water Pollution Control Act
Petroleum Cleanup Fund
Industrial Site Recovery Act
Spill Compensation and Control Act
S. 1070
New York State Supertund Act
Environmental Quality Bond Act of 1986
Environmental Conservation Law (Abandoned Sites
Act)
Environmental Emergencies Fund Act, Law 81
Public Policy Environmental Act
Hazardous Substance Cleanup Act
Hazardous Waste Management Act
Ann. Code of Maryland, Environment Article. Title
Fund
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Author List
X
X X
X
X
X X
X
X
X
X
X
X
X
X X
X
X X
X
X X
Suit Comp Trans Cleanup
X X
ws
X
X
X X
X X
XXX
X
X
X
X X
X
WS X
X X
ws
7 Hazardous Materials and Hazardous
Substances
PA Land Recycling and Environmental Remediation
Standards Act
ER: Emergency Response and Removals WS: Water Supplies
CS CERCLA Share 0: Other Statutes
63
-------
TABLE V-2
STATUTORY AUTHORITIES AND PROVISIONS
Cleanup Enforce Prior Citizen Victim Prop Vol
State Statute Fund Author List Suit Comp Trans Cleanup
PA Hazardous Sites Cleanup Act ("HSCA) (Act 108) X X X X WS X
1988
V'A *'aste Management Act X \
Virginia Environmental Emergency Response Fund X
Act
WV Groundwater Protection Act WS
Hazardous Waste Emergency Response Fund Act X
Harardous Waste Management Act X X
4 AL Alabama Hazardous Substances Cleanup Fund XX X
FL Pollutant Discharge Prevention and Removal Act XX WS
Resource Recovery and Management Act X X
GA The Hazardous Site Response Act of 1992 (HSRA) XXX X
KY KRS 22401-tOO: 22446-580H3) X X X X X
MS Solid Waste Disposal Act of 1974 X X
Property Transfer Act of 1993 X
Air and Water Pollution Control Act (including X X
Pollution Emergency Fund)
NC Solid and Hazardous Wastes Management Act XX WS X
Inactive Hazardous Sites Response Act of 1987 XXX XX
SC Hazardous Waste Management Act XXX X
TN Hazardous Waste Management Act of 1983 XXX XX
5 EL Responsible Property Transfer Act X
Illinois Environmental Protection Act XX XX
IN Voluntary Remediation Program X
Responsible Property Transfer Law X
Environmental Management Act X X
Hazardous Substances Response Trust Fund Act X X X
MI Michigan Natural Resources and Environmental X X X X XX
Protection Act
MN Minnesota Environmental Response & Lability Act X X X X X X X
OH Voluntary Action Program X X
Solid and Hazardous Waste Laws X X X X X
WI Environmental Repair Saute 'X XX
Hazardous Substance Spill Statute X
ER: Emergency Response and Removals WS: Water Supplies
CS. CERCLA Share O: Other Statutes
64
-------
TABLE V-2
STATUTORY AUTHORITIES AND PROVISIONS
Cleanup Enforce. Prior Citizen Victim Prop Vol
Reg State Statute Fund Author List Suit Comp Trans Cleanup
wi
AR
LA
NM
OK
TX
IA
KS
MO
Abandoned Containers Statute
Contaminated Land Recycling Statute
Arkansas Emergency Response Fund Act
Arkansas Remedial Action Trust Fund Act
Arkansas Hazardous Waste Management Act
Liability for Hazardous Substance Remedial Action
Law
Hazardous Waste Control Law
Inactive and Abandoned Hazardous Waste Site Law
Environmental Quality Law
Hazardous Waste Act
The Water Quality Act
50 OS 1991 2-\ (Public Nuisance Law)
Environmental Quahty Code
Hazardous Waste Fund Act
Environmental Quality Act
The Solid Waste Disposal Act
Voluntary Cleanup Authonty
Texas Property Code
Hazardous Substances Spill Prevention and Control
Act
Groundwater Protection Act
Groundwater Hazard Documentation Law
Environmental Quality Act
Environmental Response Act
Solid Waste Management Act
The Water Pollution Control Statutes
Kansas Water Plan
Kansas Drycleaner Environmental Response Act
Hazardous Waste Management La*
Voluntary Cleanup Law
X
X
X
X
X
ER.CS
ERXTS
CS
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 XX
X X
X
X
X
X
X
X X WS X
X
X X
X X
NE Environmental Protection Act
Remedial Action Plan Monitoring Act
CO Hazardous Waste Sites Act CS
Hazardous Waste Management Act
Water Quality Control Act
The Voluntary Cleanup and Redevelopment Act
MT State Participation in CERCLA X
ER. Emergency Response and Removals WS: Water Supplies
CS: CERCLA Share O: Other Statutes
65
-------
TABLE V-2
STATUTORY AUTHORITIES AND PROVISIONS
Cleanup Enforce. Prior Citizen Victim Prop V'ol
Reg
8
9
10
State
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
Statute
Comprehensive Environmental Cleanup and
Responsibility Act
Environmental Quality Restoration Fund
Water Pollution Control Law
Hazardous Waste Management Act (HMWA)
Environmental Protection Act
Regulated Substance Discharge Act
Water Pollution Control Act
Hazardous Waste Management Act
Hazardous Substances Mitigation Act
Environmental Quality Act
Environmental Qualify Act
Property transfer disclosure law
Hazardous Substance Account Act
Environmental Response Law
Water Pollution Control Law
Hazardous Waste Statute
Oil and Hazardous Substance Pollution Control
Law
Oil and Hazardous Substance Release Control Law
Oil and Hazardous Substance Releases Law
Liability and Cost for Oil and Hazardous Substance
Discharge Law
Environmental Protection and Health Act
Idaho Hazardous Waste Management Act
Environmental Cleanup Law
Model Toxics Control Acs
Fund
X
X
X
X
ER
X
X
X
X
X
X
ER
X
X
Author List
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
Suit Comp Trans Cleanup
X
0
X
X X
X X
X
X X
x- ws
X
X
x ws
ER Emergency Response and Removals WS. Water Supplies
CS CERCLA Share 0: Other Statutes
66
-------
TABLE V-3
*
Hazardous Sites
SUMMARY
States identify -85,000 known and suspected sites, a decline from the -100,000
identified in 1993.
The number of known and suspected sites in each State range from 0 to 20,000.
States identify -30,000 sites as needing attenhon, a decline from the -40,000 identified
in 1993.
• The number of sites needing attention in each State ranges from 0 to 7,000.
• Only five States have more than 1,000 sites identified as "needing attention".
Thirty-five 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; 17 States — while maintaining inventories — have no officially sanctioned list
67
-------
TABLE V-3
HAZARDOUS SITES
Region
1
2
3
4
5
Known and State Sites State
Final Proposed Delisted Suspected Identified as Inventory or
State NPL Sites NPL Sites NPL Sites State Sites Needing Attention Pnonry List
CT
ME
MA
NH
RI
VT
NJ
NY
PR
OE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
NC
SC
TN
IL
IN
MI
15
11
30
17
12
8
108
81
9
19
0
13
100
24
6
12
54
13
20
2
23
24
17
38
36
74
0
1
0
0
0
1
0
0
1
0
0
I
2
0
I
I
4
1
0
2
0
0
1
I
I
4
I
0
I
0
0
0
7
7
0
2
0
2
8
2
I
I
6
1
0
1
1
I
0
2
5
6
2440
419
7500
250
300
1700
20000
929
256
280
30
463
100
2015
-
650
1023
904
1000
770
1029
550
1270
5000
2500
.
649
92
450Q
250
40
931
6500
793
256
120
0
198
50
363
-
125
656
82
600
156
801
120
198
950
200
2764
11
419
380
250
TOO
929
-
120
-
i 1
351
15
133
183
120
156
120
63
:-64
Dash « No Figure Available or No List
68
-------
TABLE V-3
HAZARDOUS SITES
Region
5
6
7
8
9
10
Known and State Sites State
Final Proposed Delisted Suspected Identified as Inventor/ or
State NPL Sites NPL Sites NPL Sites State Sites Needing Attention Pnonty List
MN
OH
WI
AR
LA
NM
OK
TX
IA
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
47
34
41
12
14
10
10
27
18
11
22
8
17
8
2
3
12
3
11
95
4
1
8
8
11
56
0
4
0
0
5
I
0
0
t
2
0
2
2
1
0
0
2
0
0
1
0
0
0
2
I
0
7
0
0
1
0
1
0
4
2
13
1
0
1
0
1
I
0
0
0
1
0
0
0
1
I
4
3600
1190
4000
398
690
278
767
821
900
609
1475
400
225
277
0
1065
220
-
1620
4809
200
136
1347
59
1559
1364
215
406
565
45
136
182
162
66
:oo
324
200
200
225
240
0
241
-
-
400
1079
25
136
1347
59
218
932
181
1190
4000
i:
690
56
51
69
494
52
•
•
17^
-
1065
-
-
27
293
1
-
1347
-
124
507
Dash » No Figure Available or No List
69
-------
TABLE V-4
*
Removal and Remedial Actions Taken at Non-NPL Sites
SUMMARY
• The number of actions underway ranges from 0 (Delaware, Idaho, and North Dakota)
to 9,276 (New Jersey).
• The number of actions completed during FY95 ranges from 0 (Colorado, Iowa,
Massachusetts, Montana, and Puerto Rico ) to 3,405 (Texas).
• The number of actions completed since the start of a State's program ranges from 0
(Colorado, Nebraska, North Dakota, and Puerto Rico) to 16,633 (Texas).
• The total number of actions reported by all States as of the end of FY95 was:
• Actions underway: 16,090
• Actions completed during last fiscal year: 7,960
• Actions completed since start of program: 44,690
70
-------
TABLE V-4
REMOVAL AND REMEDIAL ACTIONS TAKEN
NON-NPL SITES
Region
1
•j
3
4
5
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
\ctions
Underway
300
5
2356
-
40
200
9276
79
•>
0
2
-
13
30
-
22
23
108
105
133
11
5
13
4
25
250
\cuons Completed
Last Fiscal Year
40
10
-
-
13
60
2366
65
0
. 3
5
-
12
4
-
18
5
8
59
30
13
3
17
14
13
1312
Actions Completed
Since Stan
of Program
103
48
3462
-
32
726
12004
596
0
15
0
-
62
70
-
89
44
8
325
80
114
24
341
75
43
5028
Dash = No Figure Available
71
-------
TABLE V-4
REMOVAL AND REMEDIAL ACTIONS TAKEN
NON-NPL SITES
Actions Completed
Region State
5 Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
10 Alaska
Idaho
Oregon
Washington
Actions
Underway
185
105
130
5
11
40
1
10
25
290
42
-
2
21
0
241
30
-
13
204
4
118
1216
0
232
163
Actions Completed
Last Fiscal Year
29
42
42
I
29
6
4
3405
0
15
7
-
0
0
0
63
2
-
8
60
10
68
73
1
13
12
Since Stan
of Program
206
255
1200
31
133
33
24
16633
-
101
100
-
0
125
0
824
9
-
69
710
30
340
334
4
81
159
Dash = No Figure Available
72
-------
TABLE V-5
*
Program Organization
SUMMARY
Program staff levels range from three staff members to 650.
Only five States now have program staff levels below ten FTE.
The overall program staff level was 3,585 FTE, up from 3,491 in 1993.
Twenty-five States rely solely on the State Attorney General's office for legal support.
Sixteen States rely solely on the responsible agency for legal support.
Total legal support was 211 FTE attorneys, down from 247 in 1993.
73
-------
TABLE V-5
PROGRAM ORGANIZATION
Reg
State
Agency
Program
Staff Legal Support Office
of
Attorne1
CT Department of Environmental
Protection
ME Department of Environmental
Protection
Permitting. Enforcement
and Remediation
Division. Bureau of
Water Management
Division of Site
Investigation and
Remediation
51 DEP Counsel to the
Commissioner. \G s
Office
18 AG s Office
MA Department of Environmental
Protection
NH Department of Environmental
Services
RI Department of Environmental
Management
VT Department of Environmental
Conservation
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
Bureau of Waste Site
Cleanup
Hazardous Waste
Management
Compliance Bureau
Division of Site
Remediation
Hazardous Sites
Management Section
Site Remediation
Program
Division of Hazardous
Waste Remediation
Emergency Response
and Superfund Area
Superfund Branch
Pesticides, Hazardous
Waste and Underground
Storage Tanks Division
Environmental
Restoration and
Redevelopment Program
Land Recycling and
Cleanup Program
206 DEP Office of General
Counsel. AG's Office
5 AG's Office
30 DEM Office of Legal
Services
14 DEC Enforcement
Division. AG's Office
650 AG's Office
289 DEC Division
Environmental
Enforcement, AG's
Office
22 Environmental Quality
Board Legal Division
30 AG's Office
22 Office of Corporate
Counsel
30 AG's Office
120 DEP Office of Chief
Counsel
74
-------
TABLE V-5
PROGRAM ORGANIZATION
Reg.
3
State
VA
WV
AL
FL
GA
KY
Agency
Program
Staff
Number
of
Legal Support Office Attorneys
MS
NC
SC
TN
IL
IN
Department of Environmental
Quality
Department of Commerce,
Labor and Environmental
Resources
Department of Environmental
Management
Department of Environmental
Protection
Environmental Protection
Division
Department for
Environmental Protection
Department of Environmental
Quality
Department of Environment,
Health, And Natural
Resources
Department of Health and
Environmental Control
Department of Environment
and Conservation
Environmental Protection
Agency
Department of Environmental
Manai
Office of Federal
Facilities Restoration
and Superfund Programs
Office of Waste
Management
Special Projects Office
Bureau of Waste
Cleanup
Hazardous Sites
Response Program
Natural Resources and
Environmental
Protection Cabinet,
Division of Waste
Management, Superfund
Branch
Office of Pollution
Control, Hazardous
Waste Division
Superfund Section
Bureau of Solid and
Hazardous Waste
Management
Division of Superfund
Remedial Project
Management Section
Office of Environmental
Response, Project
Management and
Emergency Response
Branches
17 AG's Office
12 AG's Office
20 DEM Office of General
Counsel
Office of General
Counsel
62
18 State Law Department
28 Office of Legal Services
11 Department of
Environmental Qualiry
29 AG's Office
30 DHEQ Legal Office
64 Office of General
Counsel, AG's Office
105 EPA Office of Legal
Counsel, AG's Office
53 DEM Office of Legal
Counsel. AG's Office
i
75
-------
TABLE V-5
PROGRAM ORGANIZATION
Reg.
5
State
MI
Agency
Program
Staff Legal Support Office
298 AG's Office
98 AG s Office.
Environmental
Protection Program
176 EPA internal legal staff.
AG s Office
50 Bureau of Legal Services
10 DPC&E Legal Division
34 Legal Affairs and
Enforcement Office
17 Office of General
Counsel
16 Office of General
Counsel
102 NRCC Legal Services
Division
11 DNR Compliance and
Enforcement Bureau,
AG's Office
103 Office of Legal Services
48 AG's Office
17 DEQ
19 AG's Office
Number
of
Attomevs
OH
WI
AR
LA
NM
OK
TX
IA
KS
MO
NE
CO
Department of Environmental
Quality
MN Pollution Control Agency
Environmental Protection
Agency
Department of Natural
Resources
Department of Pollution
Control and Ecology
Department of Environmental
Quality
Environment Department
Department of Environmental
Quality
Natural Resource
Conservation Commission
Department of Natural
Resources
Department of Health and
Envirc
DepKtmeot of Naomi
ReMurce*
Environmental Response
Division
Groundwater and Solid
Waste Division Site
Response Section
Emergency and
Remedial Response
Emergency and
Remedial Response
Section
Hazardous Waste
Division Superfund
Branch
Legal Affairs and
Enforcement Office
Superfund Oversight
Section of Ground Water
Quality Bureau
Waste Management
Division
Pollution Cleanup
Division
Solid Waste Section
Bureau of Environmental
Remediation
Hazardous Waste
Program, Superfund
Section
Dcpanineai of Environmental State Superfund Section
Quality of the Air and Waste
Management Division
Department of Public Health Remedial Programs
and Environment
3
0
76
-------
TABLE V-5
PROGRAM ORGANIZATION
Number
of
Reg State
8 MT
ND
SD
UT
WY
Agency
Department
Quality
Department
Department
and Natural
Department
Quality
Department
of
of
Environmental
Health
of Environment
Resources
of
of
Environmental
Environmental
Program
Environmental
Remediation Division
Environmental Health
Section
Groundwater Quality
Program
Superfund Branch
Water Quality Division:
Staff Legal Support Office
25 AC'S
5 AG's
3 AG's
34 AG's
- AG's
Office
Office
Office
Office
Office
Attorneys
4
1
1
1
5
10
Quality
AZ Department of Environmental
Quality
CA Environmental Protection
Agency
HI Department of Health
NV Department of Conservation
and Natural Resources
AK Department of Environmental
Conservation
ID Division of Environmental
Quality
OR Department of Environmental
Quality
and the Solid and
Hazardous Waste
Division
Remedial Projects 24
Section
Department of Toxic 297
Substances Control --
Site Mitigation Program
WA Dep
: of Ecology
Hazard Evaluation and
Emergency Response
Bureau of Corrective
Action
Contaminated Sites
Remediation Program
Community Programs
and Planning and
Support Services
Waste Management and
Cleanup Division
Waste Management
22
12
42
20
98
145
In-house paralegals.
AG's Office
Department of Toxic
Substance Control's
Office of Legal Counsel.
AG's Office
AG's Office
AG's Office
AG's Office
AG's Office - Natural
Resources Division
AG's Office
AG's Office
13
Division
77
-------
TABLE V-6
*
Program Administration and Staff: Funding Sources
SUMMARY
Thirty States use State general funds for program administration and staff.
Thirty-six States use State cleanup funds for program administration and staff.
Fifty States use federal funds for program administration and staff.
78
-------
TABLE V-6
PROGRAM ADMINISTRATION AND STAFF: FUNDING SOURCES
Region 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
State
General
Fund
22%
10%
56%
80%
27%
1%
10%
10%
25%
10%
10%
3%
50%
20%
21%
10%
15%
6%
10%
Cleanup
Fund
37%
61%
27%
2%
97%
92%
40%
10%
100%
X
15%
85%
100%
17%
59%
66%
69%
75%
Federal
Grants
40%
29%
27%
20%
46%
• 75%
3%
7%
90%
50%
75%
80%
90%
X
82%
15%
50%
75%
79%
73%
26%
34%
25%
15%
Other
2%
17%
23%
5%
X = Significant funding source, but no percentage available.
79
-------
TABLE V-6
PROGRAM ADMINISTRATION AND STAFF: FUNDING SOURCES
Region State
5 Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
10 Alaska
Idaho
Oregon
Washington
State
General
Fund
18%
28%
15%
1%
8%
10%
4%
X
66%
1%
18%
1%
Cleanup
Fund
75%
85%
37%
10%
50%
5%
80%
5%
3%
20%
10%
X
31%
80%
55%
5%
88%
73%
Federal
Grants
25%
15^
45%
90%
50%
64%
80%
20%
80%
17%
80%
90%
60%
X
100%
90%
96%
X
34%
23%
51%
20%
45%
80%
3%
27%
Other
8%
15%
79%
2%
30%
X
76%
15%
8%
X = Significant funding source, but no percentage available.
80
-------
TABLE V-7
*
State Cleanup Funds
SUMMARY
Fifty States have cleanup funds; two States have no fund.
Twenty-one States have more than one fund.
Total balance in all State funds at the end of fiscal year 1995 was S1464.9M, including
$855.9M in authorized bonds in five States.
The average State fund balance is $29.3M, and the average State fund balance
excluding bond authorizations is S12.2M (5% higher than the $11.6M in 1991 & 1993).
The median State fund balance (including bond authorizations) is S3.97M, compared
to 53.89M in 1993.
Fund balances, including bond authorizations, are distributed as follows (Maryland
and Wyoming provided no information):
• Two States have no fund (NE and DC).
• Four States have balances less than $1M.
• Twenty-one States have balances of at least $1M but less than $5M.
• Eight States have balances of at least $5M but less than $10M.
• Eight States have balances of at least $10M but less man $50M.
• Seven States have balances of $50M or more.
Additions to me States' funds during FY95 totalled 5444.58M (46 States reporting), a
54% decrease from 1993. Additions were distributed as follows:
• Fourteen States added less than $1 M.
• Eighteen States added at least $1M but less than $5M.
• Four States added at least $5M but less than $10M.
• Six States added at least $10M but less than $50M.
• Four States added $50M or more.
81
-------
TABLE V-7
STATE CLEANUP FUNDS
Region State
; CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
VA
WV
4 AL
FL
Fund
Urban Sites Remedial Action Fund
State Superfund
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund i7661 ^
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund i~662 3)
Uncontrolled Sites Fund
Oil and Hazardous Material Response Loan
Hazardous Waste Cleanup Fund
Environmental Response Fund
Environmental Contingency Fund
Petroleum Cleanup Fund
Bond Fund
Spill Fund
Hazardous Discharge Site Cleanup Fund
Remediation Guarantee Fund
Sanitary Landfill Contingency Fund
Environmental Quality Bond Act
Hazardous Waste Remedial Fund
Environmental Emergencies Fund
Hazardous Substance Cleanup Fund
None
Subaccount of the Hazardous Substance
Control Fund
Hazardous Sites Cleanup Fund
Environmental Emergency Fund
Hazardous Waste Emergency Response
Fund
Hazardous Substance Cleanup Fund
Hazardous Waste Management Trust Fund
Water Quality Assurance Trust Fund
Fund
Balance
S3.000.000
S7. 5-5.000
$920 13-
S4.000.000
$2.042.921
S3.5T3.992
$2. 513.036
S3.000.000
S2.655
$840.000
$3.400.000
$86.600.000
$5.500.000
$0
$5.000.000
$39.600.000
$594.000.000
$5.100.000
$2.482.111
$3,700.000
-
$75,000,000
$2,575.861
$1.000.000
$478.167
$7.000.000
•\dditions
During FY
S10.000000
S9 000.000
so
$0
S425 -8-
SO
SI. 200.000
SI. 556.000
$450.000
S4. 000.000
$8.500.000
$25.300.000
$27,100.000
$0
$3.800.000
$0
$51,600.000
$1.100.110
$4.400.000
-
$51,000.000
$414.650
$500,000
$441.499
$1.500,000
Totai
Expended
$301 295
$812 8'9
$430 '62
S9.515 181
S2.350 000
S500 000
S5 200.000
S8.000.000
S29.000 000
$600.000
SO
SO
S79.500.000
$49.900.000
$986.717
$2.000.000
-
$16.000.000
$73.926
$324.048
$1.500.000
$1.736.600
T^tai "
Obligated
$14 ooo •:
$4 :>oo :
$85 5
$86 2
$:o 5.2 :•
$2' >
S56.9000"
$5.6000
$123 500 0<
:
$23.000.0(
S3. 745. 41
82
-------
TABLE V-7
STATE CLEANUP FUNDS
Region
-i
5
6
'l
State
GA
KY
MS
NC
SC
TN
IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
TX
IA
KS
Fund
Hazardous Waste Trust Fund
Hazardous Waste Management Fund
Pollution Emergency Response Fund
Inactive Hazardous Sites Cleanup Fund
Emergency Response Fund
Cost Share Fund
Hazardous Waste Contingency Fund
Remedial Action Fund
Hazardous Waste Fund
Hazardous Substance Response Trust Fund
Environmental Management Special Fund
Environmental Protection Bond Fund
Environmental Response Fund
MERLA Superfund Account
505 (Funding for Remedial Actions in
DERR)
503 (Emergency Response progam in
DERR. Hazardous Waste Facility Board.
and Hazardous Waste Program/Division)
Environmental Fund
Emergency Response Fund
Remedial Action Trust Fund
Hazardous Waste Site Cleanup Fund
State Remediation Prog ram
Hazardous Waste Emergency Fund
Hazardous Waste Fund
Environmental Trust Fund
Spill Response Fund
Hazardous and Solid Waste Remediation Fee
Fund (Fund 550)
Hazardous Waste Remedial Fund
State Environmental Response Fund
Fund
Balance
$13.029.28!
SI. 770.000
SI. 325.000
$2.500.000
$500.000
S4. 800.000
$18.635.064
$8.036.052
$6.400.000
$27.548.620
$22.963.969
$165.000.000
$19.000.000
$2,981.000
$13.800.866
$25.759.827
$3.472,400
$138.603
$7.311.447
$2,007,883
SO
$1, 204, 500
$1.096.005
$1.000.000
$292.000
$47.069.124
$1.300,000
$225.000
Additions
During FY
$11.535.443
$2.780.000
$669.000
$400.000
$53.576
$800.000
$2.140.913
$5.426.626
$3.860.000
$6,562.899
$62.000.000
$5.692,000
$25.364,587
not available
$2,449.500
$259.915
$1.650,542
SO
$218,400
$43,428
$1.000.000
SO
$26,571.123
$300,000
$596,000
Total
Expended
$2.538.889
SI. 600 000
$2.505.000
$0
$53.576
$200.000
$804.045
$3.154.805
$2.340.000
$1.676.164
$253. ^34
$6.714.000
$11.563.721
$3.754.521
$5.425.000
$269.605
$810.683
$439.733
$218.400
$43.020
$348.115
$0
$0
$28.615.006
$15.000
$467.000
Total
Obligated
$4.900.000
S2.400 000
SO
$4.530 620
S700.000
$2. 134.000
$813.253
$50.000.000
$500.000
$408.002
SI. 277 ~-4
$349 801
$9.925.000
SO
$1.992.117
$218.400
$43.020
$348.115
$0
$0
$25.000
$154.000
83
-------
TABLE V-7
STATE CLEANUP FUNDS
Region
7
8
9
10
State
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
Fund
Dry Cleaning Trust Fund
State Water Plan - Contamination
Remediation Account
State General Funds
Hazardous Waste Remedial Fund
None
Hazardous Substances Response Fund
Natural Resource Damage Recovery Fund
Federal Agreements
Hazardous Waste/CERCLA Account
Environmental Quality Protection Fund
Direct PRP Fund
Environmental Quality Restoration Fund
Regulated Substance Response Fund
Hazardous Substances Mitigation Fund
Trust and Agency Account Fund
Water Quality Assurance Revolving Fund
Hazardous Substance Cleanup Bond Fund
Hazardous Waste Control Account
Environmental Response Revolving Fund
Hazardous Waste Management Fund
Oil and Hazardous Substance Release
Response Fund
Governor's Office Fund
Hazardous Waste Emergency Account
Environmental Remediaaoo Fund
Orphan Site Account
Hazardous Substance Remedial Action Fund
State Toxics Control Account
Local Toxics Control Account
Fund
Balance
SO
$0
$0
$5.300.000
$13.400,000
$2.800.000
$1.451.893
$129,000
$1,750.000
$5.100.000
-
$1.280.000
$3.400.000
$56.000.000
$3.000.000
$1.000.000
r3.356.000
$1.925.000
$350,877
$2.100.000
$1.042.000
$4.932.000
$2,375:673
$26.161.300
Additions
During FY
$0
$1.500,000
S497.000
$2.700.000
$3.300.000
$674.489
$0
$131.734
$160.000
-
$1.550.000
$1.700.000
$15.234.000
$78.238
$3,113.311
$4.740.817
$25.811.359
$20.730.515
Total
Expended
$0
$1.400.000
$493.000
$2. 800.000
$2. 800.000
$0
SI. 600.000
$19.762
S690.496
$470.000
SO
$61.885
$188.000
-
$1.120.000
$2.957.000
$11.442.000
$500.000
$500.000
$12.900.000
$6.807
$2.878.824
$5.902.192
$25,700.000
S29.158.688
Total
Obligated
$1 230 0(
S466.0C
S10.0000C
J
<
3
s
$
s
s
$5.100.00
$1.540.00
$1.200.001
$3.600.001
H
V.
V.
$1.185.08;
$16.916,43*
84
-------
TABLE V-8
*
Expenditures and Obligations From State Cleanup Funds
SUMMARY
States spent a total of $386.IM from their State Funds (six States not reporting and
two States have no Fund).
States obligated a total of S363.4M to be spent in the future (38 States reporting).
States spent $203M on non-NPL sites (37 States reporting).
Total expenditures are distributed as follows:
• Fifteen States spent less than $1M.
• Sixteen States spent at least $1M but less than $5M.
• Five States spent at least $5M but less than $1OM.
• Six States spent at least $10M but less than 550M.
• Two States spent $50M or more.
The median spent by States was 52.345M, compared to S2.3M in 1993.
The median spent on non-NPL sites was $1.12M.
85
-------
TABLE V-8
EXPENDITURES AND OBLIGATIONS FROM STATE CLEANUP FUNDS
Expended Expended Toul Obligated Obligated
Reg State Fund For NPL For non-NPL Expended For NPL For non-NPL
CT Urban Sites Remedial Action S14.000.0CX)
Fund
Scate Superfund
ME Uncontrolled Hazardous $301.295
Substance Sites Cleanup
Bond Fund (7661.7)
Uncontrolled Hazardous
Substance Sites Cleanup
Bond Fund
Uncontrolled Hazardous $812.879 $3(
Substance Sites Cleanup
Bond Fund (7662.3) i
Uncontrolled Sues Fund $430.762
MA Oil and Hazardous Material $2.065.453 $7.449.728 $9.515.181 $4.373.148 $6.138.857 $10512
Response Loan
NH Hazardous Waste Cleanup
Fund
RJ Environmental Response Fund $2.350,000 $2"
VT Environmental Contingency $0 $500.000 $500.000 $0 $0
Fund
Petroleum Cleanup Fund $0 $5,200,000 $5.200.000 $0 $0
NJ Bond Fund $8.000.000
Spill Fund $550,000 $28.450.000 $29.000.000 $100.000 $5.500.000
Hazardous Discharge Site $10.000 $590.000 $600.000
Cleanup Fund
Remediation Guarantee Fund . $0
Sanitary Landfill Contingency $0
Fund
NY Environmental Quality Bond $100.000 $79,400,000 $79.500.000
Act
Hazardous Waste Remedial $49.900.000
Fund
PR Environmental Emergencies $986,717
Fund
OE Hazardous Substance Cleanup $0 $2.000.000 $2.000.000 $0 $0
Fund
DC None
MD Subaccount of the Hazardous - ...
Substance Control Fund
86
-------
TABLE V-8
EXPENDITURES AND OBLIGATIONS FROM STATE CLEANUP FUNDS
Expended Expended Total Obligated Obligated T:tal,
Reg State Fund For NPL For non-NPL Expended For NPL For non-NPL Obligated
3 PA .Hazardous Sites Cleanup Fund 56.000.000 S10 >XX3 000 $16 -300 000 $10 000 000 $13 000 000 $23 »j ><0
VA Environmental Emergency $"3 9Z" $"3926
Fund
WV Hazardous Waste Emergency
Response Fund
4 AL Hazardous Substance Cleanup $324.048 $324.048
Fund
FL Hazardous Waste Management $1.500.000
Trust Fund
Water Quality Assurance Trust SO Si "36.600 SI."36.600 ' $500 000 $3 245 400 $3 '45 4i,o
Fund
GA Hazardous Waste Trust Fund' $2.538.889 $2.538 889 $4 900.000 $4 900 000
KY Hazardous Waste Management $94.000 SI.500.000 SI.600.000 $353.000 S2.040.000 S2.400 000
Fund
MS Pollution Emergency Response SO S2.505.000 S2.505.000
Fund
NC Inactive Hazardous Sites SO $0 SO $0
Cleanup Fund
Emergency Response Fund $0 S53.576 S53.576
Cost Share Fund $200.000 $0 $200.000 $4.530.620 SO $4530620
SC Hazardous Waste Contingency $61.435 $742,610 $804.045 $0 S700.000 $-00-XX)
Fund
TN Remedial Action Fund $59.000 $1.423,000 $3.154.805
5 0. Hazardous Waste Fond $420.000 $1.920,000 $2.340.000 $2.134.000
IN Hazardous Substance Response $711,261 $964,903 $1,676,164 $101,995 $722.175 S813.253
Trust Fund
Environmental Management SO $253.734 $253.734 $13.607.473
Special Fund
MI Environmental Protection Bond $50 000.000
Fund
Environmental Response Fund $0 $500.000 $500000
MN MERLA Superfund Account $74,573 $6,639,427 $6.714.000 $35.427 $372.575 S408.002
OH 505 (Funding for Remedial $11,563,721 SI 2" T'4
Actions in DERR)
87
-------
TABLE V-8
EXPENDITURES AND OBLIGATIONS FROM STATE CLEANUP FUNDS
Reg
5
6
7
8
State
OH
wi
^R
LA
NM
OK
TX
IA
KS
MO
NE
CO
MT
Fund
503 Emergency Response
progam in DERR.
Hazardous Waste Facility
Board, and Hazardous W'aste
Program Division'
Environmenul Fund
Emergency Response Fund
Remedial Action Trust Fund
Hazardous Waste Site Cleanup
Fund
Sute Remediation Program
Hazardous Waste Emergency
Fund
Hazardous Waste Fund
Environmenul Trust Fund
Spill Response Fund
Hazardous and Solid Waste
Remediation Fee Fund (Fund
550)
Hazardous Waste Remedial
Fund
State Environmental Response
Fund
Dry Cleaning Trust Fund
Sute Water Plan -
Contamination Remediation
Account
Sute General Funds
Hazardous Waste Remedial
Fund
None
Hazardous Substances
Response Fund
Natural Resource Damage
Recovery Fund
Federal Agreements
Hazardous Waste/CERCLA
Expended
For NPL
$1.075 000
$0
$186.880
$331.583
$0
$0
$240.014
$0
SO
$1.000
$0
$0
$0
so
$2,800,000
$0
$1.600.000
$19.762
Exoended
For non-NPL
$4.350.000
$269.605
$623.803
$108.150
$218.400
$43.020
$108.101
$0
SO
$14.000
$467,000
$0
$1.400.000
$493.000
SO
SO
$0
SO
Toul
Expended
$3 '54.521
$5.425.000
$269 605
$810.683
$439,733
$218.400
$43.020
$348.115
SO
$0
$28,615.006
$15.000
$467.000
$0
$1.400,000
$493,000
$2.800.000
$2.800.000
$0
$1.600.000
$19.762
Obligated
For NPL
$1 0^5 000
$0
$331 583
$0
$0
$240.014
$0
SO
$5.000
$0
$0
$0
$0
$10.000.000
$0
$0
$0
Obligated
For non-NPL
$8 8-50 'XX3
SO
$1 660 534
$218.400
$43.020
$108.101
$0
$0
S20.000
$154.000
SO
$1.250.000
$466.000
$0
SO
so
so
Op'n^!.
s:-
$9 9;;
S ^9 *"
$43
$348
525
$;54
s; :50
S466
$ . 0 000
Account
-------
TABLE V-8
EXPENDITURES AND OBLIGATIONS FROM STATE CLEANUP FUNDS
Expended Expended Total Obligated Obligated T.^tal
Reg State Fund For NPL For non-NPL Expended For NPL For non-NPL Obligated
S MT
VD
SD
LT
Environmental Quality
Protection Fund
Direct PR? Fund
Environmental Quality
Restoration Fund
Regulated Substance Response
Fund
Hazardous Substances
SO
$320.000
SO
SO
SO
S690.496
$150.000
SO
$61.885
$188,000
$690.496
$470.000
so
$61.885
$188.000
$0
SO
SO
so
so
so
so
so
so
so
so
so
ss ;oo ooo
Mitigation Fund
WY Trust and Agency Account - - - - -
Fund
9 \Z Water Quality Assurance Si.120.000 SI.120.000 Si.540.000 S154QOOO
Revolving Fund
CA Hazardous Substance Cleanup $684.000 $2.273.000 $2.957.000
Bond Fund
Hazardous Waste Control $1.320,000 $10.122.000 $11.442.000
Account
HI Environmental Response $0 $500.000 $500,000 $0 $1.200.000 SlIX'.XW
Revolving Fund
NV Hazardous Waste Management $500.000 $500.000
Fund
10 AK Oil and Hazardous Substance • • $12.900.000 - - S3 •*>.' XX)
Release Response Fund
ID Governor's Office Fund
Hazardous Waste Emergency $0 $6.807 $6.807 SO $0 SO
Account
Environmental Remediation
Fund
OR Orphan Site Account $2.878.824 SO
Hazardous Substance Remedial $5.902.192 SO
Action Fund
WA State Toxics Control Account $650.000 $25.050.000 $25.700.000 $0 $1.185.085 S; $5 :85
Local Toxics Control Account $29,158.688 $, i -. "> 436
89
-------
TABLE V-9
*
Sources of State Cleanup Funds
SUMMARY
Significant sources of funds (more than 20% of fund additions) are:
• Fees in 23 States (24 funds).
• Cost recoveries in 17 States (18 funds).
f
• Taxes in 15 States (17 funds).
• Penalties and fines in 14 States (16 funds).
• Appropriations in 13 States (13 funds).
• Bonds in 12 States (16 funds).
90
-------
Region State
TABLE V-9
SOURCES OF STATE CLEANUP FUNDS
Fund
CT Urban Sites Remedial Action Fund
State Superfund
ME Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund (7661 7)
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund (7662.3)
Uncontrolled Sites Fund
MA Oil and Hazardous Material Response Loan
NH Hazardous Waste Cleanup Fund
RJ Environmental Response Fund
VT Environmental Contingency Fund
Petroleum Cleanup Fund
NJ Bond Fund
Spill Fund
Hazardous Discharge Site Cleanup Fund
Remediation Guarantee Fund
Sanitary Landfill Contingency Fund
NY Environmental Quality Bond Act
Hazardous Waste Remedial Fund
PR Environmental Emergencies Fund
DE Hazardous Substance Cleanup Fund
DC None
MD Subaccoum of the Hazardous Substance
Control Fund
PA Hazardous Sites Cleanup Fund
VA Environmental Emergency Fund
WV Hazardous Waste Emergency Response
Fund
AL Hazardous Substance Cleanup Fund
FL Hazardous Waste Management Trust Fund
Water Quality Assurance Trust Fund
GA Hazardous Waste Trust Fund
TR CR PF
m
m
S
s
S
s
s
m
m
S
S
S
S
m
m
m
m
m
m
m
m
m
m m
S
m m
S m
m m
S
m
m
m
m m
m
m
m
S
S
m
. m
S
m
m
m
m
m
m
m
m
m
m
S = Significant funding source (>20%) m * Minor funding source (<20%)
A. Appropriations P- Penalties T Taxes CR: Cost Recoveries
PF: Private Funds TR. Transfers I: Interest B: Bonds F: Fees 0: Other
91
-------
TABLE V-9
SOURCES OF STATE CLEANUP FUNDS
Region State
•i KY
MS
sc
sc
TN
5 IL
LN
MI
MN
OH
Wl
6 AR
LA
NM
. OK
TX
7 IA
1CS
Fund A B FT I P TR CR PF 0
Hazardous Waste Management Fund S mm m
Pollution Emergency Response Fund $ 5
Inactive Hazardous Sites Cleanup Fund m S m
Emergency Response Fund m S m
Cost Share Fund S m
Hazardous Waste Contingency Fund m S m
Remedial Action Fund S S mm S
Hazardous Waste Fund mmSmmSmSm-n
Hazardous Substance Response Trust Fund m S m m m m m
Environmental Management Special Fund S S
Environmental Protection Bond Fund S
Environmental Response Fund S m m S
MERLA Superfund Account S m m S m
505 (Funding for Remedial Actions in S S m
DERR)
503 ("Emergency Response progam in S S m
DERR. Hazardous Waste Facility Board.
and Hazardous Waste Program/Division)
Environmental Fund ,S SSmmmmmrri
Emergency Response Fund S
Remedial Action Trust Fund • m S m S m
Hazardous Waste Site Cleanup Fund S m S m
State Remediation Program S
Hazardous Waste Emergency Fund S
Hazardous Waste Fund S m
Environmental Trust Fund S
Spill Response Fund S
Hazardous and Solid Waste Remediation Fee S m m
Fund (Fund 530)
Hazardous Waste Remedial Fund S
State Environmental Response Fund m S
Dry Cleaning Trust Fund S
State Water Plan - Contamination S
Remediation Account
S = Significant funding source (>20%) m = Minor funding source (<20%)
A Appropriations P- Penalties T Taxes CR: Cost Recoveries
PF Private Funds TR: Transfers I: Interest B: Bonds F Fees O: Other
92
-------
Region State
TABLE V-9
SOURCES OF STATE CLEANUP FUNDS
Fund \BFTl
TR CR PF
10
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
Stale General Funds
Hazardous Waste Remedial Fund
None
Hazardous Substances Response Fund
Natural Resource Damage Recovery Fund
Federal Agreements
Hazardous Waste CERCLA Account
Environmental Quality Protection Fund
Direct PRP Fund
Environmental Quality Restoration Fund
Regulated Substance Response Fund
Hazardous Substances Mitigation Fund
Trust and Agency Account Fund
Water Quality Assurance Revolving Fund
Hazardous Substance Cleanup Bond Fund
Hazardous Waste Control Account
Environmental Response Revolving Fund
Hazardous Waste Management Fund
Oil and Hazardous Substance Release
Response Fund
Governor's Office Fund
Hazardous Waste Emergency Account
Environmental Remediation Fund
Orphan Site Account
Hazardous Substance Remedial Action Fund
State Toxics Control Account
Local Toxics Control Account
S
m S S m m S
S m S
m S
S
S
S S
S
S S
m S S
S S m S
S
S m m m m S
S S
S m
m mmSmmmmrn
S m m m m
S S S S m m
S m m
m
m S
S m m
S mm S
m S m m m
S
S = Significant funding source (>20%) m = Minor funding source «20%)
A: Appropriations P- Penalties T: Taxes CR: Cost Recoveries
PF. Private Funds TR: Transfers I: Interest B: Bonds F Fees 0. Other
93
-------
TABLE V-10
*
Uses of State Cleanup Funds
SUMMARY
States are authorized to use their funds for:
• Emergency response (49 States).
• Removals (48 States).
• Remedial action (44 States).
• Studies (44 States).
• CERCLA match (43 States).
• Operation and Maintenance (41 States).
• Program administration (40 States).
• Natural resource restoration (15 States).
• Victim compensation (4 States).
94
-------
TABLE V-10
USES OF STATE CLEANUP FUNDS
Region State
CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
VA
WV
4 AL
FL
GA
Fund
Urban Sites Remedial Action Fund
State Superfund
Uncontrolled Hazardous Substance Sues
Cleanup Bond Fund '"661 7)
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund
Uncontrolled Hazardous Substance Sites
Cleanup Bond Fund (7662 3)
Uncontrolled Sites Fund
Oil and Hazardous Material Response Loan
Hazardous Waste Cleanup Fund
Environmental Response Fund
Environmental Contingency Fund
Petroleum Cleanup Fund
Bond Fund
Spill Fund
Hazardous Discharge Site Cleanup Fund
Remediation Guarantee Fund
Sanitary Landfill Contingency Fund
Environmental Quality Bond Act
Hazardous Waste Remedial Fund
Environmental Emergencies Fund
Hazardous Substance Cleanup Fund
None
Subaccount of the Hazardous Substance
Control Fund
Hazardous Sites Cleanup Fund
Environmental Emergency Fund
Hazardous Waste Emergency Response
Fund
Hazardous Substance Cleanup Fund
Hazardous Waste Management Trust Fund
Water Quality Assurance Trust Fund
Hazardous Waste Trust Fund
SI
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
ER
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
RM
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
SD
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
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
X
X
OM
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
VR CM AD LG
X X
X
X
X
X X X
X X
X X
X X
X X X X
X X
X X
XXX
X X
XXX
X
X X
XXX
X X
X X X X
X
X X
X X
X X
X X X X
X X
VC
X
X
X
X
Sl.Site Investigation ER:Emergency Response RM:Removals CM:CERCLA Match
SD Srudies&Design RA.Rem.Actions OM:Ops.
-------
TABLE V-10
USES OF STATE CLEANUP FUNDS
Region State
•i KY
MS
NC
SC
TN
5 0.
IN
MI
MN
OH
WT
6 AR
LA
NM
OK
TX
7 IA
KS
Fund
Hazardous Waste Management Fund
Pollution Emergency Response Fund
Inactive Hazardous Sites Cleanup Fund
Emergency Response Fund
Cost Share Fund
Hazardous Waste Contingency Fund
Remedial Action Fund
Hazardous Waste Fund
Hazardous Substance Response Trust Fund
Environmental Management Special Fund
Environmental Protection Bond Fund
Environmental Response Fund
MERLA Supertund Account
505 (Funding for Remedial Actions in
DERR)
503 (Emergency Response progam in
DERR. Hazardous Waste Facility Board.
and Hazardous Waste Program/Division)
Environmental Fund
Emergency Response Fund
Remedial Action Trust Fund
Hazardous Waste Site Cleanup Fund
State Remediation Program
Hazardous Waste Emergency Fund
Hazardous Waste Fund
Environmental Trust Fund
Spill Response Fund
Hazardous and Solid Waste Remediation Fee
Fund (Fund 530)
Hazardous Waste Remedial Fund
State Environmental Response Fund
Dry Cleaning Trust Fund
State Water Plan - Contamination
SI
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
x
X
X
X
X
ER
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
RM
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
x
X
X
X
X
SD
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
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
OM NR CM
X X
X
X
X X
X X
X X
X X
X X
XXX
X X
X
X
XXX
X
X X
X
X
X
XXX
X X
X X
AD LG
X
X X
X
X X
X
X X
X
X X
X
X X
X
X
X
x
X
X
X
X
Remediation Account
SI:Site Investigation ER.Emergency Response RM:Removals CM:CERCLA Match
SD:Studies&Design RA:Rem.Actions OM:Ops.&Maim. LGiGrants to Local Govt.
NR:Natural Resourse Restor. AD:Program Admin. VC:Victim Comp. 0:Other
96
-------
TABLE V-10
USES OF STATE CLEANUP FUNDS
Region
10
State
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AK
ID
OR
WA
Fund
State General Funds
Hazardous Waste Remedial Fund
None
Hazardous Substances Response Fund
Natural Resource Damage Recovery Fund
Federal Agreements
Hazardous Waste/CERCLA Account
Environmental Quality Protection Fund
Direct PRP Fund
Environmental Quality Restoration Fund
Regulated Substance Response Fund
Hazardous Substances Mitigation Fund
Trust and Agency Account Fund
Water Quality Assurance Revolving Fund
Hazardous Substance Cleanup Bond Fund
Hazardous Waste Control Account
Environmental Response Revolving Fund
Hazardous Waste Management Fund
Oil and Hazardous Substance Release
Response Fund
Governor's Office Fund
Hazardous Waste Emergency Account
Environmental Remediation Fund
Orphan Site Account
Hazardous Substance Remedial Action Fund
State Toxics Control Account
Local Toxics Control Account
SI
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
ER
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
RM
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
SD
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
RA
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
OM
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
NR CM
X
X
X
X
X X
X
X
X
X
X
X X
X X
X
X
X
X
X X
X
AD
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
LG
X
X
X
X
X
SliSite Investigation ER:Emergency Response RM:Removals CM CERCLA Match
SD Studies&Design RA:Rem.Actions OM:Ops.&Maint. LG Grants to Local Govt.
NR.Natural Resourse Restor AD:Program Admin. VC:Victim Comp 0 Otiier
97
-------
TABLE V-ll
*
State Cleanup Policies and Criteria
SUMMARY
Twenty-four States have promulgated standards which may be applied to hazardous
sites.
Twenty-seven States apply soil standards to determine cleanup levels.
Thirty-seven States apply groundwater standards.
Forty-three States reference ambient quality or background levels.
Forty-three States report using EPA guidelines in determining cleanup levels.
Forty-five States employ risk assessment methods at specific sites.
Forty-nine States apply surface water quality criteria in determining cleanup levels.
Fifty States apply MCLs and/or MCLGs.
98
-------
TABLE V-11
STATE CLEANUP POLICIES AND CRITERIA
Promulgated Water MCLs
Cleanup Quality or Background Risk EPA Groundwater Soil
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
Standards Criteria
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
MCLGs
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Levels
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Assessment
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Guidelines
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Standards Standards Other
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
X
X
X
X X
X
99
-------
Reg
TABLE V-11
STATE CLEANUP POLICIES AND CRITERIA
Promulgated Water MCLs
Cleanup Quality or Background Risk E?\ Groundwater Soil
Sute Standards Cntena MCLGs L*-.els Assessment Guidelines Standards Standards Othe
5 MN X
OH
wi x
6 AR
LA
NM
OK
TX X
[A X
KS
MO
NE X
8 CO X
MT
ND
SD X
UT
WY X
9 AZ X
CA X
HI
NV X
10 AK
ID
OR
WA 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
100
-------
TABLE V-12
*
Public Participation
SUMMARY
• Forty-eight States have public participation procedures; 36 of these States have-
statutory or regulatory public participation requirements.
• Thirty States have a statutory or regulatory responsibility to provide public notice
during site handling.
• Thirty States are required by statute and/or regulation to solicit public comments; an
additional 14 States solicit comments as a matter of policy.
• Forty-six States hold or may hold public meetings or hearings.
• Five States make grants available to citizen groups.
101
-------
TABLE V-12
PUBLIC PARTICIPATION
Reg State
I CT
ME
MA
NH
RI
VT
2 NJ
NY
PR
3 DE
DC
MD
PA
Publx:
Notice
reg
Public
Comment
reg
Hearings
pol
Document
Availability Grants
sut
Other
Public participation is required
as being policy
;a,
Public participation is sometimes ,
sut
pol
sut
reg
stat
sut
none
sut
pol
-
sut
sut
-
sut
sut
sut
none
sut
sut
pol
pol
pol
sut
sut
none
sut
sut sut
pol
sut
•
sut
sut
none none
sut
matter of policy
Public participation is required
as being policy
Notice to municipalities of sites
EPA Procedures used.
as
District gives notice persons direct!
sut
sut
sut
sut
sat
sut sut
affected by the site
Community Relations Coordinators
perform ad hoc participation runctic
VA
WV
4 AL
FL
GA
KY
MS
NC
SC
TN
-
-
sut
pol
sot
reg
pol
sut
pol
sut
-
-
sot
pol
sot
«f
pol
SOI
pol
sut
-
-
pol
pol
sot
pol
pol
sat
pol
sat
sat
-
sut
sut
sat
pol pol
sat
sut
pol
sut
102
-------
TABLE V-12
PUBLIC PARTICIPATION
Reg State
5 0.
IN
MI
MN
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
8 CO
MT
ND
SD
UT
Public
Notice
stat
pol
stat
pol
stat
stat
stat/reg
stat
reg
pol
stat
pol
pol
sat
reg
pol
stat
-
pol
pol
Public
Comment
stat
pol
stat
pol
stat
stat
stat/reg
stat
reg
pol
stat
pol
pol
stat
reg
pol
stat
-
pol
pol
Hearings
stat
pol
stat
pol
reg
reg
stat/reg
stat
reg
pol
stat
pol
pol
stat
reg
pol
stat
-
pol
pol
Document
Availability Grants
stat
pol
stat
pol
reg
stat
stat/reg
stat
stat
pol pol
-
stat
pol
stat
reg
pol
stat
-
stat
pol
Other
VRP btarute provides f'or public net;;;
comment, hearings and document
availability for vduntarv >ites :ni\
Participation on Community \ction
Groups 'CAGsi
Community relation plans ract ~hee:s
responsiveness summaries and a
citizen s information comminee
Policy of precoordmation ot regulator,
revisions with industry trade
organizations and environmental groups
Information - policy
Local community involvement and
notice to local officials.
In practice, until recently, most
voluntary agreements did not include
public participation.
103
-------
TABLE V-12
PUBLIC PARTICIPATION
Public Public Document
Reg State Notice Comment Hearings Availability Grants Other
8 WY - pol - pol - Public participation is informal and
includes commenting on rulemaicmg
and permitting decisions Citizen
commissions at some NPL sites
10
AZ
CA
HI
NV
AK
ID
OR
reg
reg
stat
stat
pol
-
stat
reg
reg
reg
stat
pol
pol
stat
poi
reg
reg
stat
pol
pol
stat
stat
reg
reg
stat
pol
pol
stat
DEQ also has public participation
policies
WA stat reg reg reg stat
104
-------
TABLE V-13
*
Liability Standards
SUMMARY
General
• Forty-three States have retroactive liability.
• Thirty-four States have strict, joint and several liability.
Culpability Standards
• Forty-one States have strict liability.
• Eleven States have a liability standard other than strict or do not specify liability
standards.
Allocation Standards
• Thirty-seven States have joint and several liability; six of these expressly permit
responsible parties to seek apportionment.
• Five States have proportional liability.
• Ten States do not specify allocation standards.
105
-------
TABLE V-13
LIABILITY STANDARDS
Joint and Sot
Region
1
i
3
4
5
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
Retroactive
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
Several Proponional 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
106
-------
TABLE V-13
LIABILITY STANDARDS
Joint and Not
Region
5
6
7
8
9
10
State
Minnesota
Ohio
Wisconsin
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
Retroactive
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
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
107
-------
TABLE V-14
*
Penalties and Damages Available Under State Superfund Statutes
SUMMARY
Twenty-five States provide for punitive damages.
Twenty-two States provide for treble damages.
One State provides for double damages.
Two States provide for one and one-half times damages.
Forty-seven 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.
108
-------
PENALTIES AND DAMAGES
Region
I
TABLE V-14
AVAILABLE UNDER STATE SUPERFUND STATUTES
Sure
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
Punitive Damages
1 1/2 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
Civil Penalties
S25.000/day
None
$25,000/day
None
$10.000
$50,000/day for violations, Sl.OOO/day
continuing violations.
for
$50,000/day (and S50.000-S1 million for
discharge based on substance and quantity)
$25,000/day
$25.000/day
SlO.OOO/day
$25,000 per day per violation
$25,000
$25,000/day maximum, $5,000/day
minimum
$25,000/day
None
$25,000/day for viol, of order
$25,000/day
$25,000/day
$25,000/day
$25,000/day for illegal discharge of haz
waste
$25,000/day for hazardous waste violations
$25,000/day
$10,000/day for failure to pay fees, file
reports, comply with order
109
-------
TABLE V-14
PENALTIES AND DAMAGES AVAILABLE UNDER STATE SUPERFUND STATUT
Region State Punitive Damages Civil Penalties
5 Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Treble
Treble
Treble
None
None
None
Treble
TrebleUo State);
Double(to Pros)
None
None
Treble
Treble
None
Treble
None
None
Double
None
None
None
S50,000/day for the first day of violation. ..
SlO,000/day for each day of continuing
violations
S25,000/day
up to S25.000/day
S20.000/day
SlO.OOO/day
S5,000/day
S25.000/day
Up to $25,000 for failure of PRP to provide
requested information.
SlO.OOO/day - water quality violations.
Sl5,000/day for discharge permit violations.
up to $25,000 for compliance order
violations.
$IO,000/day per violation under nuisance
law.
$25,000/day
$1000/day for failure to notify; $10,000 for
water and air violations.
$10-25,000 hazardous waste; $10,000 water
pollution; $5,000 for solid waste pollution.
$l,000/day
None
None
$l,000/day administrative penalties and
$ 10, 000/day judicial penalties
$25,000/day for viol, of Hazardous Waste
Management Act; $10,000/day viol, of
Water Pollution Control Act.
$10,000/day of violation
$10,000/day
110
-------
TABLE V-14
PENALTIES AND DAMAGES AVAILABLE UNDER STATE SUPERFUND STATUTES
Region
State
Punitive Damages
Civil Penalties
10
Wyoming
Arizona
California
Hawaii
Nevada
Alaska
Idaho
Oregon
Washington
None
Treble
Treble
Treble
None
None
None
Treble
Treble
SlO.OOO/day and S25,000/day for willful and
knowing violations
S5.000/day for failure to comply.
SlO.OOO/day for failure co report release, up
to S25.000/day for CERCLA consent orders
S25,000/day for violating an orderagreemeru
$50,000 (per violation). $10.000 (failure to
report), S100.000 (maximum for knowing
release)
S25.000/day
$500 to $100,000 for first violation, no more
than $100,000 for continued violations
SlO.OOO/day
SlO.OOO/day
S25.000/day
111
-------
TABLE V-15
*
Natural Resource Damages Under State Laws
SUMMARY
Twenty-eight States have authority under State laws to recover NRDs for hazardous
substance sites.
Eight States reported having recovered NRDs under State law.
Seven States reported having such claims currently pending under State law.
112
-------
TABLE V-15
NATURAL RESOURCE DAMAGES UNDER STATE LAWS
Region
1
Sate
CT
ME
MA
NH
Rl
VT
NJ
Authority
Yes
Yes
Yes
No
Yes
No
Yes
Number
Citation Recovered
General authority and dunes of 0
Commissioner (22a-6a)
Title 38 Maine Rev Sat Sec 5
1367
Mass
23-19
NJSA
Gen. UwsCh 21E. s 5 0
1-22(0 0
58 10-23 11 etseq (Spill 1
Amount Number Amount
Recovered Pending Pending
$00 SO
$1.000.000* 0 SO
$0 0 SO
$00 SO
1
Act)
MY Yes Navigaoon Law. Env Cons.
Law. common law St.
nuisance statutes
$20.000.000*
PR Yes Public Policy Environmental Act.
Law *9 and Environmental
Emergencies Fund Act. Law
*8l. Aracle6
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
Yes 7 Del. Code. Ch. 91 0
No
Yes Ann. Code Md. 7-220 0
Yes HSCA Section 507 0
No
No
No
Ye* Fta. Sat 403 141, 161. .726.
.777. 376.121 (coastal oil spills).
and 253.04 (conl reefs)
No
No
Yes Miss. Code Ann. 49-17-43e
$00 SO
$00 $0
SO 0 $0
18 $2.200.000
0 $0
Dash - No Data Available
113
-------
TABLE V-15
NATURAL RESOURCE DAMAGES UNDER STATE LAWS
Region Sue
4 NC
SC
TN
5 (L
IN
MI
MN
OH
WI
6 AR
LA
NM
OK
TX
7 IA
KS
MO
NE
8 CO
MT
ND
SD
Authority
No
Yes
Yes
No
No
Yes
Yes
No
Yes
Yes
No
No
No
Yes
Ye*
Yes
No
No
No
Yet
No
Yes
Number
Citation Recovered
S C Pollution Control Act
State policy 0
PA 451 of 1994 pans 201 and 31 6
Minn. Siat Ch. 115B04 1
Wis Siat. Sec 147 23 0
Arkansas Code Ann 0
8-4-103<3>
TNRCC 30TAC32731.TGLO: 3
3 1TAC 20. 1-20.4. 20.10. TX
Natural Resource Code
40. 107(cX4)
low* Code 455B.392C.
K.S.A. 65-171 U 15
Mom. Cod* Aon. 75-10-701 0
thnuffcm
South Dtkoa Codified Laws 0
Amount Number Amount
Recovered Pending Pending
-
0 SO
SO 0 $0
M. 690.000 5
$91.000 0 SO
SO 0 SO
SO 0 SO
5
$150.000 4 < $10.000
$0 1 $713.000.000
SO 0 $0
Chapters 34A-2-75; 34A-U-14:
34A-10
Dash =» No Data Available
114
-------
TABLE V-15
NATURAL RESOURCE DAMAGES UNDER STATE LAWS
Number Amount Number Amount
Region Sate Authority Citation Recovered Recovered Pending Pending
8 UT No
WY No
9 AZ N'o
CA Yes - J58,000.000
HI Yes MRS 128D-* 0 $00 SO
NV No
10 AK Yes AS 46 04 040 (5)
ID No
OR Yes . ORS 465 255 0 SO 0 SO
WA Yes RCW 70 105D040i2> - - 0 SO
Dash » No Data Available
115
-------
TABLE V-16
*
Natural Resource Damages Activities Under CERCLA
SUMMARY
Thirteen States reported having recovered NRDs under CERCLA.
Eleven States have CERCLA NRD claims pending.
116
-------
TABLE V-16
STATE NATURAL RESOURCE DAMAGES ACTIVITIES UNDER CERCLA
Number Amount Number
Region Sute Recovered Recovered Pending
: CT
ME
MA •* S22.600.000 2
NH
RI 0 SO 1
VT
2 NJ 5 S6. 692.000 5
NY
PR
3 DE 1 S600.000 0
DC
MD
PA 0 $0 2
VA
wv
4 AL
FL
GA
KY
MS
NC
SC 1 $3.000.000 . 0
TN
5 IL
IN 12 $3.800.000 6
MI
•\mount
Pending
SO
SO
S10000000
SO
$7.000.00-
117 '
-------
TABLE V-16
STATE NATURAL RESOURCE DAMAGES ACTIVITIES UNDER CERCLA
Region
5
6
7
8
9
10
Sate
MN
OH
Wl
AR
LA
NM
OK
TX
[A
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
CA
HI
NV
AX
ID
OR
WA
Number .Amount Number .Amount
Recovered Recovered Pending Pending
1 - 0 $0
S200.000 2
1 $200.000 0 $0
2 - 4 -
5 $5.700.000 2
0 $0 1 S713.000000
1 $37,000,000 0 $0
2 $46,000.000
2 $5,000,000 0 $0
4 $45.000.000 3 Several Million
118
-------
TABLE V-17
*
Property Transfer Provisions
SUMMARY
Twenty-five States report that they have mandatory property transfer provisions, up
from 23 in 1993 and 18 in 1991. This total does not include States that simply maintain
a database of contaminated sites unless they also have some other property transfer
provisions, nor does it include States that have property transfer provisions
associated only with participation in their voluntary cleanup programs.
Seventeen States have provisions that require deed recordations where hazardous
sites have been either discovered, listed, or cleaned up.
Sixteen States require disclosure by sellers to purchasers.
Two States require cleanup or cleanup commitments in connection with transfers or
sales of industrial establishments.
Fifteen 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.
119
-------
TABLE V-17
PROPERTY TRANSFER PROVISIONS
Disclose Examine Cleanup
Record before before at
Reg.
1
•>
3
4
State
CT
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
MS
NC
Authority on Deed Transfer Transfer Transfer Databasi
22a- 134, as amended bv Pub Act X X X X
95-183
P L 1991 Chapter 81, L.D. 156; X \
P L. 355. 1993, MRS 343-E.F.
X
HWCF X
Haz. Waste Mgmt Act, Industrial X \
Prop. Act
Industrial Site Recovery Act XXX X
Abandoned Sites Act X X
Haz. Subs. Cleanup Act, DCA X
9115
HSC A Section 5 12 X X
Haz. Waste Reg. 47CRS3S X X
Hazardous Site Response Act X X
K.R.S. 224.01-400 X X
Mis* Code Ann. 89-1-501 to 503 X
N.C. GenStat. 130A-310.8; Also X X
residential property disclosure
act. 1995
SC HWMA
120
-------
TABLE V-17
PROPERTY TRANSFER PROVISIONS
Disclose Examine Cleanup
Reg.
4
5
6
7
8
9
State
TN
IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
TX
IA
KS
MO
NE
CO
MT
ND
SD
UT
WY
AZ
Authority
Term Code Ann. 68-2 12-209
Illinois Public Act 86-679
Ind Code sec. 13-7-22.5
PA 451 of 1994, pan 201
Minn. Stat. Ch. 115B.17
Wis Stat Sec. 144.765
LRS 30:2225F(1): 2281. LAC
33:35258.
Texas Property Code, Ch. V
Groundwater Hazard
Documentation Law
Hazardous Waste Management
Law 260.465
Environmental Quality Act
Record before before at
on Deed Transfer Transfer Transfer Database
X X
X X
X X
XXX X
XX X
X
X X
X
X X
XX X
X
121
-------
TABLE V-17
PROPERTY TRANSFER PROVISIONS
Disclose Examine Cleanup
Record before before at
Reg. State Authority on Deed Transfer Transfer Transfer Databs
9 CA Cai. Health & Safety Code X
25359 7
HI
NV
. 10 AK
ID
OR ORS 465 255(0 X
WA
122
-------
TABLE V-18
*
Voluntary Cleanup Authorities
SUMMARY
Thirty-one States have voluntary cleanup programs.
Twenty-four States have statutory authority for their programs.
Eight States established their programs through regulation or policy.
123
-------
VOLUNTARY CLEANUP AUTHORITIES
Reg.
Slate
CT
Established
Authority
Citation
Relationship
to State Program
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
VA
WV
AL
FL
GA
KY
1995 Statute
1993 Statute
Statute; Regulation
1993 Regulation
1992 Regulation
1994 Policy
1994 Guidance - 1994;
Statute - 1995
1995 Statute
1995 Statute
1995 Statute; Policy
PA 95-183, section 3
Maine Rev. Stat. Sees.
343-E&F
Mass. Gen. Law. Ch. 2IE,
Mass. Contingency Plan (310
CMR 40.0000)
NJAC 7:26C
Organization and Delegation
Memorandum 94-32
7 Del C Chapter 91
Component of the cleanup
program
Alternative cleanup prograr
Component of the cleanup
program, also maintain a
covenant not :o sue proeran
Component of the cleanup
program
Component of the cleanup
program
Alternative cleanup profran
Component of the cleanup
program
35 P.S. Section 6026.101 « Component of the cleanup
seq. program
Code of Va. 10.1-1429.1 to Component of die cleanup
1429.3 program
22-30 A-1 (general program
authority)
Multi-program effort
between CERCLA, RCRA,
and Groundwater offices
124
-------
Reg.
4
TABLE V-18
VOLUNTARY CLEANUP AUTHORITIES
State
MS
NC
Established
Authority
Citation
Relationship
to State Program
TX
IA
KS
1987
1995
Statute
sc
TN
IL
IN
MI
MN
OH
WI
AR
LA
NM
OK
1989
1994
1986
1993
1991
1988
1994
1994
1995
1990
Guidance
Statute
Statute
Statute
Statute
Statute
Statute
Statute
Policy - Currently In
Draft
Statute - Implementation
Pending
Statute
Statute
N.C. Gen. Stat. 130A-310 9
(original program); 310.12
(1994-95 amendments adding
program for privatizing
voluntary cleanup and
oversight)
Term Code Ann. 68-212-224
22 2 (m) of Environmental
Protection Act
tad. Code sec. 13-7-8.9(1993)
PA 451, part 201
Minn. Stat. Ch. 115B.17.
Subd. UandCh. 115B.175
Ohio Revised Code 3746
Wis. Stat. Sec. 144.765
Component of the cleanup
program
OK Stat. Ann. Tit 27A:
2-3-506 and 75 OS 1991,
Section 309(d)
Texas Solid Waste Disposal
Act, Subchapter S, Chapter
361, Health and Safety Code
Component of the cleanup
program
Component of the cleanup
program
Component of the cleanup
program
Alternative cleanup program
Component of the cleanup
program
Component of the cleanup
program
Alternative cleanup program
Component of the cleanup
program
Component of the cleanup
program
Alternative cleanup program
125
-------
10
TABLE V-18
VOLUNTARY CLEANUP AUTHORITIES
Reg
'
State
MO
Established Authority
1994 Statute
Citation
Mo. Rev Stat.
260.565-260 575
Relationship
to State Program
Administered by separate
unit, but works with
Superfund Section
NE 1995 Statute
CO 1995 Statute
MT 1995 Statute
ND
SD
UT
WY
AZ
CA
1991 Statute
1992 Statute
1994 Policy
HI
NV
AK
ID
OR
WA
1994
Policy
1991 Policy; Guidance
1993 Regulation
LB 1349, 81-15,181 to
81-15,185
Voluntary Cleanup and
Redevelopment Act of 1995
Colorado Revised Statute
25-16-301 etseq.
Mont. Code Ann. 75-10-730
738(1989. as amended 1991,
1993. and 1995)
Voluntary cleanup program
only
Voluntary cleanup program
only
Component of the cleanup
program
Utah Code Ann. 19-6-301 et Component of the cleanup
seq. program
Arizona Rev. Stat. Sec.
49-285. B
Component of the cleanup
program
Component of the cleanup
program
Voluntary cleanup program
only
WAC 173,340,550 (7)
Complements orphan and
enforcement programs
Alternative cleanup program
126
-------
TABLE V-19
*
Voluntary Cleanup Programs
SUMMARY
Twenty-one States define eligibility in terms of who may participate in the program.
Twelve States define program eligibility by which sites may be included in the
program.
Twenty States use some form of liability or enforcement waivers as program
incentives.
Seven States are more responsive to participant needs or guarantee less oversight.
Seven States provide some form of financial incentives such as loans, tax credits, State
payment of orphan shares, or statutory cost caps.
Five States will not submit the site to the NPL, will not place the site on the State list,
or will take the site off the State list
Fourteen States prescribe fees on participants.
Fifteen States require participants to reimburse the State for all oversight costs.
Nine States use appropriated funds from a general fund for the programs.
Two States use funds from the State cleanup fund for the program.
127
-------
Reg
State
CT
ME
MA
TABLE V-19
VOLUNTARY CLEANUP PROGRAMS
Eligibility
Owners of establishments
iproperty transfer sites); sites
on dynamic inventory,
municipalities
Anvone
Anyone, for covenants not to
sue. only prospective
purchasers and tenants
Incentives
Early decision whether DEP
or licensed environmental
professional will review
investigation and cleanup
Certificate from state
Streamlined cleanup process.
no waiting for state
oversight, clear endpomu:
covenants not to sue
Funded by
Filing fees
Partially through
dedicated account and
partially by fees paid by
the owner
Permit fees and
compliance fen
Fee
S2000
$500 minimum
•plus iny
additional state
costs
Varies
NH
RI
Anvone •
Non-RPs can receive
covenant not to sue
General program
None
VT
NJ
NY
PR
DE
Anyone
Owners/operators under
certain circumstances:
lenders: municipalities
All sues
No Further Action leoer
Cleanup levels based on
intended use: release from
liability
Release from liability for
prosecuve purchasers; No
Further Action Letter
Oversight Fee
Oversight costs paid by
volunteer
Cost recovery for
oversight
Yes
None
Reimburse state
costs
DC
MD
PA
VA
All sues
Sites where remediation »
not mandated pursuant to
CERCLA. RCRA (Subtitle
C. D, I). Virginia Waste
Management Act. or
Virginia Water Control Law
Waiver of liability if
completed in accordance
with State standards; Loans
from PA Department of
Commerce for site
assessment
Certification of satisfactory
completion of remediation
gives immunity from future
state enforcement action
General fund and fees
$250
PRP
Lesser of 1 %
of remediation
cost or $5.000
128
-------
TABLE V-19
VOLUNTARY CLEANUP PROGRAMS
Reg.
3
Eligibility
Inactive sites with no current
enforcement action
Incentives
Lower oversight costs and
speed
Funded by
Reimbursable oversight
costs
Fee
Reimburse state
costs
FL
GA
KY
MS
NC
Any PRP
S3.000.000 cap on remedial
action costs, avoidance of
CERCLA
General Fund
None
SC Any PRP or potential
purchaser
TN All sites covered by State
program
0. Non-NPL. non-RCRA, and
non-enforcement sites
No public hearing: not
placed on list: no notice on
deed: payment of orphan
shares: letter releasing
liability: no liens
EPA is responsive to
participant time frames or
deadlines
Contingency Fund, and
appropriations
Fee for service
Fee for services
rendered
None
S5.000 fee and
actual costs
Actual salary
expenses pm
overhead
IN Anyone not under a pending
enforcement action or
emergency conditions
MI Anyone
Anyone
Certificate of completion:
covenant not to sue
Letters of completion:
removal from list of
contaminated sites
Techmcjl assistance (staff
review and guidance
documents): a menu of
liability assurances and
financial assistance (by other
state agencies)
Fees and cost recovery
Publicly funded, unless
responsible party enters
into an administrative
order on consent with
the state and agrees to
pay for state review
Sate appropriations and
reimbursement of
oversight costs
$1000 ptos
additional state
costs
None
Approximate!1.
S70/hr
129
-------
Reg
5
State
OH
WI
AR
LA
NM
OK
TX
TABLE V-19
VOLUNTARY CLEANUP PROGRAMS
Eligibility
All sites, except NPL sites.
sites subject to the solid or
hazardous waste laws, the
underground storage tank
law or chose subject to
OEP-V enforcement action
Purchasers who have
investigated in accordance
with state regulations
-Ml property owners and PRP
Any site not subject to a
permit or order: any person
may apply to enter the
program
Incentives
Mo state oversight though
audits are possible: No
Further Acoon Letters issued
by certified private entities:
covenants not to sue: loan
money available, tax credits
Limited liability
Participation could defer or
preclude N'PL status
No enforcement action may
be initiated once in program:
quicker review and approval
of low-priority sues; liability
protection for lenders and
future land owners
Funded bv
Fees from participants.
and professionals and
labs seeking certification
Currently unfunded.
proposing to collect fees
By participant
Program establishment -
State and Federal Funds.
Program Operation -
Applicant Fees
Fee
Fee chan
Proposed
Case bv case
S1000
i S60 80/hr after
expenditure of
me fee)
IA
KS
MO
CO
All sites except: imminent
and substantial threat: PA/SI
performed and awainng
potential NPL listing; RCRA
facilities: enforcement action
under other laws
Anyone
AJ1 sites except UST sites,
RCRA sites. NPL sues, and
CWA sites
MT Any person or entity
'Clean Letter" issued by
DNR
Letter mrtiriring that ur has
been cleaned up to stale's
satisfaction
State notice that no further
action is needed
No Further Action Letter
Participants pay state
costs
PRP
Fee
Cost recovery of actual
state costs from
participant
Actual staff
time x 2 5.
$5000 deposit.
$200
application fee
$5000
application fee.
$5000
participation
fee
$2000 per site
Reimburse state
costs
130
-------
Reg.
State
ND
SD
UT
TABLE V-19
VOLUNTARY CLEANUP PROGRAMS
Eligibility
Any RP
Incentives
Funded bv
State acknowledgement letter
RPs or state general
funds
Fee
$60 hour
WY
AZ
CA
HI
NV
Any person other than the
State
Sites with low threat levels
PRPs
Enhances volunteer s cost
recovery capability; covenant
not to sue possible
Sites are not listed and
responsible parties have
more control over cleanup
Civil penalties will not be
assessed
Reimbursement from
volunteer
Responsible party
reimburses state costs.
including indirect costs
State cleanup fund
Reimburse
Reimburse
costs
10
AK
ID
OR
WA
Anyone wanting to move a
cleanup forward
Any PLP who submits a
cleanup report with a fee
State provides technical
assistance: No Further
Action Letter
Timely review of cleanup
report and written
determination
Cost recovery
Hourly rate tor
staff oversight
Fees paid by participants 2% of cleanup
costs - $1000
min/S15.000
max.
131
-------
TABLE V-20
*
Brownfields Programs
SUMMARY
The number of States with formal brownfields programs is 15.
Nine of those programs are instituted by statute.
Seven States are in the process of developing brownfields programs.
Three States have made their brownfields programs a part of their voluntary cleanup
program.
Five States with no formal brownfields program make their voluntary cleanup
program available for such cases.
Some States' brownfields programs use specific criteria for abandoned sites, while
others open brownfields activity to all sites.
132
-------
Reg.
1
State
CT
Program
Yes Statute 22a-l33m
TABLE V-20
BROWNFIELDS PROGRAM
Authority
or Approach
Catena
ME
MA
NH
RI
VT
NJ
NY
PR
DE
DC
MD
PA
No
Yes
No
Yes
Yes
No
No
Yes
Covenant Not To Sue (CNTS)
program and ongoing development
of more comprehensive strategy
legislation pending
Industrial Property Remediation and
Reuse Act
Yes 10 V S.A.
Spill Act and S.
58:tOB)
1070 (NJSA
currently forming program by
policy under statutory authority
LRAERSA 35 P.S. Section
6026.101 et seq.
sues must be in distressed community and must
have a high economic development potential, as
determined by the Department of Economic
Development
CNTS program eligibility limited to Economic
Target Areas and other projects that provide
"exceptional economic development
opportunity"
all sites: however, state may provide low
interest loans from a "tire site remediation
account" for work on 'properties of critical
economic concern" designated by Department
of Economic Development
abandoned or substantially underutilized
properties where development is proposed by
independent panics; CERCLA sites are
excluded (program starts January 1996)
any sites; Econ. Development Admin.
administers $50M Hazardous Discharge Site
Remediation Fund which offers low interest
loans for cleanup
No voluntary cleanup program available
No
Yes pan of voluntary cleanup program
tax breaks for bringing new business and
employment to remediated sites
expected criteria will be low to medium pnonty
sites that can readily be prepared for
redevelopment
part of the Voluntary Cleanup Program, so all
sites are eligible; emphasis on "Special
Industrial Areas," defined as orphan sues, sues
with bankrupt owners, or within
State-designated enterprise zones
VA
No
133
-------
Reg.
3
4
State
WV
AL
FL
GA
KY
Program
TABLE V-20
BROWNFIELDS PROGRAM
Authonty
or Approach
Catena
unknown
No under development: North
Birmingham is a brownfield pilot
project
No state provides technical assistance to
help expedite cleanup at potential
brownfields sues
No none currently; a state
representative will introduce
brownfields legislation in January
1996
No currently forming program by
policy; participating in City of
Louisville initiative
MS
NC
SC
TN
IL
IN
MI
MN
OH
Wl
AK
No
No
No
No
Yes
Yes
Yes
Yes
Yes
No
Yes
informal, developing guidelines
within City of Louisville empowerment zone
receptive to proposals for specific
sites
developing brownfields policy as
pan of cleanup program
trying to involve brownfield sites in
voluntary program;
statute: Title XVII of
Environmental Protection Act;
policy
program aimed at non-PRPs
policy
201
t: PA 431, pats 193, 195 aid
carried out under the Voluntary
Investigation & Cleanup Program
(VTQ
part of voluntary cleanup program
statute. A.C.A. 8-7-523
all except those covered by RCRA, NPL. or
under court order
unused industrial or commercial propenies with
actual or suspected environmental contaminants
ecooaaucaBy distressed areas and potential for
redevelopment; specific criteria for grants
any site involved with an investigation/cleanup
being conducted by a voluntary party
sites" as defined by statute
134
-------
TABLE V-20
BROWNFIELDS PROGRAM
Authority
Reg. State Program or Approach Criteria
6 LA No
NM No seeking to develop a voluntary
cleanup program chat will also
address brownfields
OK No under development: some sues
redeveloped under the voluntary
cleanup program
TX No voluntary cleanup program available incentives provided to voluntary cleanup
program applicants include many of those
found in a brownfields program
7 IA No
KS No
MO Yes statute: Mo. Rev Stat. 447 700 - must be abandoned for 3 years and be owned by
447.718 (economic development a governmental entity (e.g St. Louis tax
program; consultation required with forfeiture properties)
DNR)
NE No
8 CO No participating in pilot EPA sites pilot EPA sites
MT No
ND No
SD No state will assist communities in
obtaining federal brownfields grants
and funds
UT No redevelopment of industrial
properties is strongly encouraged
under the voluntary cleanup
program
WY No
9 AZ No targets brownfidd sites through its
voluntary cleanup program
CA No targets brownfields through VCP,
CalSite Validation Program, Annual
Workplan sites, AB 2061 Site
Designation, SB 923
135
-------
TABLE V-20
BROWNFIELDS PROGRAM
Reg.
9
10
State
HI
NV
AK
ID
OR
Program
No
No
No
No
Yes
Authonry
or Approach
policy: pan of voluntary cleanup
Catena
•
no specific cntena other than
WA
No
program
independent cleanups, purchaser
agreements, repayment agreements
commercial/industrial properties which
redeveloped after cleanup
136
-------
TABLE V-21
*
Brownfields Sites
SUMMARY
The number of sites identified through brownfields programs ranges from 0 .
(Vermont and Arkansas) to 700 (Minnesota).
The number of redevelopments underway in brownfields programs ranges from 0
(Alabama, Arkansas, Colorado, South Carolina, Vermont) to 400 (Illinois).
Committments for redevelopment range from 0 (Alabama, Arkansas, Vermont) to 79
(Michigan ~ 58 are Covenant Not to Sue and 21 are site reclamation grants).
One State noted that two redevelopments have been completed.
The numbers provided by Illinois, Minnesota, Ohio, and Oregon reflect all their
voluntary cleanup program sites, some of which are specifically brownfields.
137
-------
TABLE V-21
BROWNF1ELDS SITES
Region
1
States
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
Sites Redevelopments Committments
Identified Underway for Redevelopment
34 30 (2 have been 30
completed)
27 27 27
10 2 3
000
U U U
19 6 13
10 10 10
U U U
1 0 0
1 1 1
1 0 I
400-500 400 U
70 70 U
121 70 58CNTS, 21 site
• &.**! M*M/«»i ssv* rtf*mtc
U = Unknown
138
-------
Region States
5 Minnesota
Ohio
Wisconsin
6 Arkansas
Louisiana
New Mexico
Oklahoma
Texas
7 Iowa
Kansas
Missouri
Nebraska
8 Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
9 Arizona
California
Hawaii
Nevada
10 Alaska
Idaho
Oregon
Washington
TABLE V-21
BROWNF1ELDS SITES
Sites
Identified
Redevelopments
Underway
Committments
for Redevelopment
700
U
0
300
U
0
U, but most in
program
L"
U
U
U
100 +
110+ Active
VCP sites
U
U = Unknown
139
-------
TABLE V-22
*
Federal-State Partnerships
SUMMARY
The majority of States surveyed, 47, have Site Specific Cooperative Agreements
(SSCA).
Forty-six States have Core Program Cooperative Agreements (CPCA).
Twenty-seven States have approved Superfund Memoranda of Agreement (SMOA);
seven States are negotiating Superfund Memoranda of Agreement.
140
-------
TABLE V-22
FEDERAL-STATE PARTNERSHIPS
Region
1
2
3
4
5
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
SSCA
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
CORE
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
SMOA SMOA
Approved Negotiating
X
X
X
X
X
X
X
X
X
X
X
X
141
-------
TABLE V-22
FEDERAL-STATE PARTNERSHIPS
Region
5
6
7
8
9
10
State
Minnesota
Ohio
Wisconsin
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
SSCA
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
CORE
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
SMOA SMOA -
Approved Negotiating
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
142
-------
Chapter VI
State Summaries
This chapter presents concise summaries of each State's cleanup program. The States
are grouped by U.S. EPA Regions. Ten program elements are described in each of the-
summaries as follows:
• Sites - numbers of final, proposed, and deleted NPL sites, and numbers of
State sites (non-NPL) that are known and suspected, identified as needing
attention, and included on an inventory or priority list.
• Statutory Authorities - legislation providing cleanup, funding, and
enforcement authorities.
• Program Organization and Funding - State agencies responsible for cleanup
activities, including numbers of program and legal staff, and sources of
administrative funding.
• Cleanup Activities - information on numbers of cleanup actions at NPL and
non-NPL sites.
• Cleanup Funding - information on State funds or funding mechanisms,
sources of funds, and fund balance, additions, obligations and expenditures
for the fiscal year 1995.
• Cleanup Polices and Criteria - information on State cleanup policies and
criteria used to determine cleanup levels and/or to select a site remedy.
• Public Participation - information on State regulatory requirements, policies,
and ad hoc practices for public participation in the State cleanup program.
• Enforcement - information on statutory provisions for State enforcement
actions, liability standards, cleanup penalties and damages, natural resource
damages, and property transfer restrictions.
• Voluntary and Brownfields Programs - information on State programs for
voluntary cleanup of sites and for rehabilitation of industrial sites.
• Federal/State Partnerships - lists existing agreements between the State and
U.S. EPA concerning cleanup grants and procedures; specific agreements are
Superfund Memorandum of Agreement (SMOA), Core Program Cooperative
Agreement (CPCA), and Site - Specific Cooperative Agreement (SSCA).
143
-------
R
EGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
144
-------
CONNECTICUT
SITES
NPL Sites State Sites
Final: 15 Known and Suspected: 2440
Proposed: 0 Identified as Needing Attention: 649
Deleted: 1 On Inventory or Priority List: 11
STATUTORY AUTHORITIES
The Public Act 87-561, codified at Conn. Gen. Stat. §22a-114 and §§22a-133a through
133k (1987, as amended 1989), creates the State Superfund program, and authorizes fund
expenditures, cost recovery, and a priority list.
The Emergency Spill Response Fund, 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, P. A.95-208, transferred this fund to the
General Fund as of July 1,1995.
The Transfer of Hazardous Waste Establishments Program, Conn. Gen. Stat §§22a-
134 through 134e (1985), creates a property transfer program. §22a-134 was amended
10/1/95 by PA 95-183.
The Water Pollution Control Laws, Conn. Gen. Stat. §§22a^l32, 22a-433 (1967 and
subsequent amendments), provide authority for administrative cleanup orders.
The Urban Sites Remedial Action Program, Conn. Gen. Stat §229-133m (1992, amended
1993), provides funding to clean up urban industrial sites and restricts property transfers.
A voluntary cleanup program was authorized by P. A. 95-190, which also authorized
a Licensed Environmental Professionals program.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection, Bureau of Water Management,
Permitting, Enforcement and Remediation Division includes 51 staff members associated
with remedial activities. The Attorney General's office provides legal support with attorneys
working part-time on State Superfund and enforcement of remedied action orders (2-3 FTEs).
Funds for staff and administration are from the State general fund (22%), Federal grants
(40%), State Cleanup Fund (37%), and a Fee Fund (2%).
CLEANUP ACTIVITIES
The State inventory of 649 sites includes at least 63 sites that have been cleaned up.
Approximately 2440 sites are in the discovery stage, under consideration for listing on the
inventory. Several hundred remedial actions are underway at non-NPL sites, 11 of which are
State-funded. The State does not have a reliable estimate of the number of RP-funded
remedial actions that have been completed since the start of the program. Twelve remedial
145
-------
actions are underway at NPL sites and none were completed during FY95. Two removal
actions are underway at NPL sites. No removals at NPL sites were completed during FY95
and four NPL removals have been completed since the start of the program.
CLEANUP FUNDING
Funding vehicles include the State Superfund and the Urban Sites Remedial Action
Fund. Sources for the two funds are general obligation bond funds authorized by Special
Acts in 1986,1987,1989,1991,1993 and 1995. The Emergency Spill Response Fund (ESRF)
was transferred into the State General Fund as of 7/1/95, by P. A. 95-208. The ESRF was
funded by a generator tax and hazardous waste civil penalties and criminal fines. This fund
was administered in, and primarily used by the Oil and Chemical Spills Response Division
of the Waste Management Bureau. The ESRF could be used for studies and design,
emergency response, removals, remedial actions, and CERCLA match.
The State Superfund had a balance of $7,575,000 at the end of the fiscal year
(6/30/95). Nine millon dollars was added to the State Superfund for FY96 and another $9M
in bonds is authorized for FY97. The amount spent during FY95 was not available, but the
State obligated $4M. The fund monies may be used for site investigation, studies and design,
removals, remedial actions, CERCLA match, O&M, grants to local government, 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 non-compliance with or appealing an order.
The Urban Sites Remedial Action Fund had a balance of $3M (6/30/95) and $10M
was added during FY95. Fourteen million dollars was obligated for non-NPL sites from the
USRAF. The fund may be used for the same activities as the State Superfund except CERCLA
match, O&M, and grants to local government.
CLEANUP POLICIES AND CRITERIA
Remediation Standard Regulations setting cleanup standards for hazardous waste
sites became effective Jan, 30,1996. These regulations include groundwater and soil cleanup
standards, and procedures for establishing criteria for substances for which numerical
standards were not adopted. Typically, the risk levels are 10^ and Hazard Index of 1.
Background concentrations in excess of numeric criteria may be taken into consideration in
certain circumstances. Prior to adoption of the regulations, cleanup criteria were determined
on a site-by-site basis, applying water quality criteria and MCLs where appropriate.
PUBLIC PARTICIPATION
The Remediation Standard Regulations 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 polluted soil. For State-funded
146
-------
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 available include strict, joint and several, and retroactive liability,
orders for information and site access, subpoena authority, administrahve and consent order
authority, injunctive action and cost recovery authority. Civil penalties of $25K per day are
available under the hazardous waste program, IVi rimes punitive damages are available in
cost recovery actions. A property lien provision is also available. 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 natural resource damage claims, but no
Natural Resource Damages program has been established.
Property Transfer
The Property Transfer Act 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. There is
also a State-maintained database of known or listed sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has a voluntary cleanup program (established October 1,1995, by PA 95-
183, §3) in which owners of establishments (property transfer sites), sites on the dynamic
inventory, or municipalities can participate. The DEP decides whether the DEP or a licensed
environmental professional will review the investigation and cleanup. The program is
financed by riling fees. 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 Thirty
four sites have been included in the program, 25 of which are private party funded. Cleanup
is underway at 30 sites, and two sites have been completed.
FEDERAL/STATE PARTNERSHIPS
For FY95, Connecticut has a CPCA and SSCAs with U.S. EPA.
147
-------
MAINE
SITES
NPL Sites State Sites
Final: 11 Known and Suspected: 419
Proposed: 1 Identified as Needing Attention: 92
Deleted: 0 On Inventory or Priority List: 419
STATUTORY AUTHORITIES
The Uncontrolled Hazardous Substance Sites Act, Maine Rev. Stat. §§1361 through 1371
(1983, as amended 1985,1987, and 1990) provides for a cleanup fund and enforcement
authorities.
An Act to Assist in the Cleanup of Contaminated Property, P.L. 1991, Ch. 81, L.D. 156
(May 6,1991) protects innocent landowners from liability for cleanups of spills caused by
others.
P.L. 355,1993, Maine Rev. Stat. §§343-E and 343-F (1993) amended several of DEP's
authorities for regulating hazardous waste and created a new property transfer program, as
well as a program for voluntary cleanup of hazardous waste sites.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection, Bureau of Solid Waste Control,
Division of Site Investigation and Remediation, has 21 staff members. 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 (29%), State cleanup funds
(61%), and the State general fund (10%).
CLEANUP ACTIVITIES
Maine has four remedial actions underway at NPL sites. Two NPL remedial actions
have been completed since the start of the program, one of them in FY95. Twelve removals
have been completed at NPL sites since the start of the program, two of them in FY95. At
non-NPL sites, five remedial actions are underway. Seven remedial actions were completed
at non-NPL sites during FY95 and 17 have been completed since the start of the program.
Three removals were completed at non-NPL sites during FY95, and 31 have been completed
since the start of the program.
CLEANUP FUNDING
Maine uses two accounts for cleanup funding: (1) The Uncontrolled Sites Bond
Account, which contained approximately $5M, as of 10/95; and (2) The Uncontrolled Sites
Fund, which contained $4.5M as of 10/95. Expenditures from the Bond Fund totalled
148
-------
$301,295 in FY95 and the State obligated an additional $85,830 from the Bond Fund. No
funds were added to the Bond Fund during FY95. The State spent $430,762 from the
Uncontrolled Sites Fund during FY95 and $425,787 was added to it during the fiscal year.
Both funds may be used for site investigation, emergency response, removals, studies and
design, remedial actions, natural resource restoration, O&M, 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
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State's voluntary program (38 MRSA §§343-E and 343-F) is an alternative to the
State 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 what was done at the
site. Incentives for participation include: getting sites back into economic use and getting a
certificate from the State stating cleanup was completed to the State's satisfaction.
The State has no brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Maine has a CPCA, a SMOA, and SSCAs with U.S. EPA.
150
-------
MASSACHUSETTS
SITES
NPL Sites State Sites
Final: 30 Known and Suspected: 7,500
Proposed: 0 Identified as Needing Attention: 4,500
Deleted: 1 Priority List (Tier I sites): 380
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), provides for strict, joint and
several liability; retroactive liability; site access, information and administrative order
authority; injunctive relief; civil and criminal penalties; cost recovery and treble damages;
priority liens; citizen suits; thresholds for notification of releases; opinions by Licensed Site
Professionals regarding the adequacy of response actions; permits for certain response
actions; permit and annual compliance assurance fees; covenants not to sue; contribution
protection; mandatory dispute resolution mechanism for contribution claims; right-of-entry
for private parties conducting response actions; limitations to liability for secured lenders,
fiduciaries, and municipalities; exemption from liability for innocent homeowners; and
Commonwealth acquisition of property and recording of restrictive covenants.
PROGRAM ORGANIZATION
The Department of Environmental Protection's Waste Site Cleanup Program has 206
full time equivalents. 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, fourteen attorneys from DEPs Office of
General Counsel and five attorneys in the Attorney General's office provide enforcement
support, and scientists in DEPs Office of Research and Standards provide risk assessment
support at specific sites and in regulation and policy development The Program is funded
by the State General Fund (56%), federal grants (27%), and other sources (17%).
CLEANUP ACTIVITIES
More than 3,200 assessments and cleanups have been completed at non-NPL sites and
spills in Massachusetts since the cleanup program was overhauled in 1993. One hundred
twenty-six remedial actions are currently underway at non-NPL sites. During the last two
fiscal years 2^30 removals have been completed at non-NPL sites. One NPL site has been
de-listed and 17 remedial actions have been completed at NPL sites since the start of the
program. Three remedial actions were completed at NPL sites during the 1995 fiscal year
(FY95), and 15 remedial actions are currently underway at NPL sites.
151
-------
CLEANUP FUNDING
Bonds fund public response actions. DEP has spent about $85M since 1983; an
additional $100M was authorized for the program in November 1995. Bond funds may be
used for site investigation, studies and design, removals, emergency response, remedial
actions, CERCLA match, O&M, and grants to citizen groups and local government for
technical assistance. Hazardous waste transporter fees (approximately $6M/yr) are used for
debt service. A total of $9.5M was expended from the Bond Fund during FY95 (7/1/94 -
6/30/95), $7.5M for non-NPL sites and $2M for NPL sites.
CLEANUP POLICIES AND CRITERIA
Permanent solutions require the elimination of significant risk of harm to health,
safety, public welfare and the environment. 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) establish three methods for
characterizing risk at disposal sites. One method relies on numeric cleanup standards for 105
chemicals in three groundwater categories and three soil categories. The other methods
establish cleanup goals based on site-specific conditions and/or quantitative risk assessment
For sites at which 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 one in one hundred thousand (10"5). The noncancer risk limit is
expressed as a Hazard Index equal to 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.
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 involvement in 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. Administrative orders have not been used
frequently, due to the appeals process. The rate of voluntary cleanups is high (95%), which
program staff attribute to the statute's provisions for priority liens, treble costs and annual
compliance assurance fees which are assessed for every year a site is in the cleanup process.
152
-------
The 1992 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 Resources Damages
Massachusetts' natural resource damages program began in 1983, and a total of
S22.6M has been recovered by Federal and State trustees at 4 NPL sites. Two restoration
actions are in the planning process.
Property Transfer
Massachusetts has no property transfer provision, but does have authority for a
superlien and maintains a database of sites that is publicly available.
VOLUNTARY AND BROWNFIELDS 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
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
other projects that provide "exceptional economic development opportunity." Covenants
have been signed for 15 sites and 12 more are pending; all 27 have redevelopment
commitments. A brownfields task force currently is looking at expanding the covenant not to
sue program.
FEDERAL/STATE PARTNERSHIP
For FY95, Massachusetts has one MSCA covering 22 sites; one Pilot Project to
Integrate the Federal and State Site Assessment and Removal Programs; two site-specific
CAs; six TAGs; one CPCA; and one SMOA in negotiation.
153
-------
NEW HAMPSHIRE
SITES
N'PL Sites State Sites
Final: 17 Known and Suspected: 250
Proposed: 0 Identified as Needing Attention: 250
Deleted: 0 On Inventory or Priority List: 250
STATUTORY AUTHORITIES
The New Hampshire Hazardous Waste Cleanup Fund Act (HWCF), NHRSA Chapter 147-
B (1981, as amended 1983,1985,1986,1987,1990 and 1991), establishes the State's Fund and
provides for strict, joint and several liability, criminal penalties, cost recovery, and first
priority liens (superliens) on real property where hazardous waste and hazardous materials
are located, on business revenues generated by facilities on real property where hazardous
wastes and hazardous materials are located, and on all personal property located at such
facilities. NHRSA Chapters 147-A and 147-B establish its program for voluntary cleanups.
PROGRAM ORGANIZATION AND FUNDING
The Waste Management Division of the Department of Environmental Services (DES)
administers the HWCF. The Division has three bureaus. The Waste Management Compliance
Bureau is primarily responsible for Federal and State Superfund work and has 4^ FTE staff
funded or partially funded by the HWCF. The Attorney General's Office provides legal
support (a total of three attorneys work on all environmental issues) and receives an annual
appropriation from the HWCF. Eighty percent of the program's funding comes from the
HWCF and 20% from federal grants.
CLEANUP ACTIVITIES
The HWCF has been used for emergency removal activities and for various
hydrogeological studies at sites in the preliminary stages of investigation. New Hampshire
has nine NPL sites where remediation is underway and one NPL site where removal is
currently underway. No remediations have been completed at NPL sites since the start of the
program. Ten removals at NPL sites have been completed since the program started.
CLEANUP FUNDING
The HWCF has a balance of $3M (as of 6/95). The HWCF is derived primarily from
quarterly fees paid by generators of hazardous waste and recovered costs. An average of
$1.2M is collected each fiscal year. An estimated $108K had been obligated from the HWCF
as of 6/95. The HWCF can be used for site investigation, operation and maintenance, studies
154
-------
and design* removals, emergency response, remedial action, program administration, and
grants to local governments.
A separate account of $1.8M was appropriated for CERCLA match in 1995. The
statute (147-B) provides for issuing bonds, to be paid from the HWCF, to fund remedial
investigation and cleanup. $760K of those bonds have now been expended, and $735K has
been obligated as of 6/95, all on NPL sites.
CLEANUP POLICIES AND CRITERIA
Cleanup levels must meet or exceed any Federal standards. The State cleanup
standards and water quality criteria are for petroleum-contaminated virgin soil only and are
as stringent as, or more stringent than, Federal standards. Cleanup levels are established by
policy and selected on the basis of site-specific, regulatory, and risk-based assessments. Risk
levels are set site-by-site, based on the contaminant, affected media and land use. Generally
a 1CT6 risk level is used.
PUBLIC PARTICIPATION
There are no formal public participation requirements. The State may hold public
hearings in enforcement actions. Presently RPMs informally contact local citizens and
government officials.
ENFORCEMENT
Liability
The New Hampshire hazardous waste laws provide 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 action to recover costs.
Natural Resource Damages
The State has no natural resource damages program.
Property Transfer
New Hampshire has a first priority lien (superlien) on: (1) real 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. The State
maintains a database of known or listed sites.
155
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
The New Hampshire statute provides for a voluntary cleanup program, but no
information on the program was available.
New Hampshire does not currently have a brownfields program. However, as of
1/4/96, brownfields legislation was pending in the State Legislature.
FEDERAL/STATE PARTNERSHIP
For FY95, New Hampshire has a CPCA and SSCAs with U.S. EPA.
156
-------
RHODE ISLAND
SITES
NFL Sites State Sites
Final: 12 Known and Suspected: 300
Proposed: 0 Identified as Xeedmg Attention: 40
Delisted: 0 On Inventory or Priority List: No list
* j
STATUTORY AUTHORITIES
The Hazardous Waste Management Act, R.I. Gen. Laws, §§23-19.1-1 through 23-19.1-33
(1978, as amended, 1979,1984,1987), provides authorities for the cleanup of
abandoned/uncontrolled/inactive sites. The Environmental Response Fund was established
by amendment, §23-19.1-23 (1984).
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 clarifies enforcement authorities and
public participation.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Management, Division of Site Remediation, has 3C
FTE staff. In-house legal support is provided by one attorney. Federal grants provide 46% of
funding for staff and administration, with the remainder coming from State cleanup funds
and the State general fund.
CLEANUP ACTIVITIES
Remedial actions are underway at 40 non-NPL sites. Remedial actions have been
completed at 20 non-NPL sites, including 10 during the last fiscal year. Twelve removals
have been completed at non-NPL sites, including three during the last fiscal year.
Remedial actions are underway at five NPL sites. Remedial actions have been
completed at three NPL sites, including one during the last fiscal year.
CLEANUP FUNDING
At the end of the fiscal year the Environmental Response Fund had a balance of
$2,655. During the year, it received additions of $1,556,000, and paid out $2,350,000. Twenty
seven thousandwas encumbered during the fiscal year. The primary source of the fund is
bonds, with smaller contributions from cost recoveries and penalties and fines. The fund is
supposed to be self-perpetuating, but cost recoveries have been lagging. The bond fund has
been exhausted.
The fund may be used for site investigation, emergency response, removals, site
evaluation, studies and design, remedial action, CERCLA match, temporary water supplies,
O&M, program administration, and resident relocation.
157
-------
CLEANUP POLICIES AND CRITERIA
Water quality criteria, MCLs/MCLGs, background levels, groundwater standards,
risk assessment, and EPA guidelines may be used. Groundwater cleanup standards are
based on a statewide classification system. The State is developing generic risk-based soil
standards. Risk levels used for risk assessment are 10"6 for carcinogens and HI=1 for non-
carcinogens.
PUBLIC PARTICIPATION
The State has adopted statutory requirements for public participation in non-NPL site
cleanups.
ENFORCEMENT
Liability
Legal authorities include "absolute" liability (interpreted as strict, joint and several).
Liability is retroactive. The State has subpoena authority, administrative orders, injunctive
action, civil and criminal penalties, cost recovery, and treble damages. Civil penalties of up
to $10K/day are available.
Natural Resource Damages
The State has authority under § 23-19.1-22(c), and started its program in 1995. One
claim under CERCLA is pending.
Property Transfer
Property transfer provisions consist of disclosure on deed that a site is or was
contaminated, where an unremedied violation occurs. The provision is part of the State
Hazardous Waste Management Act An inventory of sites is maintained.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Voluntary cleanups are handled under the normal cleanup program. Although
anyone is eligible, non-PRPs can get a covenant not to sue as part of the cleanup.
Brownfields cleanups are handled under the Industrial Property Remediation and
Reuse Act Any site may qualify. Ten sites are currently in the program; cleanups are
underway at two sites, and redevelopment commitments exist at three sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Rhode Island has a CPCA and SSCAs with the U.S. EPA.
158
-------
VERMONT
SITES
NFL Sites State Sites
Final: 8 Known and Suspected: 1700
Proposed: 1 Identified as Needing Attention: 931
Deleted: 0 On Inventory or Priority List: 1700
STATUTORY AUTHORITIES
The Water Pollution Control Law, Vt. Stat. Ann. Title 10, §§1282-1283, provides a
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 and 1995), provides enforcement authorities'.
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, Waste Management Division,
Hazardous Sites Management Section 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. Staff and administrative costs come
from Federal grants (75%), appropriations (23%) and the State cleanup funds (2%).
CLEANUP ACTIVITIES
Remedial actions are currently underway at two NPL sites and at 200 non-NPL sites.
In the last fiscal year, one remedial action was completed at an NPL site and 60 were
completed at non-NPL sites. One remedial action at an NPL site has been completed since
the start of the State program. At non-NPL sites, 724 remedial actions have been completed
since the start of the State program. Two removals have been completed at non-NPL sites
since the start of Vermont's State program. Information for removals at NPL sites was not
available.
CLEANUP FUNDING
The Environmental Contingency Fund (ECF) had a balance of $840K at the end of
FY9S. Additions amounting to $450K 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 FY95. A hazardous waste generator tax constitutes the major source of
revenue for the fund, with minor revenue from cost recoveries and interest The ECF can be
used for site investigation, studies and design, removals, emergency response, remedial
159
-------
actions, natural resource restoration, CERCLA match, operation and maintenance, grants to
local government, and program administration.
The Petroleum Cleanup Fund (PCF) had a balance of $3M with $4M collected in FY95.
During FY95, Vermont spent $5.2M from the PCF on non-NPL sites. The PCF is generated by
an annual tank assessment fee required to be paid by UST owners as well as 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 fund can be used for site investigation, emergency response, studies and
design, remedial actions, removals, victim compensation, operations and maintenance,
program administration, and natural resource restoration.
CLEANUP POLICIES AND CRITERIA
Cleanup determinations are made on a case-by-case basis. The State uses water
quality criteria, based on the State groundwater statute, MCLs/MCLGs, EPA guidelines, and
background quality to determine cleanup levels. Currently, the State is developing
procedures for determining cleanup standards on a site-specific basis. Risk levels are also
determined on a site-specific basis and are usually in the range of 10"* to 10*.
PUBLIC PARTICIPATION
DEC meets with town officials and holds public meetings. There is a statutory
requirement (V.S.A. 6608 (d)) to notify municipalities of sites within their borders; site
designation must be entered on the town's land record. UST regulations also require public
notice of corrective action.
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, proportional, and
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 $1K per day
for continuing violation. Penalties and fines go to the General Fund; recovered costs go into
theECF.
Natural Resources Damages
Vermont has no NRD program.
160
-------
Property Transfer
Vermont does not have a property transfer program.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Vermont does not have a voluntary cleanup program although the State does
encourage and support voluntary cleanups.
The State does have a brownfields program (established by 10 V.S.A. 6615), 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.
CERCLA sites are excluded.
FEDERAL/STATE PARTNERSHIPS
For FY95, Vermont has a CPCA and a SMOA with U.S. EPA.
161
-------
R
EGION II
New Jersey
New York
Puerto Rico
162
-------
NEW JERSEY
SITES
NPL Sites State Sites
Final: 108 Known and Suspected: 20,000
Proposed: 0 Identified as Needing Attention: 6,500
Delisted: 7 On Inventory or Priority List:
STATUTORY AUTHORITIES
The Spill Compensation and Control Act, NJ.S.A. §§58:10-23 etseq., (1976, as amended
1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1990, 1991, 1993), establishes a
Fund for cleanups and provides authority for emergency response, removals, remedial
actions, enforcement, cost recovery, victim compensation, and damages.
The Industrial Site/Recovery Act (ISRA) (1993), renamed and amended New Jersey's
Environmental Cleanup Responsibility Act, NJ.S.A. §§13:lk-6 through 13:lk-13 (1983), which
requires transferors of industrial facilities to clean up contamination.
S.1070 (no name) was the 1993 law that included ISRA; however, it also added
substantial authorities for cleanup, including new cleanup funds for loans to private parties
and loans and grants to municipalities.
Additional authority is provided by the State's Hazardous Discharges Law, N.J.S. A.
§§13:lk-15 through 13:lk-19 (1984) and the Underground Storage of Hazardous Substances Act,
PROGRAM ORGANIZATION AND FUNDING
The Site Remediation Program in the Department of Environmental Protection and
Energy (DEPE) has 650 staff members. The Attorney General's Office (Department of Law
and Public Safety, Division of Law, Environment Section) provides 23 attorneys for legal
support of the program. Funding for staff and administration comes from the Spill
Compensation Fund, PRP reimbursements, and the State's bond fund. A small amount of
funding comes from federal grants.
CLEANUP ACTIVITIES
The State formerly maintained a priority list, but is now in the process of adopting
regulations to legally support a priority list New Jersey's "known contaminated site list*
contains approximately 6,500 sites.
The State reports 9,276 ongoing remedial actions at non-NPL sites; 2*366 during last
fiscal year; and 12,004 since start of program.
At NPL sites, 104 remedial actions are underway; nine have been completed since the
start of the program, including two during the last fiscal year.
163
-------
CLEANUP FUNDING
New Jersey's Spill Compensation Fund, generated by a transfer tax, penalties,
appropriations, cost recoveries, and interest, had a balance of $5.5M at the end of FY95. Fund
activities during FY95 consisted of 525.3M in additions, S29M in expenditures and $5.6M in
obligations. Expenditures and obligations were almost entirely for non-NPL actions;
expenditures for NPL sites were S550K, and obligations for N'PL sites were $100K. This Fund
is 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. The Spill Fund also has a Natural Resources
Damages sub-account, which contains S2.3M and which received $1.1M during the last fiscal
year; this sub-account holds funds for use in natural resource restoration.
The Hazardous Discharge Site Cleanup Fund, consisting primarily of cost recoveries
and interest, had a balance of $0 at the end of the fiscal year. This Fund's activities during
FY95 consisted of $27.1 M in cost recoveries. It expended $600K during the same period.
New Jersey's Bond Fund had a balance of S86.6M at the end of the fiscal year, with
revenue of $8.5M and expenditures of $8M. A total of S56.9M of the Bond Fund was
obligated during the fiscal year for site cleanups. Essentially the Bond Fund is almost
entirely encumbered.
The Sanitary Landfill Contingency Fund had a balance of $39.6M, and received
revenues of $3.8M. It paid out no funds during the fiscal year. It is designed to provide for
victim compensation and for closure of abandoned landfills.
The Remediation Guarantee Fund had a balance of $5M, with no additions or
expenditures. It was created by appropriation of bond funds, and is intended to cover
defaults on cleanups subject to administrative consent orders.
The Hazardous Discharge Site Remediation Fund (not to be confused with the
similarly named Hazardous Discharge Site Cleanup Fund) is not, strictly speaking, a State
cleanup fund. This $50M fund was created by the legislature by reprogranuning 1993 bond
funds. Administered by the State's Economic Development Authority, it provides low
interest loans to PRPs and others to assist in cleanups; it also provides grants to
municipalities.
CLEANUP POLICIES AND CRITERIA
The State has statutory cleanup standards, and also uses water quality criteria, MCLs
and MCLGs, background levels, risk assessment, EPA guidelines, arid the State's soil cleanup
criteria (SCQ guidelines. The risk level set by statute is 10*, and is effective pending review
by an independent commission. For soil cleanup, the State may use the non-promulgated
SCC or determine case-specific levels by nsk assessment. If SCC are determined to be below
background levels, then the cleanup level is background.
164
-------
PUBLIC PARTICIPATION
The Spill Act specifies that actions should "to the greatest extent possible, be in
accordance with the NCR" DEPE policy is generally to follow NCP procedures. The State
laws, rules and procedures provide for notice, comment, hearings, and participation.
ENFORCEMENT
Liability
Liability is retrocactive, strict, joint and several. 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 cost recovery actions.
Natural Resource Damages
The Spill Act provides State authority to seek natural resource damages. A formal
program was inaugurated July 1,1993. One State NRD recovery has occurred, and five
CERCLA NRD recoveries (valued at $6.7M). There are five CERCLA and one State-based
NRD claims currently pending.
Property Transfer
New Jersey's ECRA 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). Cleanup and disclosure is still
required, although cleanup may be deferred if the same industrial use is to continue.
Transactions that do not comply are voidable by the State or the transferee.
New Jersey's Spill Act gives the State a priority (super)lien for its cleanup costs.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State's voluntary cleanup program is fully integrated into its other programs. The
DEPE will provide a "no further action letter* upon completion of successful voluntary
cleanup. The program was established by regulation. Low interest loans are available to
PRPs and others. The State charges an oversight fee.
The Stale also operates a brownfields program under general regulatory authority As
noted above, the low interest loan fund is administered by the Economic Development
Authority. Several municipalities, including Bayonne and Phillipsburg, received grants from
this fund to assess abandoned sites for reuse.
FEDERAL/STATE PARTNERSHIPS
For FY95, New Jersey has a CPCA and SSCAs with the U.S. EPA.
165
-------
NEW YORK
SITES
NPL Sites State Sites
Final: 81 Known and Suspected: 929
Proposed: 0 Identified as Needing Attention: 793
Delisted: 7 On Inventory or Priority List: 929
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 0/1979 (Chapter 282), which mandates statewide inventory and registry of sites, provides
order and cleanup authority, and authorizes the State to provide alternative water supplies.
The State Superfund Act (1982, Chapter 857), establishes the Hazardous Waste
Remedial Fund for cleanup of sites and State CERCLA match. Amendments to the State
Superfund Act (1985, Chapter 38) increased the assessments and fees.
The Environmental Quality Bond Act of 1986 (EQBA) (Ch. 511, Laws of 1986),
authorized $1.2B in bonds to address inactive hazardous waste sites, $100M of which was
later redirected for use in cleaning up nonhazardous waste landfills.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Conservation (DEC) has approximately 289 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 15
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
Remedial actions are underway at 52 non-NPL sites. Remedial actions have been
completed at approximately 192 non-NPL sites, including 21 during the last fiscal year.
Removals are underway at approximately 27 non-NPL sites. Removals have been completed
at approximately 404 non-NPL sites, including 44 during the last fiscal year.
Remedial actions are underway at 22 NPL sites. Remedial actions have been
completed at 57 NPL sites, including seven during the last fiscal year. Four removals are
underway at NPL sites. Approximately 52 removals have been completed at NPL sites since
the beginning of the program, including eight during the last fiscal year.
166
-------
CLEANUP FUNDING
In 1989, the State began selling EQBA bonds. S594M remains in the hind. During the
last fiscal year, S79.5M was expended (all but SlOOK on non-NPL cleanups). A total of
S123.5M was obligated. The bond money can be used for site investigation, studies and
design, removals, emergency response, remedial actions, CERCLA match, O&M, grants to
local government, and program administration.
The Hazardous Waste Remedial Fund had a balance of S5.1M as of 3/31/95. During
the last fiscal year, $51.6M was added to the fund and $49.9M was paid out. The bulk of this
funding comes 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.
A substantial amount of cleanup funding is provided by PRPs. The State reports a
total of 590 consent orders to date, valued at approximately $1.75B in cleanup commitments.
CLEANUP POLICIES AND CRITERIA
Cleanup levels are established by water quality criteria, MCLs/MCLGs, background
levels, risk assessment, groundwater standards, and EPA guidelines. When the cleanup of a
site to the predisposal condition is not possible or feasible, DEC specifies generic soil cleanup
objectives which, if attained, would eliminate all significant threats. Risk levels are set at 10*.
PUBLIC PARTICIPATION
Statutes and regulations require the DEC to develop 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 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 PRAP 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. The Department summarizes and
responds to comments received during the comment period when the Record of Decision
(ROD) is signed.
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.
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
167
-------
$25K per day and/or one year impnsoament are available. Penalties double for a second
violation. Cost recovery is also authorized.
Natural Resource Damages
Natural resource damages are recoverable under the Navigation Law, the
Environmental Conservation Law, and common law. A formal natural resource damages
program was authorized in 1990 within DEC and got underway in 1993. It has recovered
more than $20M, mostly under CERCLA authority. Six 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 BROWNFIELDS 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.
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.
There is no separate brownfields program, but the voluntary cleanup program serves
this objective.
FEDERAL/STATE PARTNERSHIPS
For FY95, New York has a CPCA and SSCAs with the U.S. EPA.
168
-------
PUERTO RICO
SITES
NPL Sites State Sites
Final: 9 Known and Suspected: 256
Proposed: 1 Identified as Needing Attention: 256
Delisted: 0 On Inventory or Priority List: No list
STATUTORY AUTHORITIES
The Environmental Emergencies Fund Act, Law 81 (1987) provides for a cleanup 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, L.P.R. Ann., tit. 12, § 1121 et sea. (1970, as amended 1973,1974,1978,1983,1984,1985,
1993).
PROGRAM ORGANIZATION AND FUNDING
The Emergency Response and Superfund Area of the Environmental Quality Board
has 22 FTE staff working on cleanup activities. Legal support is provided by one attorney
from the Environmental Quality Board's Legal Division. Federal grants provide 90% of
funding for staff and administration.
CLEANUP ACTIVITIES
One remedial action and one removal action are underway at non-NPL sites. No
other remedial actions or removals have occurred at non-NPL sites. At NPL sites three
remedial actions are underway and one removal has been completed since the start of the
program.
CLEANUP FUNDING
The Environmental Emergencies Fund ended the fiscal year (6/30/95) with
$2,482,110. The Fund received $1,100,109, mostly from bond proceeds. It is allowed to
receive cost recoveries and penalties. In the fiscal year just ended, $986,716 was paid out for
cleanup activities. The Fund may be used for emergency response, removals, studies and
design, remedial actions, CERCLA Match, and up to 10% for administrative costs.
CLEANUP POLICIES AND CRITERIA
Puerto Rico uses promulgated cleanup standards, water quality criteria, MCLs and
MCLGs, background, EPA guidelines, groundwater and soil standards for cleanup
standards.
169
-------
PUBLIC PARTICIPATION
No formal procedures exist. Public meetings and other public participation are
conducted in accordance with the NCP for NPL sites or EPA removal actions.
ENFORCEMENT
Liability
Liability is strict and retroactive. Civil penalties are authorized up to $25K per day
per violation; no punitive damages are available.
Natural Resource Damages
Both laws authorize recovery for natural resource damages. Damages have been
sought only for oil spills.
Property Transfer
No law.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Puerto Rico has neither voluntary nor brownfields cleanup programs.
FEDERAL/STATE PARTNERSHIPS
For FY95, Puerto Rico has a CPCA and SSCAs with the U.S. EPA.
170
-------
R
EGION III
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
171
-------
DELAWARE
SITES
NPL Sites State Sites
Final: 19 Known and Suspected: 280
Proposed: 0 Identified as Needing Attention: 120
Deleted: 2 On Priority List: 120
STATUTORY AUTHORITIES
The Hazardous Substance Cleanup Act, DCA, Tit. 7, §9101-9120 (1990, as amended
1995), provides the authority for emergency response, removals and remedial actions, cost
recovery and damages, a voluntary cleanup program, and establishes a fund for site cleanup.
The Delaware Regulations Governing Hazardous Substance Cleanup (1993, revised 1995)
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 Department of Natural Resources and Environmental Control (DNREQ, Division
of Air and Waste Management, Superfund Branch has 30 staff members. Legal support is
provided by the Attorney General's office with one attorney assigned to both State and
CERCLAwork.
The sources of administrative funds are federal grants (50%), the Delaware General
Fund (10%), and the Hazardous Substance Cleanup Fund (40%).
CLEANUP ACTIVITIES
Remediation is currently underway at four NPL sites. Eight NPL sites have been fully
remediated since the start of the program. Three remedial actions were completed during the
1995 fiscal year (FY95). Two NPL removals were completed in FY95, one is currently
underway, and five removals have been completed since the start of the program.
No remediations or removals are currently underway at non-NPL sites. One remedial
action and one removal at non-NPL sites were completed during FY95, and two
remediations and 14 removals have been completed since the start of the program.
CLEANUP FUNDING
The Hazardous Substance Cleanup Fund had a balance of 53.7M at the end of the
fiscal year (6/30/95). Additions to the Fund totaled $4.4M in FY95. Expenditures for
activities at non-NPL sites totaled $2.0M. There were no funds obligated during FY95.
The Fund receives petroleum products tax receipts, penalties, cost recovery and
interest The Fund is available for program administration, site investigation, studies and
172
-------
design, removals, remedial actions, emergency response, natural resource restoration,
CERCLA match, and operation and maintenance.
CLEANUP POLICIES AND CRITERIA
The State has adopted cleanup regulations (1993, revised 1995) which specify that
cleanup levels will be determined using a nsk-based approach on a site-specific basis.
Cleanup levels may be based on current and potential future resource uses and reasonable
maximum exposures under both current and potential use conditions. If the PRP can-not
perform risk assessment, the State allows the use of risk based concentration tables put out
by U.S. EPA Region III.
MCLs may be used as the groundwater cleanup levels if the DNREC determines they
are protective of human health and the environment. Otherwise, when the natural
background level exceeds the 10"5 cancer risk level or a hazard index (HI) value of 1, the
natural background level is the cleanup level. When the background level is less than the 10"3
cancer risk level, then the Itt5 risk level or a level corresponding to the HI value of 1 is the
cleanup level. If the PRP can not perform risk assessment, the risk level from the U.S. EPA
Region III concentration tables of 10"* is used. The same rule applies to soil cleanup levels.
Surface water cleanup levels must meet the State's water quality standards.
PUBLIC PARTICIPATION
The Hazardous Substance Cleanup Act provides for public notice and opportunity for
public comment on proposed consent decrees, settlement revisions, and 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 $10FC per day per violation are
available. The State may recover punitive damages, treble the State's cleanup costs.
Natural Resource Damages
The State natural resource damages program is set forth in the Delaware Regulations
Governing Hazardous Substance Cleanup. The program covers compensation and restoration or
replacement requirements for natural resource damages. PRPs are liable for all damages. No
claims are currently pending.
In 1990, $600K was recovered at an NPL site under the NCP, and $400K has been
spent for natural resource restoration at one site.
173
-------
Property Transfer
The Hazardous Substance Cleanup Act (§9115) requires the properly 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 Secretary is required to
maintain public records that identify the property location, the hazardous substance(s), and
the remedial decision record.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The 1995 amendments to the Hazardous Substance Cleanup Act included provisions for
a voluntary cleanup program. Anyone can 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, participants are required to remit a $5K deposit. Any deposit funds not expended
by the State are returned to the participant. If the oversight costs exceed $5K, the participants
are required to pay the excess costs.
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 $25 K are available for site investigation and
cleanup. Six cleanups are currently underway and thirteen sites have commitments for
redevelopment
FEDERAL/STATE PARTNERSHIPS
For FY95, Delaware has a CPCA, a SMOA, and a SSCA with U.S. EPA.
174
-------
DISTRICT OF COLUMBIA
SITES
NPL Sites State Sites
Final: 0 Known and Suspected: 30
Proposed: 0 Identified as Needing Attention: 0
Deleted: 0 Inventory or Priority List No list
STATUTORY AUTHORITIES
The Hazardous Waste Management Act of 1978, D.C. Code §6-701 et seq., (as amended in
1984,1989, and 1991), authorizes the mayor to "institute the actions necessary to terminate" a
permit where a person fails to take corrective actions to comply with a notice of violation
and to immediately revoke a permit where there is imminent danger to public health or the
environment It also provides for injunctions and civil and criminal penalties.
PROGRAM ORGANIZATION AND FUNDING
The Department of Consumer and Regulatory Affairs, Environmental Regulation
Administration, Pesticides, Hazardous Waste and Underground Storage Tank Division has
22 full-time staff members, of which one is an attorney. The Corporation Counsel also
provides legal support as needed.
The District's program is currently funded through Federal grants (75%), and from
the District Government General Fund (25%). They have authority to set up a fee schedule to
fund their hazardous waste and toxic chemical source reduction program.
CLEANUP ACTIVITIES
The District does not have any NPL sites and does not have a cleanup program for
non-NPL sites. Removals are carried out occasionally at non-NPL sites with two currently
underway and five completed during the last fiscal year.
CLEANUP FUNDING
The District does not have a fund for hazardous waste cleanup. However, it does
have an Underground Storage Tank Trust Fund authorized by the Underground Storage Tank
Management Act of 1990.
CLEANUP POLICIES AND CRITERIA
The District has promulgated standards of 100 pm for total petroleum hydrocarbons
in soil, 10 ppm for BTEX in soil, and 1 ppm for benzene in soil. Where it is not feasible to use
regulation standards, risk assessment may by required, using EPA protocols, to prove that
human health and the environment are adequately protected.
175
-------
PUBLIC PARTICIPATION
The District has no formal public participation requirements. However, in each case it
gives notice designed to reach persons directly affected by the site.
ENFORCEMENT
Liability
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 a natural resource damages program.
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.
FEDERAL/STATE PARTNERSHIPS
The District does not have any federal/State partnership agreements.
176
-------
MARYLAND
SITES
NPL Sites State Sites
Final: 13 Known and Suspected: 463
Proposed: 1 Identified as Needing Attention: 198
Deleted: 1 On Inventory or Priority List:
Delisted: 1
STATUTORY AUTHORITIES
The Annotated Code of Maryland, Environment Art., Tit. 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) provides for the
Hazardous Substance Control Fund and enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Department of the Environment (MDE), Waste Management Administration,
Environmental Restoration and Redevelopment Program has two divisions involved in the
Superfund process: Site Assessment/State Superfund Division, with approximately nine full-
time staff, and the Federal Facilities and NPL Division, with 13 full-time staff. The Attorney
General's office has staff located at MDE; two attorneys devote approximately 75% of their
time to CERCLA. The Core function is under the Waste Management Administration's
Planning and Resource Management Program, and has approximately eight full-time
employees.
Funding for the State's Superfund program comes about 10% each from the State
general fund and the State cleanup fund and about 80% from Federal grants.
CLEANUP ACTIVITIES
In 1995, all of the activities at non-NPL sites were paid for by responsible parties. Five
of the NPL sites are federal facilities, while 33 of the State sites are federal facilities. No more
information on cleanup activities was available.
CLEANUP FUNDING
The current information on cleanup funding was unavailable.
CLEANUP POLICIES AND CRITERIA
Where appropriate, the State applies water quality criteria, MCLs/MCLGs, risk
standard assessment, background levels, EPA guidelines, groundwater standards, and soil
standards. Maryland applies these criteria on a site by site basis as appropriate. Risk levels
are based on EPA published standards and Region III guidance as appropriate and available.
177
-------
PUBLIC PARTICIPATION
There are some statutory requirements for hearings, document availability and policy
requirements for notice and public comment. Community involvement is encouraged if there
is interest All consent orders have a community involvement section and the Community-
Relations Coordinator or the site project manager arranges public meetings.
ENFORCEMENT
Liability
Maryland has strict, and joint and several liability standards, but provides for
apportionment where there is a reasonable basis for determining a party's contribution.
Under State law, the State program can 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. There are no punitive damages available.
Natural Resource Damages
The State's natural resource damage program began in 1982. It follows Federal
guidelines for NRDP 7-220 use of fund; the State does not have any claims pending or money
recovered yet.
Property Transfer
The State does not have a property transfer provision in its Superfund law.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State does not have a voluntary cleanup program. However, a Voluntary
Cleanup Task Force was established in the summer of 1995, and a voluntary cleanup
program may be implemented. Also, a voluntary cleanup program/ brownfields bill was
introduced into the Maryland Legislature in early 1996.
There is no current brownfields program either, but the Department is currently
developing a program by policy within the scope of the current statute and regulations. The
State has a Cooperative Agreement with EPA to do brownfields assessment on existing sites.
The criteria for inclusion in the State program are expected to be low to medium priority
sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Maryland has a CPCA and SSCAs with U.S. EPA, and is negotiating a
SMOA.
178
-------
PENNSYLVANIA
SITES
NPL Sites State Sites
Final: 100 Known and Suspected: 100
Proposed: 2 Identified as Needing Attention: 50
Deleted: 8 On Inventory or Priority List: 12
STATUTORY AUTHORITIES
The Hazardous Sites Cleanup Act (HSCA) (Act 1988-108), 35 P.S. §6020.101 etseq.,
establishes a State fund and provides for administrative and judicial enforcement authority,
cleanup procedures, a priority list, replacement of water supplies, property transfer
restrictions, citizen suits, and public participation.
The Land Recycling and Environmental Remediation Standards Act, (LR&ERSA) (Act
1995-2), 35 P.S. §6026.101 etseq. establishes state-wide cleanup standards, a voluntary
cleanup program and a brownfields program.
PROGRAM ORGANIZATION AND FUNDING
The Land Recycling and Cleanup Program in the Department of Environmental
Protection (DEP) handles hazardous substance cleanup, and has a staff of 120. Legal support
is provided by the Superfund Enforcement Division of the DEP Chief Counsel's Office with
12 full-time attorneys. The State Fund provides 100% of administrative costs.
CLEANUP ACTIVITIES
Remediation is currently underway at 30 NPL sites with eight NPL sites having been
fully remediated since the start of the program. Currently, remediation is underway at three
non-NPL sites while two sites have been fully remediated since the start of the State
program. Removals have been completed at 60 non-NPL sites since the start of the program,
ten during FY95.
CLEANUP FUNDING
The Hazardous Sites Cleanup Fund had a balance of $75M at the end of FY95.
Additions to the Fund during FY95 totaled $51M. $42M was generated from a capital stock
and franchise tax Hazardous waste transportation and management fees provided the Fund
with $3M. Minor sources of Fund monies were interest, penalties, and cost recoveries.
Expenditures from the Fund in FY95 totaled $6M for the NPL portion and $10M for the non-
NPL portion of the program. Obligations from the Fund in FY95 were $10M for the NPL
portion and $13M for the non-NPL portion of the program.
179
-------
Fund monies may be used for site investigation, studies and design, removals,
remedial actions, program administration, CERCLA match, emergency response, victim
compensation, and natural resource restoration.
CLEANUP POLICIES AND CRITERIA
State-wide cleanup standards are set by the LR&ERSA. In general, the State considers
water quality criteria, MCLs/MCLGs, background levels, risk standard assessment,
groundwater standards, and soil standards. DEP can apply state-wide cleanup standards or
select site specific risk-based responses that include engineering and institutional controls.
The levels used for risk assessments are 10"4 to 10"*.
PUBLIC PARTICIPATION
Pennsylvania has a statutory requirement for public notice, provision for 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.
Community Relations Coordinators perform additional public participation functions
on an ad hoc basis.
ENFORCEMENT
Liability
HSCA provides comprehensive order and mjunctive authorities, orders for
information and access, criminal and civil penalties, and treble damages. Civil penalties are a
minimum of $5K per day and a maximum of $25 K per day. Liability is strict, joint and
several, and retroactive. HSCA also provides for NBARs, de minimis settlements, natural
resource damages, 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 (RP) 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, §1301 requires the 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.
Natural Resource Damages
No State natural resource damages (NRD) program or policy exists at present NRD
claims have been filed at two NPL sites under CERCLA, as part of cost recovery actions.
180
-------
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.
VOLUNTARY AND BROWNFIELDS PROGRAMS
LR&ERSA establishes the voluntary cleanup program. 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 through the
General Fund and by a $250 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. All other
facets of the program are identical to the voluntary cleanup program. The State has
identified ten sites for inclusion in the program, and ten cleanups are currently underway.
FEDERAL/STATE PARTNERSHIPS
For FY95, Pennsylvania has no Federal/State partnerships with U.S. EPA.
181
-------
VIRGINIA
SITES
NPL Sites State Sites
Final: 24 Known and Suspected: 2015
Proposed: 0 Identified as Needing Attention: 363
Deleted: 2 On Inventory or Priority List: .
STATUTORY AUTHORITIES
The Waste Management Act, Va. Code §§10.1-1400 through -1457 (1986, as amended
1987,1988,1990,1993,1994, and 1995), provides for permitting and certification
requirements, management responsibilities, enforcement authority and penalties, pollution
prevention, litter control and recycling, hazardous waste management, siring of hazardous
waste facilities, and transportation of hazardous materials. The 1995 amendments created a
voluntary remediation program. A State priority list is currently under development
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, Waste Division, Office of Federal
Facilities and Superfund Programs, has two branches dealing with site cleanup: the Federal
Facilities Restoration Program with 12 full time employees and the Superfund Remedial
Program with five full time employees.
Legal support is provided by one half-time attorney in the State Attorney General's
office. Federal grants provide 90% of program administration costs and the State General
Fund provides the remaining 10%.
CLEANUP ACTIVITIES
Currently, remedial actions are underway at ten NPL sites and 19 non-NPL sites. Ten
remedial actions were completed during FY95 at NPL sites and none were completed at non-
NPL sites. However, since the start of the cleanup program, 20 remedial actions have been
completed at NPL sites and 15 at non-NPL sites. Removals are currently underway at 17
NPL sites and 11 non-NPL sites. In FY95, no removals were completed at NPL sites, while
four removals were completed at non-NPL sites. Since the start of the program, removals
have been completed at approximately 44 NPL sites and 55 non-NPL sites.
In general, non-NPL sites tend to be Federal facilities run by the Department of
Defense. As responsible parties, the Federal agencies pay for the remediation and removal
activities. A total of six NPL sites are Federal facilities, while 26 non-NPL sites are Federal
facilities.
182
-------
CLEANUP FUNDING
The Virginia Environmental Emergency Response Fund was established in 1992 for
emergency response actions. It had a balance of $2.5M as of 6/30/95. Additions of $414K
were made to the fund during FY95, mostly from penalties. A total of $73K was paid out
during FY95 to non-NPL sites. Virginia has a Capital Project Account for Environmental
Remediation that is used for the 10% match on cleanups under Superfund.
Responsible parties have spent approximately $70K on State-supervised non-NPL
cleanups in the State in FY95. This figure comes from Department of Defense numbers,
which represent the majority of non-NPL cleanups.
CLEANUP POLICIES AND CRITERIA
The State uses water quality standards, MCLs/MCLGs, and EPA risk-based
guidelines where appropriate. Background level data and State regulations are applied to
support EPA decisions. For purposes of the State's new voluntary remediation program,
health risk-based cleanup levels are developed on a case-by-case basis. Risk levels used for
risk assessments are typically between 10"4 and 10*.
PUBLIC PARTICIPATION
Virginia uses the Federal Superfund regulations for notice and comment concerning
the analysis of NPL site cleanup alternatives. No public participation is specified in the new
voluntary remediation program.
ENFORCEMENT
Liability
The State's enforcement authority is limited to sites where waste has been
"improperly managed." In such a case, the State has the authority to issue unilateral
administrative consent orders, take injunctive action and impose civil penalties and punitive
damages. Civil penalties are up to $25K per day per violation of an order. Punitive damages
available from individuals are $25K for knowingly making false statements, and $250K for
knowingly violating the State's statute or regulations and placing another person in
imminent danger of death or serious bodily injury. Corporate defendants are subject to up to
$1M per offense or an amount equal to three times the economic benefit realized as a result
of the offense.
Natural Resource Damages
The State has had the authority to recover such damages under the Act since 1990. No
damages have been recovered by the State to date and no claims are currently pending.
Property Transfer
The State has no property transfer provisions or restrictions.
183
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
Since July 1995, the State has had a program for voluntary cleanups of contaminated
sites (Code of Virginia, §§10.1-1429 to 1429.3). Eligibility is limited to sites where
remediation is not mandated pursuant to CERCLA, RCRA (subtitles C, D, I), Virginia
Hazardous Waste Management Act, and Virginia Water Control Law. Incentives for
participation in the program include certification of satisfactory completion of remediation,
which constitutes immunity to a State enforcement action. The State participation is funded
in part by responsible parties through a fee based on 1 % of remediation cost or $5K,
whichever is less. Initially, voluntary cleanup costs seem to be up to $500K.
Virginia does not have an explicit brownfields program, but the Voluntary
Remediation Program will assist the two EPA brownfields pilot projects in Virginia if
contamination is found.
FEDERAL/STATE PARTNERSHIPS
For FY95, Virginia has a CPCA, a SMOA, and SSCAs with U.S. EPA.
184
-------
WEST VIRGINIA
SITES
NPL Sites State Sites
Final: 5 Known or Suspected: 500
Proposed: 1 Identified as Needing Attention:
Deleted: 0 On Inventory or Priority List 51
STATUTORY AUTHORITIES
The Hazardous Waste Emergency Response Fund Act, W.Va. Code §§22-19-1 through
22-19-6 (1984, as amended 1994), establishes a cleanup fund for emergency response and
CERCLA match, and provides for cleanup authorities.
The Hazardous Waste Management Act, W.Va. Code §§22-18-1 through 22-18-25 (1981,
as amended 1985,1989,1991, and 1994), contains enforcement authorities and property
transfer disclosure requirements.
The Groundwater Protection Act, W.Va. §§22-12-1 through 22-12-14 (1991, as amended
1993 and 1994) establishes groundwater standards which may be used by the State to
determine cleanup levels.
PROGRAM ORGANIZATION AND FUNDING
The Site Investigation and Response Section of the Office of Waste Management,
within the Division of Environmental Protection, within the Department of Commerce,
Labor, and Environmental Resources, employs 12 full-time staff members. The State
Attorney General's office provides legal support with one staff member. Federal grants
provide 80% of administrative costs, with the Response Fund providing the remaining 20%.
CLEANUP ACTIVITIES
There are no State-lead NPL sites. Remediation is currently underway at four NPL
sites. One NPL site has been fully remediated since the start of the program. No information
is available for cleanup activities at non-NPL sites.
CLEANUP FUNDING
Current fund information was not available. The Hazardous Waste Emergency
Response Fund had a balance of S2.20M at the end of fiscal year (6/30/93).
The main source of Fund monies is hazardous waste generator fees. Generator
assessments cease if the unobligated balance exceeds $1.5M at the end of the fiscal year. Fees
are again assessed when the balance reaches $1M.
The Fund may be used for program administration, site investigation, studies and
design, operation and maintenance, emergency response, removals, remedial action, and
185
-------
the CERCLA match. The Fund monies may be used only for hazardous wastes not hazardous
substances.
CLEANUP POLICIES AND CRITERIA
The State applies EPA guidelines, water quality criteria, and MCLs where
appropriate. If no standard is available, background levels and EPA risk assessments may be
applied. The Groundwater Protection Act established groundwater standards, equivalent to
MCLs in most cases, which will be applied where appropriate.
PUBLIC PARTICIPATION
No formal requirements or informal procedures for public participation exist at
present
ENFORCEMENT
Liability
Prior to fund expenditure, the director must make "reasonable efforts" to secure
agreements from the owner or operator or other RPs to pay cleanup and remedial action
costs. All monies collected pursuant to enforcement action or cost recovery are deposited in
the Fund. Under HWERF, the State has the authority to recover costs and interest for unpaid
or late paid generator fees up to twice the required fee. Other enforcement actions pertaining
to hazardous substances are taken under the HWMA.
Natural Resource Damages
No policy or program exists at present.
Property Transfer
The Hazardous Waste Regulations (+Ch. 20-5E, 47CSR35) 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
No information was available on voluntary cleanup or brownfield programs.
FEDERAL/STATE PARTNERSHIPS
For FY95, West Virginia has a CPCA and SSCAs with the U.S. EPA.
186
-------
R
EGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
187
-------
ALABAMA
SITES
NFL Sites State Sites
Fin«d: 12 Known and Suspected: 650
Proposed: 1 Identified as Needing Attention: 125
Deleted: 1 On Inventory or Priority List No List
STATUTORY AUTHORITIES
The Hazardous Substances Cleanup Fund, Ala. Code §22-30A-l et seq. (1988) provides
enforcement authorities and a cleanup hand.
PROGRAM ORGANIZATION AND FUNDING
The Special Projects Office in the Office of the Director, Alabama Department of
Environmental Management (ADEM) has 20 FTE staff working on cleanup activities (three in
management; five in the Engineering Section; eight in Site Assessment; and four in Field
Operations). Legal support is provided by 0.1 FTE attorney in the ADEM Office of General
Counsel. Funding for staff and administration comes from the State general fund, the
cleanup fund, hazardous waste disposal fees, and Federal grants.
CLEANUP ACTIVITIES
The State has seven remedial actions underway at non-NPL sites, and has completed
nine since the start of the program including one during the last fiscal year. It has 15
removals underway, and has completed 80 since the start of the program, including 17
during the last fiscal year.
Remedial actions are underway at 11 NPL sites. One remedial action and six
removals have been completed at NPL sites since the start of the program, including five
removals during the last fiscal year.
CLEANUP FUNDING
The Hazardous Substance Cleanup Fund had a balance of $478,167 at the end of the
fiscal year (9/30/95). Additions to the Fund during the year were $441,499. The Fund
receives monies from waste disposal fees, cost recoveries, and appropriations. The Fund
paid out $324,048 during the year for actions at non-NPL sites. The Fund may be used only
at sites mat are not on the NPL at the time the activity starts, and for CERCLA match and
operations and maintenance.
CLEANUP POLICIES AND CRITERIA
Cleanup standards include water quality criteria, MCLs and MCLGs, background
levels, risk assessments, EPA Guidelines, and groundwater standards. Risk levels are
generally 10"* for industrial and 10* for residential areas.
188
-------
PUBLIC PARTICIPATION
A 30-day comment period on a cleanup plan is required by statute; a single
publication of notice in a county paper is sufficient notice. The 30-day comment period is
required prior to the State's issuing of an administrative order unless there is an imminent
threat to human health.
ENFORCEMENT
Liability
Liability is retroactive and proportional. Civil penalties are authorized up to $25K per
day per violation of an order. No punitive damages are available.
Natural Resource Damages
The State lacks authority independent of federal law to recover natural resource
damages. Four claims are pending at NPL sites.
Property Transfer
No law.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has an informal voluntary cleanup program; guidelines are under
development Inactive sites with no current enforcement actions are eligible to participate.
Incentives include lower oversight costs and speed; the State collects reimbursement for its
oversight costs.
The State has an informal brownfields program in connection with its voluntary
program. Guidelines are under development.
FEDERAL/STATE PARTNERSHIPS
For FY95, Alabama has a CPCA, a SMOA, and SSCAs with U.S. EPA.
189
-------
FLORIDA
SITES
NPL Sites State Sites
Final: 54 Known and Suspected: 1023
Proposed: 4 Identified as Needing Attention: 656
Delisted: 6 On Inventory or Priority List No list
STATUTORY AUTHORITIES
The Pollutant Discharge Prevention and Removal Act, Fla. Stat §§376.30 through 376.319
(1983, as amended 1984,1986,1988,1993, and 1995), establishes the Water Quality
Assurance Trust Fund (WQATF) and provides enforcement authorities.
The Resource Recovery and Management Act, Fla. Stat. §§403.701 through 403.7721 (1974,
numerous amendments), establishes certain enforcement provisions and the Hazardous
Waste Management Trust Fund.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Protection, Division of Waste Management,
Bureau of Waste Cleanup has five sections (62 staff members) that administer the program:
(1) Hazardous Waste Cleanup (22 staff members); (2) Preliminary Assessment (11 staff
members); (3) Site Investigation (16 staff members); (4) Registration (two staff members), and
Technical Support (five staff members) and Enforcement (with six District staff members).
Legal support is provided by 2 attorneys in DER's Office of General Counsel. The Emergency
Response Program has 12 staff, five in Tallahassee and seven in regional offices. State trust
funds (85%) and Federal grants (15%) provide money for staff and administration.
CLEANUP ACTIVITIES
The State has completed 29 remedial actions and 15 removals at non-NPL sites since
the start of its program, including five remedial actions during the last fiscal year. Twenty-
three remedial actions are underway at non-NPL sites.
Twenty-eight remedial actions have been completed at NPL sites, and are underway.
Thirty removals occurred at NPL sites.
CLEANUP FUNDING
The Water Quality Assurance Trust Fund was originally set up with a transfer of
$11M from the Coastal Protection Trust Fund. It is now funded by excise taxes, discharge
permit fees, interest, transfers from other funds, cost recovery, and penalties and fines. The
fund balance is approximately $7M. The tax is levied if the fund balance falls below $5M and
suspended if the balance is over $12M. The WQATF funds emergency response, site investi-
gation, studies and design, remedial actions, operations and maintenance, grants to local
190
-------
government, program administration, natural resource restoration, and State CERCLA
match. $1.7M was expended from this fund during the last fiscal year for non-NPL related
activities. During the same period $500K was obligated for NPL site activities and $3,245,400
for non-NPL activities.
The Hazardous Waste Management Trust Fund serves as a holding account for
Federal monies — primarily EPA grants and DOD cleanup funds. This Fund also serves as
the collection point for the drycleaner tax collected for the cleanup of drycleaning facilities;
the«=e monies are transferred to the WQATF when it is time to make expenditures. The State
no icd that approximately $1.5M is annually expended from the Hazardous Waste
Management Trust Fund, but provided no information on additions, expenditures, or
obligations. The fund receives money from cost recoveries, interest, penalties, and transfers
and can be used for many of the same activities as the WQATF.
CLEANUP POLICIES AND CRITERIA
Cleanup criteria are site-specific based on risk assessments and any applicable
standards. Water quality criteria, MCLs/MCLGs, background levels, risk assessment, and
EPA guidelines are used to establish cleanup levels. Risk levels for risk assessment are set at
10* for carcinogens and a Hazard Index (HI) of 1 for non-carcinogens.
PUBLIC PARTICIPATION
No provisions require citizen participation. Ad hoc citizen involvement varies on a
site-specific basis, and may include door-to-door outreach or public meetings if requested.
Additionally, Chapter 119 of the Florida Statutes, requires that all State records, including
site cleanup documentation, shall at all times be open for personal inspection by any person.
ENFORCEMENT
Liability
Legal authorities include strict, joint and several liability, administrative and consent
order authority, and cost recovery. Punitive damages are not available. Civil penalties of up
to $25K per day are available under the hazardous waste statute. The Department does not
have unilateral order authority. The enforcement process includes warning notices, consent
orders, notices of violations, civil suits, and appeals.
Natural Resource
State law authorizes collection of natural resource damages for coastal oil spills and
for damage to coral reefs. In general, these authorities have not been applied to hazardous
substances cleanups.
Property Transfer
The State has no property transfer provisions.
191
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has no programs. Contaminated sites are cleaned up, in most cases, by
responsible parties under State enforcement authority. Sites without viable responsible
parties are handled by the State-funded cleanup program or by EPA. The State does provide
technical assistance to help expedite cleanups at potential brownfields sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Florida has SSCAs with the U.S. EPA.
192
-------
GEORGIA
SITES
NPL Sites State Sites
Final: 13 Known and Suspected: 904
Proposed: 1 Identified as Needing Attention: 82
Deleted: 1 On Inventory or Priority List: 351
STATUTORY AUTHORITIES
The Hazardous Site Response Act of 1992 (HSRA), O.C.G.A. 12-8-90 et seq., authorizes a
cleanup fund, enforcement authorities, strict, joint and several liability, punitive damages,
property transfer provisions and a priority list. The Hazardous Waste Management Act,
O.C.G.A. 12-8-60, also provides some enforcement and remedial action authority.
PROGRAM ORGANIZATION AND FUNDING
The Georgia Department of Natural Resources, Environmental Protection Division,
Hazardous Sites Response Program had 18 FT Es at the end of FY 1995, funded entirely by
the Hazardous Waste Trust Fund. Since then, 13 more positions have been authorized for the
Program, and they are being filled currently. The State Law Department provides legal
support with one FTE attorney.
CLEANUP ACTIVITIES
Approximately 75 remedial actions and 33 removal actions are currently underway at
non-NPL sites. Eight removals were completed last fiscal year at non-NPL sites. EPA
remedial actions are underway at eight NPL sites.
CLEANUP FUNDING
The Hazardous Waste Trust Fund had a balance of $13,029,281 at the end of the fiscal
year (6/30/95). Collections for FY 1995 were $11,535,443. $2,538,000 were expended during
the year - all on non-NPL activities and program support, with the exception of operations
and maintenance at one NPL site. $4.9M was obligated for non-NPL activities. The Fund
receives monies from fees on solid and hazardous waste management activities and from
penalties and interest Collection of the fees is suspended when the balance in the Fund
equals or exceeds $25M and is not resumed until the unencumbered balance is less than or
equal to S12.5M. The Fund may be used for emergency response, site investigation,
removals, studies and design, remedial action, operations and maintenance, CERCLA match,
pollution prevention, and program administration.
193
-------
CLEANUP POLICIES AND CRITERIA
The agency published its inventory of sites beginning in 1994. The HSRA required the
Board of Natural Resources to adopt regulations establishing cleanup standards. These
standards have been promulgated. Risk levels used are 1CT5 for cancer risks, and 1C4 for
Class C carcinogens.
PUBLIC PARTICIPATION
Pursuant to statute, the agency has adopted regulations providing for public
participation in developing the site inventory and the cleanup process.
ENFORCEMENT
Liability
The statute provides for retroactive, strict, joint and several liability, punitive
damages at least equal to the State's costs and not more than three times those costs,
penalties up to $25K per day, cost recovery, site access, and administrative orders.
Natural Resource Damages
The HRSA does not address natural resource damages and the State has no program
for collecting NRD.
Property Transfer
The owner of any site listed on the hazardous site inventory as having a known
release and as needing cleanup must include a notice of that listing in any deed or other
document that creates an interest in or grants a use of the property. The owner of a listed site
must also file an affidavit that the site is listed and must be cleaned up with the clerk of the
superior court for the county or counties in which the site is located.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State does not have either a voluntary or brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Georgia has a CPCA and SSCAs with the U.S. EPA.
194
-------
KENTUCKY
SITES
NPL Sites State Sites
final: 20 Known and Suspected: 1000
Proposed: 0 Identified as Needing Attention: 600
Delisted: 0 On Inventory or Priority List 15
STATUTORY AUTHORITIES
Kentucky Rev. Stat Ann. §224.46-580(13)(1980) establishes the Hazardous Waste
Management Fund and gives provisions for expenditures. KRS 224.01-400 establishes release
notification, reportable quantities, enforcement authorities and provides for an inventory
and priority list, contingency plan for emergency response cleanup and lien provisions.
PROGRAM ORGANIZATION AND FUNDING
The Natural Resources and Environmental Protection Cabinet, Division of Waste
Management, Superfund Branch has 28 full-time staff for federal and State cleanup sites. The
Office of Legal Services provides legal support. Half of the funding for Kentucky's program
comes from Federal grants; the other half is funded through the State's general fund.
CLEANUP ACTIVITIES
Since the start of the State's program, approximately 250 non-NPL sites have been
fully remediated. Thirty-nine remedial actions at non-NPL sites were completed during the
last fiscal year. Remediation is currently underway at approximately 100 non-NPL sites.
More than 75 removals at non-NPL sites have been conducted since the start of the State's
program. Removals were completed at approximately 20 non-NPL sites during FY95, and
removals are currently underway at five non-NPL sites. Remedial actions have been
completed at six NPL sites, and nine removals have been conducted at NPL sites since the
start of the program.
CLEANUP FUNDING
The Hazardous Waste Management Fund had a balance of 51.77M at the end of the
fiscal year. There is a $6M cap on the fund. A total of $2.78M was added to the Fund during
the year, and $1.6M was paid out ($1.5M for work at non-NPL sites). A total of 52.4M was
obligated during the year (S2.04M for work at non-NPL sites).
Assessments on hazardous waste generators are a significant source of funding, while
cost recoveries, interest, and penalties are additional sources of funding. The Fund 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.
195
-------
CLEANUP POLICIES AND CRITERIA
The State has established cleanup standards by regulation. Responsible parties are
permitted to select either a risk-based standard or background levels as the basis for cleanup.
The risk based standards are based upon a target nsk level of 10* for carcinogens and a
Hazard Index of 1 for non-carcinogens.
PUBLIC PARTICIPATION
Kentucky has a Public Information Repository for NPL and State priority .list sites. It
is standard practice to hold public meetings for these sites. Regulations provide for public
notice and comment.
ENFORCEMENT
Liability
Kentucky has retroactive, strict, joint and several liability standards. The State has
civil penalty authority for up to $25 K per day.
Natural Resource Damages
Kentucky does not have a natural resource damages program.
Property Transfer
Kentucky requires placement of deed notices and/ or deed restrictions in certain
circumstances at sites where there has been a release of a hazardous substance, pollutant or
contaminant The State also maintains a database of sites where there has been a release.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Kentucky has no formal voluntary cleanup program but voluntary cleanups are
permissible under its regular cleanup program.
Kentucky is working on a brownfields program. The State is participating in a City of
Louisville initiative with an empowerment zone, where one site has been identified and
cleanup and redevelopment are underway.
FEDERAL/STATE PARTNERSHIPS
For FY95, Kentucky has a CPCA and SSCAs with the U.S. EPA.
196
-------
MISSISSIPPI
SITES
NFL Sites State Sites
Fined: 2 Known and Suspected: 770
Proposed: 2 Identified as Needing Attention: 156
Delisted: 1 On Inventory or Priority List: 133
STATUTORY AUTHORITIES
The Solid Waste Disposal Act of 1974 (amended numerous times, most recently in 1990),
Miss. Code Ann. § 17-17-29(4) and (6), enables State to take response action.
The Property Transfer Act (1993), Miss. Code Ann. § 89-1-501 to -503, requires
disclosure before transfer.
The 1988 Amendments to the Air and Water Pollution Control Act, Miss. Code Ann, §§
49-17-1 etseq., authorize response actions and create the Pollution Emergency Fund (Miss.
Code Ann. § 49-17-68).
PROGRAM ORGANIZATION AND FUNDING
Department of Environmental Quality, Office of Pollution Control, Hazardous Waste
Division has a RCRA and CERCLA section. The CERCLA section has 11 FTE employees.
These positions are funded almost entirely by State general funds and Federal grants. Four
staff attorneys handle all DEQ work.
CLEANUP ACTIVITIES
At non-NPL sites, Mississippi has 125 remedial actions underway. Five remedial
actions were completed in the last fiscal year; and over 30 since the beginning of the
program. Eight removals are underway at non-NPL sites; 25 were completed in the last fiscal
year; and over 50 since the beginning of the program.
At NPL sites, there are two remedial actions underway, and one site has been fully
remediated since the start of the program. Two removals at NPL sites have been completed
since the start of the program.
CLEANUP FUNDING
The Pollution Emergency Response Fund was created in 1988 and has a balance of
$1.3M (6/30/95). It received $669K during the fiscal year, and paid out S2.5M, all for work
on non-NPL sites. The Fund is authorized to receive money from civil penalties from the
pollution regulatory programs and cost recoveries. The Fund may be used for site
investigation, studies and design, removals, and emergency response. Mississippi
appropriates on a site-by-site basis for CERCLA match.
197
-------
CLEANUP POLICIES AND CRITERIA
The State considers background level, water quality criteria, MCLs, EPA guidelines,
risk assessment with a generic risk level of 10"*, and U.S. EPA's Hazard Index to determine
cleanup levels. It uses MCLs for groundwater, TSCA levels for PCB cleanups, and the least -
restrictive of the above cleanup standards for all other contaminants.
PUBLIC PARTICIPATION
Policies require a public comment period, direct mailings, and possibly public
meetings during the remediation process. Statutes and regulations do not address these
requirements. Local governments and the governor are notified when an emergency order is
issued.
ENFORCEMENT
Liability
Mississippi has restroactive, strict, joint and several liability. The DEQ must use its
general enforcement authorities or its authorities in other regulatory statutes to compel RP
action and for enforcement action. The Act provides that any person responsible for creating
an immediate need for remedial or cleanup action involving solid waste shall be liable for
the cost of such action and that the Department may recover its cost of response. The Act
gives DEQ authority to regulate any contamination of the air and waters of Mississippi. The
State has civil penalties of $25K per violation plus the cost of removal and/or remediation
and the cost of restocking and/or replenishing killed fish. There are no punitive damages.
Natural Resource Damages
Since 1972, State law has allowed DEQ to recover cost of restocking and/or
replenishing killed fish and game. No claims are pending.
Property Transfer
§89-1-501 - 523 was passed in 1993, requiring disclosure of the presence of hazardous
substances before transfer.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Mississippi has no formal voluntary program or brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Mississippi has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
198
-------
NORTH CAROLINA
SITES
NPL Sites State Sites
Final: 23 Known and Suspected: 1029
Proposed: 0 Identified as Needing Attention: 801
Delisted: 1 On Inventory or Priority List: 183
STATUTORY AUTHORITIES
The Inactive Hazardous Sites Response Act of 1987, N.C. Gen. Stat. §§130A-310 et secf.
(1987, as amended 1989,1991,1994,1995) authorizes the Inactive Hazardous Sites Cleanup
Fund, provides authority to order RPs to conduct assessments and cleanup and to recover
costs; it establishes a priority list and requirements for filing notices with registers of deeds.
Recent amendments affect the State's existing voluntary cleanup program. §130A-310.9 & .12.
The Solid and Hazardous Waste Management Act, N.C. Gen. Stat §130A-290 et $eq.,
(1969, as amended 1973,1975,1977,1979,1981,1983,1985,1987,1989, and 1991) authorizes
the Emergency Response Fund for emergency hazardous waste cleanup, and provides
enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Solid Waste Management Division of the Department
of Environment, Health, and Natural Resources has 28.75 FTE staff. Legal support is
provided by one attorney and 0.5 paralegal from the North Carolina Department of Justice.
Funding for the Section comes 70% from EPA, 21% from the State's general fund, and 9%
from cleanup agreements with the Department of Defense.
CLEANUP ACTIVITIES
Remedial actions are underway at 11 non-NPL sites. Remedial actions have been
completed at 14 non-NPL sites since the start of the program, including three during the last
fiscal year. Approximately ten removals were completed at non-NPL sites during the last
fiscal year, and approximately 100 have been completed since the start of the program.
Remedial actions are underway at ten NPL sites. Remedial actions have been
completed at one NPL site. Approximately four removals are currently underway at NPL
sites.
Of the 801 sites evaluated and determined to need attention, 674 are tinder the
jurisdiction of the State's superrund section; the remainder are either NPL sites or fall under
another federal or State program.
199
-------
CLEANUP FUNDING
The Inactive Hazardous Sites Cleanup Fund (IHSCF) had a balance of $2.5M at the '
end of the fiscal year. It received $400K and no funds were paid out or obligated from it
during FY95. The IHSCF originally received most of its money from appropriations, but no -
appropriations have been made to the fund since FY88-89. Penalties are the most significant
source of funding, as the IHSCF receives RCRA penalty money when the Emergency
Response Fund exceeds its $500K cap. Cost recoveries and interest are also minor sources of
runding. The IHSCF can be used for site investigation, studies and design, removals,
emergency response, remedial actions, and the cost of recording on deeds notices of Inactive
Hazardous Substance or Waste Disposal Sites.
The Emergency Response Fund is used only for emergency response and gets all of its
funding from RCRA penalties. It is capped at S500K. Excess funds are transferred to the
IHSCF. It paid out $53,576 during the last fiscal year. The Emergency Response Fund is
administered by the Hazardous Waste Section of the Solid Waste Management Division.
The Cost Share Trust Fund, which is used only for CERCLA match at NPL sites, had a
balance of $4.8M at the end of the fiscal year. It gets its funding from appropriations. The
Fund received $800K during the year and S200K was paid out. The remainder of the fund,
$4.5M, is obligated for use on NPL sites.
CLEANUP POLICIES AND CRITERIA
As required by statute, the Secretary of DEHNR will ascertain the cleanup level in
conformance with CERCLA and SARA requirements.
The State requires consistency with the NCP. It uses a health-based risk assessment,
with an acceptable risk level of 10"* and a Hazard Index of 1. Cleanup levels are calculated
for each contaminant by environmental media based on site-specific risks. Water quality
criteria, groundwater standards and other applicable State standards are also used where
appropriate, including protection of groundwater from soil contaminant residuals.
PUBLIC PARTICIPATION
State funded enforcement cleanups require: public notice of the remedial action plan,
three weeks notice in a newspaper, a 45 day comment period, a public meeting at the
Secretary's discretion, and notice to those requesting to be placed on a mailing list Copies
must be filed with the register of deeds and copies placed in local libraries and the County
Health Director's Office. Public participation requirements are reduced for RP voluntary
cleanup. RP Voluntary Remedial Actions require notice of the remedial action plan to be sent
to those requesting to be placed on a mailing list.
ENFORCEMENT
Liability
The Secretary of DEHNR must seek voluntary action by RPs before issuing orders or
spending State funds under the Inactive Hazardous Sites Response Act The State has strict,
joint and several, and retroactive liability The State has authority to issue orders for cleanup,
to order monitoring and assessment, and to seek injunctions to conduct assessments and
200
-------
correct imminent hazards. The State cannot impose punitive damages. The Inactive
Hazardous Sites Response Act has no provision for civil penalties. However, 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.
Natural Resource Damages
North Carolina has no natural resource damages program.
Property Transfer
If the State mails an order to a property owner, the owner must register a notice of an
Inactive Hazardous Substances Waste Disposal Site with the grantor index in the deeds
office. At the next property transfer, the notice will appear on the deed.
In 1995, the legislature enacted a residential property disclosure act, which requires a
seller of residential property to disclose the presence of hazardous substances.
VOLUNTARY AND BROWNFIELDS PROGRAMS
In 1987, the legislature enacted voluntary cleanup provisions. These cap remedial
action costs for volunteers at $3M. Any PRP may participate, and there is no requirement to
pay for State oversight or administrative costs. Under recent statutory amendments in 1994
and 1995, the voluntary cleanup program will be privatized, so that certification of cleanups
will be a private transaction.
The State currently does not have any formal "brownfields initiative" that would
parallel the EPA program, but is receptive to receiving specific proposals for a site or area.
FEDERAL/STATE PARTNERSHIPS
For FY95, North Carolina has a CPCA and SSCAs with the U.S. EPA.
201
-------
SOUTH CAROLINA
SITES
NPL Sites State Sites
Final: 24 Known and Suspected: 550
Proposed: 0 Identified as Needing Attention: 120
Delisted: 1 On Inventory or Priority List: 120
STATUTORY AUTHORITIES
The Hazardous Waste Management Act (1980, as amended 1989), South Carolina Code
Ann. §§44-55-10 through -840 and §44-56-10-330, authorizes the Hazardous Waste
Contingency Fund and provides for a priority list, the authority to take or compel action, and
provisions governing property transfer.
PROGRAM ORGANIZATION AND FUNDING
The Department of Health and Environmental Control, Environmental Quality
Control, Bureau of Solid and Hazardous Waste Management employs 30 FTE staff. One
attorney within the Department's Legal Office provides legal support. Federal grants account
for 73% of staff funding, 17% comes from the cleanup fund, and 10% comes from the State
general funds.
CLEANUP ACTIVITIES
At non-NPL sites, four remedial actions are underway and two have been completed
since the start of the program. One removal is underway at non-NPL sites, and
approximately 22 have been completed since the start of the program.
At NPL sites, 14 remedial actions are underway. Two remedial actions have been
completed since the start of the program. Nine removals have been completed at NPL sites
since the start of the program.
CLEANUP FUNDING
The Hazardous Waste Contingency Fund is an umbrella for two separate accounts;
the permitted sites (RCRA) and uncontrolled sites (Superfund). The latter account comprises
approximately 75% of the Fund. Roughly 80-90% of revenues come from fees.
Appropriations and cost recovery also contribute. The Fund balance is $18,635,064
(6/30/95). Additions to the fund during the last fiscal year were $2,140,913. Expenditures
were $804,045; $61,435 on NPL sites and $742,610 on non-NPL sites. Approximately $700K
were encumbered during the fiscal year, all for work on non-NPL sites. These expenditures
and encumbrances are at much lower levels than in previous years. The Fund may be used
for site investigation, emergency response, removals, studies and design, remedial actions.
202
-------
operations and maintenance, CERCLA match, and administration. The State must exhaust
available Federal and RP funds before using the Fund on particular sites.
CLEANUP POLICIES AND CRITERIA
Site-by-site cleanup decisions are to be consistent with the NCP. Generally, the State
applies MCLs for groundwater cleanup and background levels for soil cleanup. The State
may also apply water quality criteria and EPA guidelines where appropriate. If no standard
exists, a risk assessment may be used. Risk levels of 10"* and 10* are applied for nsk.
assessment; a cleanup to 10* means that further action is not required.
PUBLIC PARTICIPATION
The State has no formal requirements, but provides informal opportunities for notice,
comment, and participation on an ad hoc basis.
ENFORCEMENT
Liability
South Carolina employs strict, joint and several, and retroactive liability. The law
explicitly adopts CERCLA §107 and implicitly adopts CERCLA in toto. South Carolina can
levy civil penalties of $25K per day for violations, and treble damages for failure to clean up
a site as ordered. However, stipulated penalties of $1K per day for violations of cleanup
agreements have been eliminated.
Natural Resource Damages
Natural resouce damages may be assessed under the Pollution Control Act, but this
authority has not been used for hazardous substance sites. Rather, the Department of Natural
Resources has acted as trustee for natural resource damages assessable under CERCLA or
the Oil Pollution Act One oil spill claim has been recovered in the amount of $3M, with
$800K going to the State.
Property Transfer
HWMA requires mat property that has been used as a strategic disposal facility must
record notice of the disposal on the deed.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Voluntary cleanups are pursued under the regular State program; any PRP or
potential purchaser may participate. The voluntary program was established in 1989 by
guidance document State support is funded from the Contingency Fund and from
appropriations; PRPs are not charged for State services.
203
-------
A brownfields policy is currently under development as part of the voluntary cleanup
program. Participation will be by non-PRPs. One site is currently under negotiation in
connection with this policy.
FEDERAL/STATE PARTNERSHIPS
For FY95, South CaroUna has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
204
-------
TENNESSEE
SITES
NFL Sites State Sites
Final: 17 Known and Suspected: 1270
Proposed: 1 Identified as Needing Attention: 198
Delisted: 0 On Inventory or Priority List 156
STATUTORY AUTHORITIES
The Hazardous Waste Management Act of 1983 (as amended 1986,1988,1989,1990,
1991,1994, and 1995), Part II, 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 a priority list and requires notice on
deeds for any site listed. Recent amendments allow the State to spend fund monies even if a
site is not on the list provided that an order is in place, and to fund orphan shares of sites in
the recently created voluntary cleanup program. Both the voluntary cleanup oversight and
assistance program and a dry cleaner environmental response program were added by
amendment
PROGRAM ORGANIZATION AND FUNDING
The Tennessee Department of Environment and Conservation (DEC), Division of
Superfund has 64 FTE staff. Legal support is provided by 1.5 attorneys in DEC and 0.5
attorney in the AG's office. Staff and administrative costs are funded from the Hazardous
Remedial Action Fund (59%), Federal grants (26%), and the State's general fund (15%).
CLEANUP ACTIVITIES
Remedial or removal actions have been completed at 341 non-NPL sites since the start
of the State's program (including 75 emergency responses). Although the State does not
maintain historic data differentiating remedial actions and removals, 79 of these sites were
delisted from the State list (suggesting these should be classified as remedial actions).
Currently, mere are seven remedial actions and six removal actions underway at non-
NPL sites. During the last fiscal year, four remedial actions and 13 removal actions were
completed at non-NPL sites.
Two remedial actions are underway at NPL sites. Eleven remedial actions and 11
removals have been completed at NPL sites since the start of the program.
CLEANUP FUNDING
The Hazardous Waste Remedial Action Fund had a balance of $8,036,052 at the end
of the fiscal year (6/30/95). $5,426,626 was added to the fund during the year. Expenditures
were $3,154,805, including program administration. Direct expenditures for NPL sites
205
-------
totaled $59K. Expenditures at non-NPL sites totaled $1,423,000. Significant sources of hind
monies include appropriations, cost recoveries, and fees on transporters and generators.
Interest and penalties are minor fund sources.
The Fund may be used for program administration, emergency response, site
investigation, removals, remediation, studies and design, O&M, CERCLA match, and grants
to local governments.
CLEANUP POLICIES AND CRITERIA
The State uses water quality criteria, MCLs, background levels, risk assessment, and
EPA guidelines in setting cleanup levels. If no standard is available, a risk assessment is
conducted to set site-specific levels. Risk levels of 10"4 to 10"* are applied on a case-by
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
In 1994, the legislature established a voluntary cleanup program open to all sites that
fall within the cleanup program. Incentives for participation include: the avoidance of a
public hearing and placement on the State's list; no notice required to be recorded in the
deed records; no liens; release of liability pursuant to performance under consent order; and
payment of orphan shares. State oversight is funded by PRP payment of actual costs and a
$5K participation fee.
There is no formal brownfields program, but the State is working with business and
local governments to bring brownfields sites into the voluntary cleanup program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Tennessee has a CPCA and SSCAs with the .U.S. EPA.
207
-------
R
EGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
208
-------
ILLINOIS
SITES
NPL Sites State Sites
Final: 38 Known and Suspected: 5000
Proposed: 1 Identified-as Needing Attention: 950
Deleted: 2 On Inventory or Priority List: 120
STATUTORY AUTHORITIES
The Environmental Protection Act (1970, amended every year from 1983-1993, and
1995), established the Hazardous Waste Fund and provides for enforcement, cost recovery,
and punitive damages. The 1995 amendments (effective 7/1/96) provide for proportional
liability and move $2M per year from a solid waste cleanup fund to the Hazardous Waste
Fund.
The Responsible Property Transfer Act, Public Act §86-679 (1988), mandates
environmental disclosures by transferors.
PROGRAM ORGANIZATION AND FUNDING
The Remedial Project Management Section in the Bureau of Land, Illinois
Environmental Protection Agency (IEPA), has 105 FTE staff. Legal support is provided by 7
FTE attorneys in the IEPA Division of Legal Counsel, with additional assistance available
from the Attorney General's Office. Staff and administration funding is 34% supported by
Federal grants, with 66% from the State's cleanup fund.
CLEANUP ACTIVITIES
Remedial actions are underway at three non-NPL sites; 40 have been completed since
the start of the program, including 11 in FY95. Three removals are underway at non-NPL
sites; 35 have been completed since the start of the program, including three in FY95. Of the
non-NPL sites, a substantial number of the remedial actions and removals have been
conducted under Illinois' voluntary cleanup program.
At NPL sites five remedial actions are underway; four remedial actions have been
completed in FY95; and ten remedial actions have been completed since the start of the
program. Four removal actions were completed at NPL sites in FY95 and eight have been
completed since the beginning of the program.
CLEANUP FUNDING
The Illinois Hazardous Waste Fund had a balance of $6.4M at the end of the fiscal
year (6/30/95). It received income of $3.86M during FY95, primarily from the fees collected
for transport and disposal of hazardous wastes, but also from penalties and cost recoveries.
Expenditures were $2.34M, S1.92M of which was for non-NPL sites; and S2.13M was
209
-------
obligated. Funds may be used for site investigation, studies and design, emergency response,
removals, remedial actions, CERCLA match, O&M, program administration, and natural
resource assessment (but not restoration).
CLEANUP POLICIES AND CRITERIA
Water quality criteria, MCLs and MCLGs, background levels, soil standards, and
Illinois groundwater quality standards are applied to determine cleanup levels. Cleanup
levels are based on a risk-based tiered approach for the protection of groundwater, and the
protection of human health from other exposures. Risks between IQ4 -10"* are evaluated on a
site specific basis.
The 1995 amendments establish a risk-based system that considers the present and
future land use of the site. Three Tiers of risk-based remediation objectives will be
established by regulation.
PUBLIC PARTICIPATION
By policy, community relations coordinators are assigned to sites; coordinators
emphasize direct contact in small groups, or one-to-one communication.
At NPL sites, NCP rules apply and the required public meeting is conducted as a
formal public hearing with a court reporter and transcript.
ENFORCEMENT
Liability
Liability is strict, joint and several, and retroactive, but after July 1,1996 any person
not subject to federal cleanup requirements under RCRA or CERCLA or State underground
storage tank law may elect proportionate liability. Civil penalties for violations of the Act are
authorized up to $50K for the first day of violation, and $10K for each subsequent day of
violation. Treble damages are available.
Natural Resource Damages
The State lacks authority to pursue natural resource damages claims independent of
CERCLA.
Property Transfer
The lUmojs Responsible Property Transfer Act (Illinois Public Act 86-679) mandates
environmental disclosures by transferors.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The voluntary program was established by statute in 1986-87 (22.2(m) of IEPA). Non-
NPL, non-RCRA, non-enforcement sites are eligible to participate in the program. IEPA is
responsive to participant time frames or deadlines, which is an incentive for participants.
210
-------
The State's participation is funded by private fees for services rendered, which includes
actual salaries plus overhead. On average, the voluntary cleanup costs range from $500-
$10K.
The State brownfields program was amended by Title XVII of the 1995 amendments
and by policy. All sites except those on the NPL, covered by RCRA, or under federal or court
order to cleanup, are eligible for inclusion in the program. Four hundred to 600 sites have
been identified or included in the program, and cleanup is underway at 400 sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Illinois has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
21
-------
INDIANA
SITES
NPL Sites State Sites
Final: 36 Known and Suspected: 2500
Proposed: 1 Identified as Needing Attention: 200
Deleted: 5 On Inventory or Priority List: 63
STATUTORY AUTHORITIES
The Hazardous Substance Response Trust Fund Act, Ind. Code §13-7-8.7 (1986, as
amended 1987,1988,1989, and 1991), establishes a cleanup fund and authorizes enforcement
actions.
The Environmental Management Special Fund, Ind. Code §13-7-13-2 (1972), was set up to
receive money from penalties and various fees.
The Responsible Property Transfer Law, Ind. Code §13-7-22.5 (1990), provides for full
environmental disclosures for transfer of real property which is listed on CERCLIS, subject to
SARA Title III, or which contains a regulated underground storage tank.
The Voluntary Remediation Program was established by Ind. Code §13-7-8.9 (1993).
PROGRAM ORGANIZATION AND FUNDING
The Office of Environmental Response, Indiana Department of Environmental
Management (IDEM) has 53 FTE staff members working on NPL and non-NPL sites, federal
facilities, voluntary cleanups and emergency responses. The State Cleanup Section has five
staff members and the Voluntary Section has eight FTEs. Legal support is provided by four
attorneys in the IDEM Office of Legal Counsel; the Attorney General's Office provides two
FTEs. Staffing and administration are funded 69% from the State general fund, 6% from
cleanup funds, and 25% from Federal grants.
CLEANUP AcnvrriEs
Seventeen remedial actions are underway at non-NPL State sites. One non-NPL
remedial action was completed in FY95 and three have been completed since the start of the
program. Eight removals are underway at non-NPL sites, 12 non-NPL removals were
completed in FY95, and 40 non-NPL removals have been completed since the start of the
program.
Sixteen remedial actions are underway at NPL sites. Five remedial actions were
completed at NPL sites during FY95, and 11 have been completed since the start of the
program. Two removals are underway at NPL sites, no removals were completed at NPL
sites during FY95, and 23 have been completed since the start of the program.
212
-------
CLEANUP FUNDING
The Hazardous Substances Response Trust Fund (HSRTF) had a balance of S27.55M
at the close of the fiscal year (6/30/95). The HSRTF is funded by taxes, penalties, cost
recovery, punitive damages, interest, and appropriations. Taxes are the most significant
source of funds. The HSRTF shows additions of S87.3M during FY95, but virtually all of that
was roll-over investments and not included in the year-end balance. Expenditures were
$1.68M (S0.96M of which was for non-NPL sites) and $0.81 M was obligated (S0.72M for non-
NPL sites). The HSRTF may be used for site investigation, emergency response, removals,
studies and design, remedial actions, O&M, grants to local government, program
administration and CERCLA match.
IDEM als"o has the Environmental Management Special Fund, which had a balance of
$22.%M at the end of FY95. The sources for this Fund are penalties, fines, fees and
appropriations, with appropriations being the significant source. Additions to the Fund
during FY95 amounted to $6.56M. Non-NPL sites received $253,734 in expenditures from
this Fund in FY95. The Special Fund may be used for emergency response, replacement of
water supplies, and grants to local government, as well as other non-cleanup environmental
projects.
CLEANUP POLICIES AND CRITERIA
Water quality criteria, MCLs and MCLGs, background levels and EPA guidelines are
applied where appropriate. Indiana interim groundwater standards require the application
of MCLs where an aquifer is or may be a source of public drinking water. The State uses nsk
assessment on a site-specific basis, with guidance specifying risk levels between 10"1 -10*.
The State also has a Voluntary Cleanup Guidance which is risk-based and recognizes future
land use.
PUBLIC PARTICIPATION
On State-funded cleanups, the State's policy is to follow CERCLA guidance on public
notice, comment, hearings and document availability. The voluntary remediation program
requires public notice and a public comment period before the Commissioner may approve a
proposed work plan. The Voluntary Remediation Program statute also requires hearings and
document availability.
ENFORCEMENT
Liability
Liability is strict, joint and several, and retroactive. Civil penalties are authorized up
to $25K per day per violation, and treble damages are available.
213
-------
Natural Resource Damages
The State's natural resource damages program commenced in 1988, using CERCLA
authority and has recovered 53.8M in 12 settlements. There are 6 claims currently pending,
seeking $7M - $15M. IDEM cooperates with the Department of Natural Resources to perform
pre-assessment screens and damage investigations. Three natural resource restoration
actions are underway at a cost of about $3M.
Property Transfer
Indiana law requires site examination and disclosure by the transferor of releases and
other relevant conditions on sites subject to the Responsible Property Transfer Law, effective
1/1/90.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The Voluntary Remediation Program created by statute in 1993 is a separate cleanup
program. Any site not under a pending enforcement action or in an emergency condition is
eligible. Incentives to participate include certificates of completion and covenants not to sue.
The State's participation is funded by fees and cost recovery, with a $1K initial fee plus the
State's costs if they exceed the flat fee.
The State recently established a brownfields program by policy. Approximately 70
sites are covered.
FEDERAL/STATE PARTNERSHIPS
For FY95, Indiana has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
214
-------
MICHIGAN
SITES
NPL Sites State Sites
Final: 74 Known and Suspected: N/A
Proposed: 4 Identified as Needing Attention: 2,764
Deleted: 6 On Inventory or Pnonty List: 2,764
STATUTORY AUTHORITIES
The Michigan Natural Resources and Environmental Protection Act, PA 451 of 1994, Parts
193 (Bond Authorization), 195 (Bond Implementation), and 201 (Environmental
Remediation), authorizes the Department of Environmental Quality to clean up
contaminated sites, and provides for a cleanup fund, enforcement, liability, cost recovery,
public participation, a priority list, voluntary cleanups and citizen suits.
PROGRAM ORGANIZATION AND FUNDING
The Environmental Response Division in the Department of Environmental Quality
has responsibility for cleanup activities. It employs 298 staff members. The Attorney
General's Office provides legal support with 8 FTE attorneys. Funding for staff and
administration comes 75% from the State's cleanup fund, 10% from the State's general fund,
and 15% from Federal grants.
CLEANUP ACTIVITIES
The State has 69 remedial actions underway at non-NPL sites. Since the start of the
program it has completed 155 remedial actions at non-NPL sites, with 28 completed during
FY95. Removals are underway at over 181 non-NPL sites, with 4873 completed since the start
of the program including 1284 in FY95.
Thirty six remedial actions are underway at NPL sites; 19 remedial actions have been
completed since the start of the program; and eight were completed during FY95. Eight
removals are currently underway at NPL sites. Twenty-eight removals have been completed
since the start of the program, but none were completed at NPL sites last year.
CLEANUP FUNDING
The Environmental Response Fund had a balance of $19M at the end of the fiscal year
(9/30/95). The DEQ obligated $0.5M for non-NPL cleanups from these funds. ERF funds
may be used for site investigations, emergency response, removals, studies and design,
remedial actions, natural resource restoration, O&M, CERCLA match, and program
administration. It is funded primarily from appropriations and cost recoveries, with minor
contributions from interest and penalties. As of October 1,1995, $45M of the initial $425M
General Obligation Bond had not been appropriated. The appropriated Environmental
215
-------
Protection Bond Fund had a balance of $165M at the end of the fiscal year (9/30/95), with
additions of $62M and obligations of $50M during the year, all for non-NPL cleanups. This
Fund is funded entirely by the sale of bonds. The Bond Fund can be used for site
investigation, emergency response, removals, studies and design, remedial actions, CERCLA
match, O&M, program administration, and grants to local governments.
CLEANUP POLICIES AND CRITERIA
The State has promulgated hazardous site remedial standards, and also uses water
quality criteria, MCLs and MCLGs, background levels, risk assessment, and EPA Guidelines.
The new cleanup program uses land-use-based cleanup criteria for residential, commercial,
and industrial uses, with a tiered system that starts with established numerical standards for
identified contaminants or allows site-specific risk assessments to determine cleanup levels.
Institutional and site-specific exposure controls may be used to achieve the public health risk
goal. The State uses a risk goal of Ifr5 for carcinogens and a Hazard Quotient of 1, assuming
100% exposure from the site, for noncarcinogens.
PUBLIC PARTICIPATION
The Michigan Natural Resources and Environmental Protection Act provides for
public notice and comment, hearings and document availability during the cleanup process.
ENFORCEMENT
Liability
Prior to June 5,1995, liability was strict, joint and several, and retroactive for owners,
operators, generators and transporters. A person who becomes an owner or operator after
June 5,1995, may obtain an exemption from liability for existing contamination by
performing a baseline environmental assessment. For prior owners and operators liability is
based on causation; they are liable if they are responsible for an activity causing a release.
Liability is joint and several, and retroactive for generators, transporters, owners and
operators responsible for a release, and for new owners and operators that do not perform a
baseline environmental assessment Civil penalties are authorized up to $1K per day for
failure to comply with a written request of the Director to undertake a response activity; up
to $10K per day for violations of law or rules; and up to $25K per day for violation of a
judicial cleanup order. Treble damages are available.
Natural Resource Damages
The State has a natural resource damages program, started in 1987, which is
authorized by Parts 201 and 31 (Water Resources Protection) of NREPA. The program has
recovered $5.69M in damages from 6 cases. Currently, there are 5 natural resource claims
pending under State law. All NRD claims are filed under State law, although some also
216
-------
include claims under CERCLA. Six natural resource restoration actions are underway, and 1
has been completed.
• Transfer
Part 201 of NREPA, the public use deed act, and general property tax law govern
transfers of contaminated property. Liens and superliens are available. The seller is required
to disclose contamination or the presence of hazardous substances to the buyer and on the
deed. A buyer may obtain an exemption from liability for existing contamination by .
performing a baseline environmental assessment. The new owner or operator must also
exercise due care with respect to existing contamination. The State also maintains a database
of known or listed sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The Michigan voluntary cleanup program is an integral part of the overall cleanup
program. It facilitates voluntary cleanup through clear and flexible cleanup criteria and self
implementing statutory language (Act 451 part 201). Anyone is eligible to participate, and
will benefit from letters of completion, removal from the list of contaminated sites, clear
cleanup criteria and a self implementing statute. The State's participation generally is
publicly funded unless a responsible party enters into an AOC with the State.
The State brownfields program was established by statute (Act 451 parts 193,195 and
201) and has reuse/redevelopment as a priority. The criteria for grants include economically
distressed areas and areas with potential for redevelopment. To date, over 121 sites have
been included in the program, of which 21 have received site reclamation grants, 35 have
received site assessment grants, 58 have covenants not to sue, and more than seven are State
bond funded sites. Cleanup is underway at approximately 70 sites, and 79 have
commitments for redevelopment (58 are sites with CNTS, 21 have site reclamation grants).
FEDERAL/STATE PARTNERSHIPS
For FY95, Michigan has a CPCA, a SMOA, and SSCAs with U.S. EPA.
217
-------
MINNESOTA
SITES
NPL Sites State Sites
Final: 47 Known and Suspected: 3,000
Proposed: 0 Identified as Needing Attention: 215
Deleted: 7 On Inventory or Priority List: 181
STATUTORY AUTHORITIES
The Minnesota Environmental Response & Liability Act (MERLA), Minn. Stat §§1158.01
through .24 (1983, as amended 1984,1985,1986,1987, 1990,1992,1993,1994, and 1995),
establishes the State Fund and provides for strict, joint and several liability, injunctive relief,
civil penalties, cost recovery, and citizen suits. The 1991 amendment clarifies that lenders are
not liable solely because they are an owner or because they have a capacity to influence an
operation. The Hazardous Substance Injury Compensation fund §§115B.25 - .37, is available for
VK ..in compensation. The 1992 Amendment requires disclosure before transfer and a record
in the deed. The 1994 legislation removed mixed municipal solid waste landfills from the
State's superfund program if they stopped accepting waste by April 9,1994, and set up a
separate State-funded program to clean up these landfills. A separate program and fund for
cleaning up dry cleaning facilities was also established in 1995 and changes were made to
the Voluntary Investigation and Cleanup (VIQ Program in 1994 and 1995.
PROGRAM ORGANIZATION AND FUNDING
Minnesota Pollution Control Agency (MPCA), Groundwater and Solid Waste
Division has one section dealing with State and federal Superfund sites with a total of 93 FTE
staff members. The Site Response Section is primarily responsible for and handles hazardous
waste sites, the Voluntary Investigation & Cleanup Program, and the Site Assessment and
Listing Program. Legal support is provided by 5 attorneys in the Attorney General's Office
who work full-time for the State program. Funding comes from the States' cleanup fund
(75%) and from Federal grants (25%). The Hazardous Waste Division handles emergency
response and the Minnesota Department of Agriculture handles agricultural chemical sites.
CLEANUP ACTIVITIES
At non-NPL sites, Minnesota has completed 114 remedial actions since the start of the
program (58 of which were VIC sites), 22 in fiscal year 1995 (18 VIQ, and 34 remedial
actions are currently underway (six VIQ. Minnesota has completed 92 removals, seven in
FY95, and 151 are underway. The State also completed 103 emergency responses in FY95.
At NPL sites, 14 remedial actions are currently underway. Remedial actions have
been completed at 18 sites since the start of the program, three of these in FY95. Eleven
218
-------
removals are currently underway, and three were completed in FY95. Three removals have
been completed since the start of the program.
CLEANUP FUNDING
The MERLA fund balance was $2,981,000 at the end of FY95. Additions to the fund
totalled $5,692,000 in FY95 from cost recovery and penalties/fees, waste end taxes, and
interest The Fund paid out $6,714,000 m FY95, $6,639,427 of it for non-NPL site cleanup and
administration, and $74,573 for the NPL state match. In FY95, a total of $408,002 was
obligated, $372,575 of which went to non-NPL sites. The Fund may be used for remedial
actions, site investigation, studies and design, removals, emergency response, program
administration, natural resource restoration, O&M, victim compensation, grants to local
government, reimbursement to non-RPs, property acquisition if necessary to the response
action, and CERCLA match. MPCA must obtain Pollution Control Board approval
(Determination of Inadequate Response) before expending funds. MPCA must seek RP or
Fe . jral funding before using State funds. Victim compensation is available from the
Hazardous Substance Injury Compensation Fund.
Responsible parties spent an estimated $26.3M on State-supervised cleanups in FY95
and have spent $339.6 M since the program began. These figures do not include amounts
spent to clean up VIC sites and are incomplete as some RPs are unwilling to disclose the
amounts they spend.
CLEANUP POLICIES AND CRITERIA
Each site is evaluated using a risk-based approach which considers land use along
with protection of human health, environment and natural resources. The MPCA uses
ARARs. A 104 cancer risk factor, or Hazard Index of <0.2 for individual non-carcinogenic
contaminants or 1.0 for multiple contaminants, is used in the absence of applicable
standards. Other criteria applied include health risk limits (HRL) for drinking water
contaminants, State groundwater cleanup levels, groundwater non-degradation standards,
water quality criteria, MCLs/MCLGs, and EPA guidelines. The most restrictive criteria are
applied at each site.
PUBLIC PARTICIPATION
The entire process is public, with notification of RPs and approval of all State actions
at a public meeting of the Pollution Control Agency Board. As a matter of policy, a public
relations officer is assigned to each site and MPCA conducts public meetings after
completion of the RI/FS to explain the proposed plan.
ENFORCEMENT
Liability
Minnesota has strict, joint and several, and retroactive liability. The State may collect
up to $20K per day if a party fails to take sufficient response action. No punitive damages
are available. MERLA requires the State to seek RP cleanups prior to use of MERLA Fund.
219
-------
All cost recovery and penal ties/ fines are returned to the MERLA Fund. MERLA requires
RPs to conduct MPCA-requested response actions.
Natural Resource Damages
The State's Natural Resource Damages Program (Minn. Stat. Ch. 115B.04) is being
used as leverage to attain high quality response actions that generally include restoration of
natural resources. The State obtained its first settlement of a natural resource damage claim
in 1994 for $91K. There was one settlement jointly with the federal government .under
CERCLA. The MPCA and DNR are joint trustees.
Property Transfer
Under MN Stat. Ch. 115B.17, Minnesota requires disclosure when hazardous
substances are discovered and recording on the deed in certain cases.
VOLUNTARY AND BROWNFIELDS PROGRAMS"
The State's Voluntary cleanup program (Minn. Stat. Ch. 115B.17, Subd. 14; Ch.
115B.175), established in 1988 by statute and guidance, with a requirement for 100% cost
recovery, is a distinctive part of the State Superfund program. Any party willing and able to
conduct the necessary work in a timely manner and reimburse the State for oversight costs is
eligible to participate. The incentives available for participants are technical assistance (staff
review and guidance documents) and liability assurances and financial assistance
(administered by other State agencies). The State's participation is funded through MERLA
fund appropriations and Federal cooperative agreements, and a charge of approximately
$70/hour as reimbursement for services. The estimated average of costs of voluntary
cleanups is between S25K-6.5M, with the State reimbursed range falling between $2K-6K.
Approximately 700 sites have been identified or included in the program, and cleanup is
underway at a few hundred sites.
The State brownfields program is carried out under the Voluntary Investigation and
Cleanup Program (VIC).
FEDERAL/STATE PARTNERSHIP
For FY95, Minnesota has a CPCA, a SMOA, and SSCAs with U.S. EPA.
220
-------
OHIO
SITES
NPL Sites State Sites
Final: 34 Known and Suspected: 1190
Proposed: 4 Identified as Needing Attention: 406
Deleted: 0 On Inventory or Priority List 1190
STATUTORY AUTHORITIES
The Solid and Hazardous Waste Section of the Ohio Rev. Code §§3734.01 - .28 (1980,
as amended 1988 and 1995), contains provisions for two cleanup funds, enforcement
authorities and citizen suits. Ohio's Voluntary Action Program (VAP) is codified at Ohio
Rev. Code Ch. 3746 and became effective September 28,1994.
PROGRAM ORGANIZATION AND FUNDING
The Division of Emergency and Remedial Response (DERR) in the Ohio
Environmental Protection Agency (OEPA) administers the cleanup program. The program
employs 176 FTEs on non-NPL sites and receives its funding from State cleanup funds (85%)
and Federal grants (15%). The Attorney General's Office supplies five attorneys and Ohio
EPA has six attorney FTEs (three with Emergency Response, two with Voluntary Action
Program, one with supervisory duties).
CLEANUP ACTIVITIES
At non-NPL sites, Ohio has completed five remedial actions since the start of the
program and has 54 currently underway. The State has completed 250 removals since the
start of the program, 42 in fiscal year 1995, and has 51 more underway.
At NPL sites, 34 remedial actions are underway.
CLEANUP FUNDING
Ohio has two Funds available for cleanups. Fund 505 (hazardous waste) has a balance
of $13,800,866 (6/30/95). A total of $11,563,721 added in fiscal year 1995. Approximately
$7M of this was obtained from tipping fees, S3.84M from civil penalties and $723K from cost
recoveries. The Fund paid out $2,232,219 during FY95, $1,477,519 for non-NPL sites, and
obligated an additional $1,277,774. Fund 505 is used for day-to-day remedial activities and
State level-of-effort contracts for cleanups at 34 federal Superfund sites and approximately
130 State designated sites. The other fund is 503, which had a balance of $25,754,827
(6/30/95). Fund 503 is used for CERCLA10% matching funds, and non-investigatory
emergency response actions and for other hazardous waste management activities. The
DERR spent $3,754,521 and encumbered $349,801 from Fund 503.
221
-------
CLEANUP POLICIES AND CRITERIA
Ohio selects cleanup standards on a site-specific basis using risk assessments, MCLs,
water quality criteria, background, and EPA guidelines. Cumulative carcinogenic nsk must
be reduced to 104 to 10*, where 10"* is the point of departure. For non-carcinogens the State
uses a Hazard Index of 1. The State also conducts ecological risk assessments. Cleanup
criteria are also based on best available treatment technology. The State has a "How Clean is
Clean" policy which is a clean up to nsk-based levels or background. The State is developing
rules for the Voluntary Action Program, including cleanup standards.
PUBLIC PARTICIPATION
Under generally applicable Ohio statutes and rules, DERR provides public notice and
comment, and fact sheets. In addition, the current policy is to be consistent with the NCP,
and requires a public comment period, responsiveness summary, public meetings,
community relations plans, and establishment of an information reporting system.
ENFORCEMENT
Liability
Ohio enforces strict, joint and several liability. Liability is retroactive. The statute
authorizes judicial search warrants for site access, administrative orders, injunctive actions,
civil penalties, cost recovery, liens, criminal penalties in limited circumstances, and citizen
suits. Civil penalties up to $10K per day are available, but there is no provision for punitive
damages. The State is prohibited from taking action if U.S. EPA is pursuing a claim. The
State must attempt to reach a consent agreement with an owner/operator before OEPA may
do the work. Ohio does not mix State and federal claims. Ohio prefers to use CERCLA §107
for cost recovery.
Natural Resource Damages
Since 1991, the State has recovered $200K under CERCLA. There are currently two
claims pending. One natural resource restoration action is underway.
' Transfer
No law.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The Voluntary Action Program (V AP) is administered under separate statutory
authority from the State-run program. Voluntary cleanup is encouraged so DERR can focus
its enforcement efforts on non-voluntary high priority sites. Any site is eligible unless it is on
the NPL, is subject to closure under Ohio solid and hazardous waste laws, is subject to the
underground storage tank law, or is the subject of a notification that the Director will initiate
an enforcement action to clean up the property. VAP sites may be overseen by certified
professionals with no State oversight except for sites selected for audits. The State may
provide a release from liability if the State standards are met. State participation is funded
through fees from volunteers and professionals and labs seeking certification.
222
-------
The State targets brownfields through the VAP.
FEDERAL/STATE PARTNERSHIPS
For FY95, Ohio has a CPCA, a SMOA, and SSCAs with U.S. EPA.
223
-------
WISCONSIN
SITES
NPL Sites State Sites
Final: 41 Known and Suspected: 4,000
Proposed: 0 Identified as Needing Attention: 565
Deleted: 0 On Inventory or Priority List: 4,000
STATUTORY AUTHORITIES
The Environmental Repair Statue, Wis. Stat. § 144.442 (1987) creates the Environmental
Fund (EF), requires a State ranking system, and authorizes DNR to take emergency and
remedial actions, recover costs, and obtain responsible party (RP) lead cleanups.
The Abandoned Containers Statute, Wis. Stat. §144.77 (1983), authorizes the DNR to use
money appropriated for the EF to remove and dispose of abandoned containers that have
hazardous substances.
The Hazardous Substance Spill Statute, Wis. Stat. §144.76, (1978) authorizes the DNR to
use money appropriated for the EF to respond to discharges of hazardous substances; it
requires development of a contingency plan.
The Contaminated Land Recycling Statute (Act 453), Wis. Stat. §§144.765 and 144.4422
(1994), authorizes the DNR to provide innocent purchaser exemptions from liability in
specific circumstances and defines cleanup processes and cost recoveries for tax delinquent,
municipally owned properties.
PROGRAM ORGANIZATION AND FUNDING
Within the Department of Natural Resources, the Emergency and Remedial Response
(ERR) program has 50 full-time staff that deal with Federal Superfund and State response.
Legal support comes from three full-time attorneys in the DNR's Bureau of Legal Services.
Seventy percent of funding for the ERR program comes from Federal grants, 10% from the
State General Fund, and the remaining 20% from the State cleanup fund.
CLEANUP ACTIVITIES
Wisconsin has 120 remedial actions underway at non-NPL sites. The State has
completed 750 remedial actions at non-NPL sites since the start of the program, up
considerably from the reported 80-100 completed actions in FY93. The increased rate of
completions can be attributed to the inclusion of sites with responsible party leads
(approximately 90% of newly included sites) and cleanups paid for by the State funded
environmental repair program (10% of sites). Thirty remedial actions were completed during
fiscal year 1995. Ten removals are currently underway at non-NPL sites. Four hundred-fifty
removals have been completed since the start of the program, 12 in FY95.
224
-------
Remedial actions are underway at six NPL sites. Eleven remedial actions have been
completed at NPL sites since the start of the program, and six were completed in FY95.
Removals are underway at four NPL sites. Since the start of the program, 25 removals have
been completed, with three completed during FY95.
CLEANUP FUNDING
The Environmental Fund (EF) had a balance of $3,472,000 at the end of FY95. The EF
added $2,449,500 during FY95 from appropriations, bonds, fees, cost recoveries, interest,
penalties, private funds, transfers, and taxes. EF may be used for emergency response, site
investigation, removals, O&M, CERCLA match, studies and designs, remedial action, natural
resource restoration program administration, and to a limited extent, for grants to local
governments. Remedial action may be subject to prior administrative hearing and judicial
review. EF paid out $5,425,000 in FY95. Non-NPL sites received $4.35M and NPL sites
$1,075,000 of the monies paid out. Additionally, $9,925,000 was obligated in FY95, $8.85M
for non-NPL sites and $1,075,000 for NPL sites.
In addition, approximately $11M in bond authority remains from an original
authorization of $22.4M in bonding which may be used for CERCLA match and for cleanup
actions taken under the authority of the Environmental Repair Statute, which in practical
application is only for landfill-type cleanups.
CLEANUP POLICIES AND CRITERIA
Wisconsin has promulgated groundwater, soil, and hazardous substance cleanup
standards and uses water quality criteria, MCLs/MCLGs and background levels in
determining cleanup levels.
PUBLIC PARTICIPATION
The State list is subject to public notice, a 30-day comment period and hearing
requirements. Remedial actions are subject to public notice, and a public hearing if requested
within 30 days. All files are open to the public with limited confidentiality and enforcement
exceptions.
ENFORCEMENT
Liability
Under the Abandoned Container and Spill Laws liability is strict, joint and several,
and proportional, but under the Environmental Repair Statute the standard is explicitly not
strict (it is joint and several). The burden of proof is on the State. Civil penalties of up to $5K
per day are available, but there are no punitive damages. Criminal penalties are available if
the case is flagrant.
225
-------
Natural Resource Damages
The State has authority under Wis. Stat. §147.23 to address natural resource damages.
Property Transfer
No mandatory property transfer provision. The State is developing a database of
known or listed sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State Contaminated Land Recycling Act (Wis. Stat. §§ 144.76 (13) and 144.765)
allows an innocent property owner or purchaser to investigate and clean up the property in
order for the buyer to become exempt from future liability associated with the past
contamination. The DNR is developing a proposal to require disclosure on the deed or with
the recorder of deeds that the site was or is contaminated with hazardous substances.
In 1994, the State established a voluntary cleanup program (Wis. Stat § 144.765) in
conjunction with the State cleanup program. Qualified purchasers are eligible to participate,
in return for limited liability. The municipal grant element of this program is currently
unfunded, but the State is proposing to collect fees.
FEDERAL/STATE PARTNERSHIPS
For FY95, Wisconsin has a CPCA, a SMOA, and SSCAs with U.S. EPA.
226
-------
R
EGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
227
-------
ARKANSAS
SITES
NFL Sites State Sites
Final: 12 Known and Suspected: 398
Proposed: 0 Identified as Needing Attention: 45
Deleted: 1 On Inventory or Priority List: 12
STATUTORY AUTHORITIES
The Remedial Action Trust Fund Act (RATFA), Ark. Code Ann. §§8-7-501 et seq. (1985,
as amended 1987), establishes the Hazardous Substance Remedial Action Trust (HSRAT)
Fund, which replaced the Hazardous Substance Response Trust Fund (enacted in 1983).
RATFA also establishes a State pnority list of hazardous waste sites.
The Emergency Response Fund Act (ERFA), Ark. Code Ann. §§8-7-401 et seq. (1985),
establishes the Emergency Response Fund (ERF). Both RATFA and ERFA provide for
proportional Liability, civil and criminal penalties, treble damages, cost recovery, and
superlien authority.
The Hazardous Waste Management Act (HWMA), Ark. Code Ann. §8-7-201 (1979),
provides authority for enforcement, a priority list, and public notice.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Branch of the Hazardous Waste Division is located in the Department
of Pollution Control and Ecology. The Branch is staffed by ten employees. Three to four
attorneys from the Department's Legal Division work part time on a site-by-site basis. The
program receives funding primarily from Federal Grants (90%) and from the State Cleanup
Fund (10%).
CLEANUP ACTIVITIES
At NPL sites, Arkansas has no remedial actions underway. During FY95, four
remedial actions were completed and six have been completed since the start of the program.
At non-NPL sites there are currently two remedial actions underway. There were no
remedial actions in the past fiscal year.
At NPL sites, there are no removals underway, and none were completed in the past
fiscal year. Five NPL removals have been completed since the start of the program. At non-
NPL sites, there are currently three removals underway. One removal was completed in
FY95 and 31 have been completed since the start of the program.
CLEANUP FUNDING
The Hazardous Substance Remedial Action Trust Fund (HSRAT), with a balance of
$7,311,447 as of 6/30/95, is derived primarily from annual fees on hazardous waste
228
-------
generators within Arkansas or those accepting waste generated outside the State for
transport/storage/disposal. The HSRAT Fund also receives significant revenues from
penalties, and smaller amounts of funding through appropriations, cost recoveries, and
interest. During FY95 $1,650,542 was added to the HSRAT Fund, and $870,683 was paid out:
$186,880 for NPL sites and $623,803 for non-NPL sites; no further obligations have been
made. The HSRAT Fund can be used for site investigations, studies and design, emergency
responses, removals, and remedial actions at State-listed sites, and for CERCLA match, but it
cannot duplicate CERCLA. Funded sites must be on the State Prionty List. Ten percent of the
HSRAT revenues are deposited into the Environmental Education Fund. The HSRAT Fund
can also be used for program administration.
The Emergency Response Fund (ERF) had a balance of $138,603 as of 6/30/95, with
additions of $259,915 during FY95. The ERF can be used only for emergency responses,
removals, and site investigations. It is funded by civil penalties. From the ERF, $269,605 was
paid for non-NPL sites during FY95. The ERF has a ceiling of $150K which may be on
deposit at any one time; any additional funds are then deposited into the HSRAT Fund.
CLEANUP POLICIES AND CRITERIA
Cleanup standards are selected on a site-by-site basis and Federal guidelines are
followed. Sites may be listed if they pose a potential substantial danger to human health or
the environment. Waste cleanup standards in DPC&E Regulation No. 23, plus State air and
water quality regulations, soil and ground water levels, MCLs/MCGLs, risk assessments,
EPA guidelines and background levels are all used by Arkansas as standards for hazardous
waste cleanups.
PUBLIC PARTICIPATION
Public notice requirements, provisions for public comment, hearings and meetings
and document availability are all provided by both statute and regulation. As a matter of
policy, there is also precoordination 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.
ENFORCEMENT
Liability
Both RAFTA and ERFA provide for strict, joint and several liability unless
proportional liability is proved by a preponderance of the evidence. RATFA provides State
authority to issue administrative orders for information, site access, and remediation.
Although injunctive action is not expressly provided for, Arkansas may proceed under its
RCRA-type law. RATFA authorizes civil penalties of up to $25K per day and criminal
229
-------
penalties for violating the Act, making false statements, or violating an order. RATFA also
provides for treble punitive damages, cost recovery, and superliens. ERFA also provides for
administrative orders, treble damages, civil and criminal penalties, cost recovery and
superliens. Action by the legislature in the 1990 legislative session impedes use of the
superlien provisions which, however, were not repealed.
Natural Resource Damages
Arkansas has authority independent of federal law to recover for NRDs'(Ark. Code
Ann. §8-4-103(b)(3)). Arkansas' NRD program started in November, 1993, by the signing of a
memorandum of understanding with the U.S. Dept. of Interior. There are no NRD claims
currently pending.
Property Transfer
No provision.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State does have a brownfields program as established by Ark. CodeAnn. §8-7-
523. Sites covered by this program are those "abandoned sites" as defined by statute. There
are currently no sites in the program. A voluntary cleanup policy is currently in draft.
FEDERAL/STATE PARTNERSHIPS
For FY95, Arkansas has a CPCA and SSCAs with U.S. EPA, and is negotiating a
SMOA.
230
-------
LOUISIANA
SITES
NFL Sites State Sites
Final: 14 Known and Suspected: 690
Proposed: 5 Identified as Needing Attention: 136
Deleted: 0 On Inventory: 690
STATUTORY AUTHORITIES
The Hazardous Waste Control Law (La. Rev. Stat. Ann. Title 30, §§2171-2206), the
Inactive and Abandoned Hazardous Waste Site Law (La. Rev. Stat. Ann. §§2221-2226, as amended
June 1995), and Chapter 12 entitled Liability for Hazardous Substance Remedial Action (La. Rev.
Stat. Ann. §§2271-2280), together establish several funds and provide strict, joint and several
liability, information-gathering, administrative order authority, injunctive relief, cost
recovery, liens, citizen suits, restrictions on property transfers, and treble damages. Site
access, restrictions on property transfers, and civil and criminal penalties are provided by
the Environmental Quality Law's general enforcement provisions (La. Rev. Stat. Title 30).
PROGRAM ORGANIZATION AND FUNDING
The Inactive and Abandoned Sites Division in the Department of Environmental
Quality's (DEQ/s) Office of Legal Affairs and Enforcement is the lead agency with a total of
34 FTE employees. One DEQ lawyer provides enforcement support The program receives
funding from both Federal grants (50%) and the State cleanup fund (50%).
CLEANUP ACTIVITIES
At NPL sites, Louisiana has eight remedial actions (RAs) underway with no RA's
completed during the last fiscal year. One RA at an NPL site has been completed since the
start of the program. At non-NPL sites, seven RAs are currently underway. During the last
fiscal year, 25 RAs at non-NPL sites have been completed. Since the start of the State
program, 97 RAs have been completed at non-NPL sites.
At NPL sites, Louisiana has no removals currently underway. Two removals have
been completed during the past fiscal year, and nine have been completed since the start of
the program. Four removals are currently underway at non-NPL sites. Four have been
completed during the past fiscal year, and 36 have been completed since the start of the
program.
Since the start of Louisiana's program a total of 105 remedial actions and removals
have been paid for by PRPs and 11 by the State.
231
-------
CLEANUP FUNDING
The primary cleanup hind is the Hazardous Waste Site Clean-up Fund (HWSCF)- The
HWSCFs balance was $2,007,883 at the end of FY95. A total of $439,733 was paid out by the
State: $331,583 for NPL sites and $108,150 for non-NPL sites. A total of $1,992,117 was
obligated: $331,583 to NPL sites, and $1,660,534 to non-NPL sites. HWSCF has a cap of $4M.
A portion of the taxes on hazardous waste generation, as well as sums recovered through
judgments and settlements, are the sources of the HWSCF. The HWSCF can be used for
emergency responses, removals and remedial actions, studies and design, and O&M. DEQ
has the authority to seek recovery of State costs from PRPs once the work is done. For
CERCLA NPL sites, the State uses capital outlay.
CLEANUP POLICIES AND CRITERIA
DEQ is required to select remedies, based on cost effectiveness, that reduce exposure
or potential exposure so as not to pose any significant threat to public health or the
environment. On a site-specific basis, DEQ selects cleanup levels using water quality criteria,
MCLs/MCLGs, background levels, risk assessments and EPA procedures and guidance and
aims for permanent remedies. Risk levels range from 10"* to 10^.
PUBLIC PARTICIPATION
La. Rev. Stat §2280 provides an opportunity for a public meeting and, if requested, a
public comment period prior to approval of an RI plan and selection of a remedy. A public
comment period is required for closure plans when DEQ proposes to treat, store, or dispose
of hazardous wastes at abandoned sites. 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.
ENFORCEMENT
Liability
The State has administrative order and injunctive authority, costs recovery, liens,
treble damages, and has strict, joint and several liability. Parties may prove proportionality,
however. Civil penalties of $25K/day can be recovered for each day that a PRP does not
provide requested information. Double damages can be recovered by participating PRPs
from non-participants, and the State can recover treble damages from non-participants if the
State cleans up. Louisiana will negotiate a settlement with PRPs or issue a remedial demand
order wherever possible.
Natural Resource Damages
Louisiana does not have a natural resource damages program.
232
-------
Property Transfer
Louisiana can impose a superlien for the recovery of remedial costs incurred by the
State and has a statutory requirement that the landowner of an idenhfied hazardous waste
site record the location of the waste site in the mortgage and conveyance records of the
parish in which it is located. The State maintains a database to track assessment and
remediation of sites.
VOLUNTARY AND BROWNF1ELDS PROGRAMS
As of yet, Louisiana does not have a Voluntary Cleanup Program. A voluntary
cleanup bill (HB 1183) was enacted in July 1995 and becomes effective as soon as the DEQ
adopts minimum requirement standards for soil, groundwater and surface water quality
necessary for the remediation of contaminated property. Any future owner or potential
purchaser is eligible to participate.
The State does not have a brownfields program. New Orleans has been given a
federal grant of $200K by the EPA to establish a brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Louisiana has a CPCA, a SMOA, and SSCAs with U.S. EPA.
233
-------
NEW MEXICO
SITES
NTL Sites State Sites
Final: 10 Known and Suspected: 278
Proposed: 1 Identified as Needing Attention: 182
Deleted: 1 On Inventory or Priority List: 56
STATUTORY AUTHORITIES
The Hazardous 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.
PROGRAM ORGANIZATION AND FUNDING
Within the Environment Department (NMED), the Superfund Oversight Section of
the Groundwater Quality Bureau has 17 FTE staff members. The NMED General Counsel's
office provides legal support with .5 attorneys. New Mexico's program is primarily funded
by Federal Grants (64%), a State General Fund (28%), and by private parties (8%).
CLEANUP ACTIVITIES
At NPL sites, seven remedial actions are currently underway. There were no new
remedial actions initiated at NPL sites in the past fiscal year, and there has been one
remedial action completed since the start of the program. At non-NPL sites, there are
currently 37 remedial actions underway. Four non-NPL remedial actions were completed in
the past fiscal year; 13 have been completed since the start of the program.
There are currently three removals underway at NPL sites. One NPL removal was
completed in the past fiscal year and two have been completed since the start of the
program. At non-NPL sites, three removals are underway. Since the start of the program,
two removals have been completed. Over twenty non-NPL removals have been completed
since the start of the program.
CLEANUP FUNDING
The Hazardous Waste Emergency Fund (Emergency Fund) is funded by penalties.
The Emergency Fund had a balance of $1,204,500 at the end of FY95. A total of $43,020 was
paid out in FY95, all to non-NPL sites. A total of $43,020 was obligated or encumbered, all to
non-NPL sites. The Emergency Fund can be used for emergency responses.
The State Groundwater Remediation Fund (SRF) is funded entirely by appropriations.
The SRF had no balance at the end of FY95. Additions amounting to $218,400 were made to
234
-------
the fund during FY95, all of which was paid out for non-NPL cleanups. $218,400 was
obligated and encumbered for non-NPL activities. The SRF can be used for program
administration, site investigation, studies and design, removals, remedial actions and
operation and maintenance.
CLEANUP POLICIES AND CRITERIA
The State uses background levels, EPA guidelines, risk assessments, State surface
water and groundwater standards, water quality criteria, MCLs/ MCLGs and soil .
remediation guidelines to establish cleanup levels. The State uses an additional lifetime
cancer risk level of 10* in its risk assessments. Standards are human health-based and are set
through a public hearing process.
PUBLIC PARTICIPATION
The State follows CERCLA/NCP procedures at NPL sites. At non-NPL sites, it
follows the regulations of the Water Quality Control Commission. Public notice
requirements, public comment provisions, and hearings and meetings are established by
regulation. Document availability is established by statute (Water Quality Act).
ENFORCEMENT
Liability
Enforcement authorities include orders for site access and information,
administrative and consent order authority, injunctive actions, civil penalties and cost
recovery authority. Civil penalties of $10K per day for water quality regulation violations,
up to $15K per day for discharge permit violations, and up to $25K for compliance order
violations are available. Figures for punitive damages are not available. Liability standards
are strict, joint and several. The preferred enforcement method is sending a notice of
violations with a time period for compliance and a proposed penalty or seeking an
injunction.
Natural Resource Damages
Although lacking statutory authority, New Mexico's NRD program began in July 1993
and has two CERCLA claims currently pending for $200K. There is currently one restoration
action under way and $165K has been spent on restoration actions.
Property Transfer
New Mexico has no law governing transfers of hazardous waste sites, but it does
maintain a database of priority sites which was made available to the public beginning in
January 1994.
235
-------
VOLUNTARY AND BROWNF1ELDS PROGRAMS
No voluntary cleanup program exists in New Mexico. Any responsible party,
however, can enter into an agreement of cooperation with the State with the incentive of
potential deferral from the NPL. The State is seeking to develop a structured voluntary
cleanup program which would also address brownfields.
FEDERAL/STATE PARTNERSHIPS
For FY95, New Mexico has a CPCA, a SMOA, and SSCAs with U.S. EPA. •
236
-------
OKLAHOMA
SITES
NPL Sites State Sites
Final: 10 Known and Suspected: 767
Proposed: 0 Identified as Needing Attention: 162
Deleted: 0 On Inventory or Priority List:
STATUTORY AUTHORITIES
The Environmental Quality Act, Ok. Stat Ann. Tit. 27A, §1-3-101 B.9, B.16 (1993), gives
ODEQ jurisdiction over Superfund responsibilities under CERCLA. The Environmental
Quality Code, Ok. Stat. Ann. Tit. 27A: §§2-1-1-1 et seq. includes: Oklahoma Hazardous Waste
Management Act, §§2-7-101 et seq.; the Hazardous Waste Fund Act, §§2-7-301 et seq.; the
Oklahoma Solid Waste Management Act, §2-10-101 et seq; §2-3-506/75: OS 1991 §309(d) which
authorizes consent agreements and final orders; and §2-6-105 which declares that pollution
of the State air, land or waters is a public nuisance. 50 OS 1991 §2-1 also defines public
nuisance and liability of property owners, which allows the State to pursue successive
owners.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Quality's Waste Management Division has a full
time staff of 16 employees. Legal support is provided by one attorney from the Office of the
Executive Director, the Office of General Counsel. Sources of funding for program
administration are the State general fund (15%), State cleanup funds (5%), and Federal grants
(80%).
CLEANUP ACTIVITIES
Remedial actions are currently underway at four NPL sites and one non-NPL site. In
the past fiscal year, remedial actions have been completed at one NPL site and at no non-
NPL sites. Since the start of the program, remedial actions have been completed at two NPL
sites and one non-NPL site.
Removals are currently underway at one NPL site. There are no removals currently
underway at non-NPL sites. In the past fiscal year, there were no removals at NPL sites and
four removals at non-NPL sites. Thirteen removals at NPL sites and 23 removals at non-NPL
sites have been completed since the start of the State's program.
CLEANUP FUNDING
The Hazardous Waste Fund, with a balance of $1,096,005 as of 6/30/95, is available
for removals, emergency response, and CERCLA match. Its sources are penalties and fees.
Additions to the fund during FY95 totaled $43,428. During FY95, $348,115 was expended
237
-------
from the hind: $240,014 for NPL activities and $108,101 for non-NPL activities. Monies
obligated and encumbered amounted to $348,115, with $240,014 for NPL sites and $108,101
for non-NPL sites.
The Environmental Trust Fund, a revolving fund, was established 7/1/93. As of
6/30/95, the fund had a balance of $1M. Additions to the fund for FY95 amounted to $1M.
Its primary source is a tax on motor and diesel fuels and blending materials, and it is
authorized for use for CERCLA match. There have been no expenditures or obligations from
the fund.
Responsible parties spent approximately $228K on State-supervised non-NPL
cleanups in FY95.
CLEANUP POLICIES AND CRITERIA
A risk-based computer model is used to determine soil cleanup levels for the
protection of groundwater, surface water, and human health through direct contact and
ingestion. Water quality, MCLs/MCLGs, background levels, risk standard, EPA guidance,
groundwater, and soil cleanup levels are used. In general, the State uses a 10"* risk level for
cancer, but will sometimes use a range from 104 to 10"*. Oklahoma's Cumulative Hazard
Index is 1.
PUBLIC PARTICIPATION
Public notice requirements, provisions for public comment, hearings and meetings,
and document availability are all established by the National Contingency Plan (NCP).
Groups are encouraged to apply for EPA TAG grants.
ENFORCEMENT
Liability
Oklahoma can impose joint and several liability and statutory liability under State
nuisance laws. Civil penalties amounting to $10K/day are available under nuisance laws.
Natural Resource Damages
Oklahoma's natural resource damages program is under development.
Property Transfer
Oklahoma has no property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Oklahoma does have a voluntary cleanup program, established by OK Stat. Ann. Tit.
27A §2-3-506 and 75 OS 1991, §309(d), which relies on consent agreements and final orders
for implementation. All property owners and PRPs of contaminated sites are eligible to
238
-------
participate. Participation can potentially defer or preclude NPL status. State fees depend on
oversight costs and are determined on a case-by-case basis.
The State's brownfields program is currently under development. Some voluntary
cleanup sites are under pursuit for redevelopment, but the State has not actively targeted
these sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Oklahoma has a CPCA, a SMOA, and SSCAs with U.S. EPA.
239
-------
TEXAS
SITES
NFL Sites State Sites
Final: 27 Known and Suspected: 821
Proposed: 0 Identified as Needing Attention: 66
Deleted: 4 On Inventory or Priority List: 51
STATUTORY AUTHORITIES
The Hazardous Substances Spill Prevention and Control Act, Tex. Water Code §26.261 (as
amended 1991), establishes the Spill Response Fund.
The Solid Waste Disposal Act, Tex. Health and Safety Code Ann. Art. §4477-7 (as
amended 1991,1993 and 1995), establishes the Hazardous Waste Disposal Fee Fund (Fund
550) and a priority list. The 1991 amendment changed the fee structure, placing fees on
products containing hazardous materials. The 1993 amendment added a treble damages
provision. The 1995 amendment establishes the State's voluntary cleanup program (Texas
Health and Safety Code Ch. 361.601-612).
The Texas Health and Safety Code §361.184, §361.187, and §361.189 includes public
participation provisions. The Texas Property Code, Ch. 5 includes property transfer
provisions.
PROGRAM ORGANIZATION AND FUNDING
The Pollution Cleanup Division of the Texas Natural Resource Conservation
Commission (TNRCQ has 102 full-time employees. Legal support is provided by 2.5
attorneys in the TNRCC Legal Services Division. Funding for program administration is
from State cleanup funds (80%) and from Federal grants (20%).
CLEANUP ACTIVITIES
At NPL sites, there are ten remedial actions underway. One remedial action was
completed in FY95, and 13 have been completed since the start of the program. There have
been no removals at NPL sites. At non-NPL sites, there are currently ten removals
underway. In FY95, 3405 removals were completed at non-NPL sites; 16,633 removals have
been completed since the start of the program. There are no remedial actions at non-NPL
sites.
CLEANUP FUNDING
The Hazardous and Solid Waste Remediation Fee Fund (Fund 550) had a balance of
$47,069,124 at the end of FY95 (9/1/94 - 8/31/95). Additions to the fund during FY95
totalled $26,571,123 with a total of $28,615,006 paid out The fund is available for site
investigation, studies and design, removals, emergency response, remedial actions, natural
240
-------
resource assessment, CERCLA match, operations and maintenance, and program
administration. Its major source of funding is fees on hazardous waste disposal and on
products including batteries and motor oil. Minor (<20%) sources of funding include cost
recoveries and interest
The Spill Response Fund had a balance of $292K as of 8/31/95. There were no
additions to the fund during FY95. It is available for removals and emergency response. Its
major source is appropriations. There were no expenditures or obligations from the fund
during FY93.
CLEANUP POLICIES AND CRITERIA
Under Risk Reduction Standard 2 (TWC Rules, Ch. 335), TNRCC has promulgated
preliminary remediation goals for over 150 chemical constituents which are to serve as
starting points to determine cleanup levels and may require modification where exposure
pathways that were not evaluated during development of the goals are of concern. Goals are
determined through use of conservative, default exposure assumptions and standardized
equations. Values are determined for each chemical by setting cumulative risk for mgestion,
inhalation of volatiles, and inhalation of particulates at 10"*. Soil values to protect
groundwater are set at 100 times groundwater cleanup levels. Risk Reduction Standard 3
cleanup levels for air, surface and groundwater, and soil are determined through a site-
specific process, use 10"* as a goal, and require concentration to be consistent with risk
between 10"* and 104. The State may also apply water quality criteria, MCLs, background
levels, and EPA guidelines.
PUBLIC PARTICIPATION
Texas Health and Safety Code requires public notice and comment on site listing and
remedy selection. TNRCC also meets informally with the community as interest warrants.
ENFORCEMENT
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.
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.
Natural Resource Damages
The Texas Natural Resource Trustee program is established by TNRCC: SOT AC
327.31, TGLO: 31TAC 20.1-20.4,20.10, Texas Natural Resources Code 40.107(c) (4) Texas Oil
Spill Prevention and Response Act, and deals exclusively with oil spills. There have been
four NRD claims settled, two under CERCLA and three under the Oil Pollution Act There
are nine NRD claims pending administratively: five under the Oil Pollution Act and four
241
-------
under CERCLA. The total amount of pending claims is currently not available. One
restoration is currently underway. Three have been completed and two more are expected to
be completed by September 19%.
Property Transfer
The Texas Property Code Chapter 5 requires that sellers of up to four units of
residential property disclose certain information to purchasers, including the presence on the
site of radon, lead-based paint, or seismic faults, the location of the site in a 100-year
floodplain, or the existence at the site of any condition which could materially affect the
physical health or safety of an individual.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Texas does have a voluntary cleanup program, established in September 1995 by
statute (HB2296). All sites not subject to a permit or order are eligible to participate. Any
person may apply to enter the program. No enforcement action may be initiated against the
participant once in the program. Participants also receive quicker review and approval of
low priority sites and there is also liability protection for lenders and future landowners. The
State's participation is funded by State and federal funds and applicant fees. The State
charges a service fee of $1K (and $60.80 per hr. after expenditure of the fee).
The State does not have a brownfields program. Brownfields are being targeted
through the voluntary cleanup program. Sites not covered by an existing enforcement order
are eligible. Ninety sites have entered the voluntary cleanup program. Most of these sites
were abandoned and will be redeveloped upon certificate of completion issuance. Cleanup is
underway at approximately 40 of these sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Texas has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
242
-------
R
EGION VII
Iowa
Kansas
Missouri
Nebraska
243
-------
IOWA
SITES
NPL Sites State Sites
Final: 18 Known and Suspected: 900
Proposed: 1 Identified as Needing Attention: 200
Deleted: 2 On Inventory or Priority List: 67
STATUTORY AUTHORITIES
The Environmental Quality Act (EQA), Iowa Code Ch. 381-397 and 455B 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 a
priority List, allows for citizen suits and victim compensation, 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
establishes the Hazardous Waste Remedial Fund.
The Croundwater Protection Act, Iowa Code Ch. 455E (1987), establishes procedures
and criteria for cleanup.
The Groundwater Hazard Documentation Law, Iowa Code Ch. 558.69 (1987, as amended
1988), establishes disclosure requirements for real property transfers.
PROGRAM ORGANIZATION AND FUNDING
The Solid Waste Section of the Iowa Department of Natural Resources is responsible
for program administration. There are currently 10.5 full time employees. Legal support is
provided by DNR Compliance and Enforcement Bureau. 0.3 FTE attorneys from DNR
Compliance and Enforcement Bureau work on the program. Eighty percent of funds for staff
and administration are from Federal grants, 5% are from the State cleanup fund, and 15% are
from a solid waste account
CLEANUP ACTIVITIES
At NPL sites there are currently 14 remedial actions underway. Four remedial actions
were completed in the past fiscal year at NPL sites and six have been completed since the
start of the program. There are approximately ten removals underway at NPL sites. Two
were completed in FY95.
At non-NPL sites, approximately 25 remedial actions are underway. There were no
remedial actions completed at non-NPL sites in FY95.
CLEANUP FUNDING
The Hazardous Waste Remedial (HWR) Fund had a balance of S1.3M as of the end of
FY95. Approximately $300K was added to the fund in FY95 primarily from fees on the
244
-------
transportation, treatment and disposal of hazardous waste. Approximately $15K was paid
out during FY95: $1K was spent on NPL activities and $24K were spent on non-NPL
activities. $25K was obligated and encumbered during FY95: $5K to NPL activities and S20K
to non-NPL activities.
The HWR Fund can be used for administration, site investigation, emergency
response, removals, remedial actions, O&M, CERCLA match, studies and design, and grants
to local government 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 pursuant to State regulations,
which provide cleanup goals for groundwater, soils, and surface water. State hazardous
waste standards are Groundwater Action Levels based on lifetime health advisories,
negligible risk levels, and MCLs. Risk assessment is used to determine applicable cleanup
levels if groundwater contamination exceeds Action Levels.
PUBLIC PARTICIPATION
State policy provides for public notice, provisions for public comment, and hearings
and meetings. Document availability requirements are established by statute.
ENFORCEMENT
Liability
Liability is strict and the EQA preserves any legal or equitable rights, remedies or
defenses. The State 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
Iowa does have authority independent of federal law to recover for natural resource
damages (Iowa Code 455B. 392c.). 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 NRD program exists within the agency. The Environmental
Protection Agency is currently working on natural resource damages at one site.
Property Transfer
The Groundwater Hazard Documentation Law requires that a property owner must
disclose on the deed or with the recorder of deeds that the site was or is being used for the
245
-------
disposal of hazardous substances, and a seller must disclose the presence of hazardous
substances on a site before property transfer.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Iowa does not have voluntary cleanup or brownfields programs. The U.S. EPA has
offered seed money to Iowa for a brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Iowa has a CPCA and SSCAs with the U.S. EPA, and is negotiating a
SMOA.
246
-------
KANSAS
SITES
NPL Sites State Sites
Final: 11 Known and Suspected: 609
Proposed: 2 Identified as Needing Attention: 324
Deleted: 13 On Inventory or Priority List: 494
STATUTORY AUTHORITIES
The Environmental Response Act (ERA), K.S. A. §65-3453 et seq. (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 et seq., 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.
PROGRAM ORGANIZATION AND FUNDING
The Kansas Department of Health and Environment's (DHE's) Bureau of >
Environmental Remediation (BER) is responsible for Federal and State Superfund cleanups,
LUST, emergency response, above ground storage tanks, mine land reclamation, and landfill
remediation. The BER has a staff of 103 FTEs and special project officers, with 26 FTEs
working specifically on remediation. Legal support is provided by the Office of Legal
Services of the DHE; three FTC attorneys work on the program. Funding for staff and
program administration comes from a variety of sources including the State General Fund,
Federal Grants, the Environmental Response Fund, State Water Plan, Underground Storage
Tank Funds, the Dry Cleaning Trust Fund and the Above Ground Storage Tank Fund.
Landfill and mining fees and aboveground tank registrations are also a source of revenue.
CLEANUP ACTIVITIES
Currently, remedial actions are underway at eight NPL sites and approximately 285
non-NPL sites. In the last fiscal year, three remedial actions were completed at NPL sites and
13 were completed at non-NPL sites. Four remedial actions at NPL sites and 91 at non-NPL
sites have been completed since the start of the State program.
Five removals at non-NPL sites are underway. There are no removals currently
underway at NPL sites. In the last fiscal year, approximately three removals were completed
247
-------
at NPL sites and two were completed at non-NPL sites. Since the start of Kansas' program,
approximately 15 removals have been completed at NPL sites and ten have been completed
at non-NPL sites.
A total of 12 remedial actions and removals have been paid for by the State since the
start of the program. Approximately 89 have been paid for by responsible parties.
CLEANUP FUNDING
The State Environmental Response Fund had a balance of $225K at the end of FY95
with additions of $596K being made to the fund during the fiscal year. A total of S467K was
paid out of the fund all to activities at non-NPL sites. $154K was obligated or encumbered to
activities at non-NPL sites. The fund can be used for site investigation, studies and design,
removals, emergency response, remedial actions, program administration and oversight of
responsible party remedial activities. 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 At the end of FY95, it had no balance. A total of $1.5M was added to the fund
during FY95, with $1.4M being paid out to activities at non-NPL sites. A total of $1.25M was
obligated or encumbered to activities at non-NPL sites. Fees comprise the major source of
revenue for the State Water Plan, which can be used for site investigation, studies and
design, removals, emergency response, remedial actions, CERCLA match, operations and
maintenance, and program administration.
The State General Fund had no balance at the end of FY95. $497K of additions were
made to the account during the fiscal year. Expenditures amounting to $493K were made to
non-NPL sites. A total of $16K was obligated or encumbered to non-NPL activities.
Appropriations constitute the significant source of funds for the State General Fund, which
can be used for site investigation, emergency response, CERCLA match, and program
administration.
The Drycleaning Trust Fund was established in July of 1995 and currently has no
balance. The fund can be used for studies and design, site investigation, removals,
emergency response, remedial actions, and program administration. Funds derive primarily
from fees.
CLEANUP POLICIES AND CRITERIA
BER uses groundwater cleanup target concentrations which the Bureau of Water has
established. The State uses relevant State guidance (Kansas Action Levels), water quality
criteria, MCLs/MCLGs, and background levels. Risk levels ranging from 104 to 1CT3 are used.
248
-------
PUBLIC PARTICIPATION
The State generally follows the National Contingency Plan public participation
procedures, which require public meetings when contamination migrates beyond property
boundaries. Meetings for on-site contamination are optional. The State is developing a
contingency plan which will include guidelines on community participation.
ENFORCEMENT
Liability
The ERA authorizes strict liability and issuance of orders and injunctions against RPs
to effect site cleanups. Civil penalties for violation of an ERA order are not available.
Penalties are available under hazardous waste, nuisance, or water laws, and the State can
use these authorities for enforcement (including cleanup of ground water and soil). These
penalties include $10K to $25K for hazardous waste, $10K for water pollution, and $5K for
solid waste violations. Kansas can impose liability under State law for the cleanup of
substances disposed of before the State program was enacted.
Natural Resource Damages
Kansas has authority independent of federal law to recover for natural resource
damages under K.S. A. 65-171-U. The State commenced seeking NRDs in the mid 1980s.
Approximately 15 NRDs have been recovered at a total of S150K. Four claims are currently
pending for a total amount less than $10K. There are currently no natural resource
restorations underway. Approximately 15 restorations have been completed.
Property Transfer
No property transfer provisions have been established.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Kansas has neither a voluntary cleanup nor a brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Kansas has a CPCA and SSCAs with the U.S. EPA, and is negotiating a
SMOA.
249
-------
MISSOURI
SITES
NPL Sites State Sites
Final: 22 Known and Suspected: 1475
Proposed: 0 Identified as Needing Attention: 200
Delisted: 1 On Inventory or Priority List: 52
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 a priority list, strict liability, site access,
administrative order authority, penalties, and punitive damages. The Voluntary Cleanup
Law (passed in 1993 as S.B. 80), Mo. Rev. Stat. §§260.565-575, provides authority for
establishing a Voluntary Cleanup Program.
PROGRAM ORGANIZATION AND FUNDING
The cleanup program in Missouri is administered by the Department of Natural
Resources, Division of Environmental Quality, Hazardous Waste Program with 48 FTE staff
members: 19 in the Superfund Section; three in budget and planning; ten in Environmental
Services, 12 in federal facilities, and four in voluntary cleanup. 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 one FTE. Funding for staff and
administration comes 80% from federal grants and 20% from the State's cleanup fund.
CLEANUP ACTIVITIES
There are 12 remedial actions underway at non-NPL sites. Twenty-one remedial
actions have been completed at non-NPL sites since the start of the program, including four
during the last fiscal year. Approximately 30 removals are underway at non-NPL sites.
Seventy-nine removals have been completed at non-NPL sites since the start of the program,
including three during the last fiscal year.
Eight remedial actions and seven removals are underway at NPL sites. Since the start
of the program, ten remedial actions and 18 removal actions have been completed at NPL
sites.
CLEANUP FUNDING
The Hazardous Waste Remedial Fund has a balance of $5.3M (6/30/95). Funds are
primarily provided by taxes on hazardous waste generators based on tonnage and the
method of handling waste. There is a $1.5M per year cap on this tax. Fees on landfilled waste
also contribute to the Fund. Cost recovery, penalties and fines, interest, and appropriations
250
-------
are all potential contributors. During the last fiscal year, fund revenues were $2.7M and
expenditures were S2.8M. The Fund may be used for site investigation, emergency response,
removals, studies and design, remedial actions, CERCLA match, operations and
maintenance, program administration, health studies, acquisition of property, and study of
development of a hazardous waste facility in the State.
CLEANUP POLICIES AND CRITERIA
The Department sets cleanup levels on a site-by-site basis. State water quality criteria,
MCLs/MCLGs, risk assessment, groundwater standards, soil standards, and EPA guidelines
may be used to set criteria. The State Health Department provides site-specific "any-use soil
level" recommendations. Risk levels are usually set at 1CT5.
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.
ENFORCEMENT
Liability
Strict and retroactive liability applies. Treble damages are available to the State. The
State seeks RP cleanup first Violations of property transfer or change of use laws may be
subject to a penalty of $1K per day.
Natural Resource Damages
Missouri does not have a natural resource damages program. Natural resource
damages can be pursued under water pollution and other laws.
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 BROWNFIELDS PROGRAMS
The Voluntary Cleanup Program, established by statute in 1993 and effective in 1994,
is administered by a separate unit Participation is open to any site except those with
251
-------
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 Department issues a "Clean Letter" upon completion of a voluntary
cleanup. Participants pay the State's actual costs and overhead (actual x 2.5). $200 is payable
as an application fee and a $5K initial deposit is made toward the costs.
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.
FEDERAL/STATE PARTNERSHIPS
For FY95, Missouri has a CPCA and SSCAs with the U.S. EPA, and is negotiating a
SMOA.
252
-------
NEBRASKA
SITES
NPL Sites State Sites
Final: 8 Known and Suspected: 400
Proposed: 2 Identification as Needing Attention: 200
Deleted: 0 On Inventory or Priority List: No List
STATUTORY AUTHORITIES
The Environmental Protection Act (Neb. Rev. Stat §81-1501 through §81-1533) does not
cover Superfund sites specifically. However, Nebraska uses NCRR Vol. 8 Tit. 118 of its
regulations, promulgated under §81-1505, to prohibit pollution of groundwater and to set
standards for cleanups; Title 119 deals with NPDES; Title 122, deals with underground
injection (UIQ; and Title 128, covers hazardous waste rules and regulations.
The Remedial Action Plan Monitoring Act (LB 1349 §81-15,181 to 81-15,188) established
Nebraska's voluntary cleanup program effective as of January 1,1995.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Air and Waste Management Division of the Department
of Environmental Quality has 17 FTE staff. Legal support is provided by one DEQ attorney.
The majority of the program's funding comes from Federal grants (90%), the rest being
supplied by State general funds (8%), and voluntary cleanup costs (2%).
CLEANUP ACTIVITIES
At NPL sites, two remedial actions are currently underway, one remedial action was
completed during the past fiscal year, and one has been completed since the beginning of the
program. Currently, there are three removals underway at NPL sites. Two removals have
been completed in the past fiscal year, and two since the start of the program. There have
been no activities at non-NPL sites.
CLEANUP FUNDING
Nebraska has no State cleanup fund.
CLEANUP POLICIES AND CRITERIA
Cleanup standards are assessed on a site-by-site basis. Tit 118 sets standards for
groundwater cleanup, which are applied where appropriate, and water quality criteria,
which are also applied where appropriate. Risk levels are site specific but the State generally
uses risk levels of 104 - 1Q4.
253
-------
PUBLIC PARTICIPATION
Tit 118 requires RPs to submit a Remedial Action proposal based on "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.
ENFORCEMENT
Liability
Tit. 118 authorizes Nebraska to issue administrative orders and injunctions against
RPs 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.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Anyone is eligible to participate in Nebraska's voluntary cleanup program.
Participants will receive a letter from the State indicating the site has been cleaned up to the
State's satisfaction. The program was established in 1995. The State's participation is funded
by PRPs. The State's fees include a $5K application fee and a $5K participation fee. Nebraska
does not have a brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Nebraska has a CPCA and SSCAs with U.S. EPA, and is negotiating a
SMOA.
254
-------
R
EGION VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
255
-------
COLORADO
SITES
NPL Sites State Sites
Final: 17 Known and Suspected: 225
Proposed: 2 Identified as Needing Attention: 225
Deleted: 1 On Inventory or Priority List:
STATUTORY AUTHORITIES
The Hazardous Waste Sites Act, Colo. Rev. Stat. §§25-16-101 et seq. (1985, as amended
1988 and 1990), establishes the Hazardous Substance Response Fund and the Natural
Resource Damages Fund. Enforcement by Colorado is based on authorities in its 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. §§25-15-101 et sea. The
Voluntary Cleanup and Redevelopment Act, Colo. Rev. State §§25-16-301 et seq. provides for
voluntary cleanup.
PROGRAM ORGANIZATION AND FUNDING
Within the Department of Public Health and Environment, the Hazardous Materials
and Waste Management Division contains 18.5 full-time staff working on Superfund. Ten
staff in the Attorney General's office provide legal support. Funding for program
administration comes from Federal grants (60%), from PRP response cost reimbursement
(30%), and from the State cleanup fund (10%).
CLEANUP ACTIVITIES
Remediation is currently underway at 17 NPL sites. (This figure includes remedial
actions at proposed NPL sites). Three NPL sites have been fully remediated since the start of
the cleanup program. There is no history of action at non-NPL sites (natural resource
damages cases excluded).
CLEANUP FUNDING
The Hazardous Substances Response Fund, with a balance of $13.4M as of the end of
the fiscal year (6/30/95), is available for CERCLA match, operations and maintenance, and
program administration. Significant (>20%) sources of the fund include cost recoveries and
fees; a minor source is interest Additions to the fund during FY95 totaled S3.3M. Obligations
from the fund during FY95 totaled $10M; expenditures totaled $2.8M.
The Natural Resource Damages Fund had a balance of $2.8M as of 6/30/95. Its
sources are natural resource damages settlements and interest, and it may be used for
natural resource restoration in accordance with CERCLA. There have been no expenditures
from the fund.
256
-------
CLEANUP POLICIES AND CRITERIA
Cleanup levels are determined using water quality criteria, MCLs, background levels,
risk assessment, and State ARARs, including hazardous waste remedial standards
promulgated as part of its RCRA-type program. The State uses a risk level of 1Q4 to 10*.
PUBLIC PARTICIPATION
Colorado has no formal public participation requirements. The Colorado Attorney
General follows NCP guidelines in natural resource damages cases. The State currently
makes increasing use of technical and non-technical advisory groups for input on decisions
and future land use.
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) for
cleanup of some sites. The State has used its hazardous waste law at Rocky Flats and Rocky
Mountain Arsenal.
Natural Resource Damages
The State's natural resource damages (NRD) program began in 1987 and has
recovered approximately $5.7M to date. The State Attorney General has filed 7 NRD
lawsuits, of which five have been settled, with remedial action underway. Two others are
being addressed under Federal Superfund. The amount of pending claims is not specified.
The State collects damages in settlements and segregates them for authorization by natural
resource trustees as remediation is completed.
Property Transfer
The State has no property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The Voluntary Cleanup and Redevelopment Act of 1995 established a program under
which all sites except UST, RCRA, NPL, and CWA sites are eligible for participation.
Participants are eligible for no further action needed agreements with the State. Colorado's
participation is funded by a $2K per site fee.
Though Colorado has no official brownfields program or written policy, the State is
working on three EPA pilot brownfield sites.
FEDERAL/STATE PARTNERSHIPS
For FY95, Colorado has a CPCA, a SMOA, and SSCAs with U.S. EPA.
257
-------
MONTANA
SITES
NPL Sites State Sites
Final: 8 Known and Suspected: 277
Proposed: 1 Identified as Needing Attention: 240
Deleted: 0 On Inventory or Priority List: 277
STATUTORY AUTHORITIES
The Comprehensive Environmental Cleanup and Responsibility Act (CECRA), Mont. Code
Ann. §§75-10-701 through -738, (1989, as amended 1991,1993, and 1995), provides
enforcement authority, establishes the Environmental Quality Protection Fund, provides a
priority list, and allows for a voluntary cleanup program.
State Participation in CERCLA, Mont. Code Ann. §§75-10-601 through -627 (1983, as
amended 1987,1993, and 1995), establishes the Hazardous Waste/CERCLA Special Revenue
Account and gives the State bonding authority.
PROGRAM ORGANIZATION AND FUNDING
The Superfund Section of the Environmental Remediation Division of the Department
of Environmental Quality (MDEQ) has 25 full-time employees on Federal and State
Superfund programs. Legal support is provided by four assistant Attorneys General
assigned to the Superfund Section. Funding for State program administration is provided by
the State cleanup fund, while funding for the State administration of the Federal program is
provided by Federal grants. Administration of some special projects is funded by PRP direct
funding.
CLEANUP ACTIVITIES
Nine remedial actions are currently underway at NPL sites, and remedial actions
have been completed at 14 NPL sites since the start of the program. Removals are currently
underway at eight NPL, and removals have been completed at 13 NPL sites since the start of
the program. Montana classifies cleanups as interim or final, not remedial actions or
removals. Cleanups at non-NPL sites are not tracked based on a fiscal year basis, so no data
for FY95 is available. Fourteen interim cleanups are currently underway, and 93 interim
cleanups have been completed since the start of the program. Final cleanups are underway at
seven non-NPL sites, and 34 final cleanups have been completed since the start of the
program. At non-NPL sites, five cleanups were paid for out of the State fund and the rest
were covered by responsible parties. Federal facilities make up 30 of the non-NPL sites and
none of the NPL sites.
258
-------
CLEANUP FUNDING
The Environmental Quality Protection Fund (EQPF), with a balance of $1.4M as of the
end of the last fiscal year (6/30/95), is available for site investigation, studies and design,
removals, emergency response, remedial actions, operations and maintenance, program
administration, and natural resource restoration. The fund interest is appropriated. Another
major (>20%) source of funds is cost recovery. Minor (<20%) funding sources include
penalties, settlements, and natural resource damages. Additions to the fund during FY95
totaled S674K. During FY95, nothing from the EQPF was spent at NPL sites, and $690K at
non-NPL sites.
The Hazardous Waste/CERCLA Special Revenue Account is available for CERCLA
match, site investigation, remedial actions, emergency response, operation and maintenance,
and program administration. The account receives 18% of the interest earned annually by the
Resource Indemnity Trust Fund. The statute establishing the account provides bonding
authority, but this authority has not been used. Other authorized funding sources whose
contributions to the fund are not significant include cost recoveries, interest, and penalties
and damages. The amount of additions to the account during FY95 are not available. During
FY95, expenditures from the account totaled $19K, all of which was spent on NPL sites.
In addition, Federal Agreements resulted in $1.6M paid out during FY95 to NPL sites,
while a Direct PRP Fund resulted in $320K paid out during FY95 to NPL sites and $150K to
non-NPL sites.
CLEANUP POLICIES AND CRITERIA
CECRA requires cleanup that assures protection of public health, safety and welfare,
and the environment and that is consistent with all applicable and well-suited environmental
requirements, criteria, and limitations. The State applies cleanup criteria on a site by site
basis. The State uses water quality criteria, MCLs, background levels, risk assessments, EPA
guidelines, groundwater standards, and EPA soil screening levels in absence of risk
assessment Site-specific criteria may also be imposed. The State selects cleanup levels
through an ARARs-type process and uses a risk level of 104 for risk assessments. It is
required to select cleanups that demonstrate acceptable mitigation of exposure to risks to the
health, safety, and welfare of the public and the environment, that are effective and reliable,
that use alternative treatment technologies or resource recovery technologies, that are
technically practicable and implementable, and that are cost-effective.
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. New amendments
provide for notice and comment on voluntary cleanup pl?ns. The agency typically allows for
more participation than is required by CECRA.
259
-------
ENFORCEMENT
Liability
Under CECRA, the State can impose strict, joint and several, and retroactive liability.
If a PRP is held jointly and severally liable, it may then ask the court to apportion liability
among the PRPs, but MDEQ is not involved. MDEQ is required to make a good-faith effort
to have RPs carry out cleanup activities before expending State cleanup funds. The State can
issue a unilateral order, negotiate a consent order, institute a civil action, or clean up a site
using State funds. Penalties available to the State include administrative penalties of $1K per
day and civil penalties of $10K per day per violation. Treble damages are also available. The
1995 amendments provide for a two-year pilot study of the use of proportional liability.
Natural Resource Damages
Montana's natural resource damages program, which is separate from the Superfund
Section, was started in 1991 and has approximately seven staff members who are affiliated
with the Attorney General's Office. The State sued the Atlantic Richfield Company (ARCO)
in 1983 for natural resource damages resulting from ARCO's mining and mineral processing
activities at four NPL sites in the Upper Clark Fork River Basin. This case is currently
pending for a claim of $713M.
Property Transfer
Montana has no property transfer provisions, but has a publicly available database
with the locations and descriptions of hazardous waste sites.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Since May 1,1995, Montana has a voluntary cleanup program as part of its State
superfund statute (§§75-10-730 through -738); a six-year sunset clause applies. Any person or
entity is eligible to participate in the voluntary cleanup program. The State approves a
voluntary cleanup plan and supervises a public comment process on the draft plan. The
participant has two years to execute the plan and cannot deviate from the agreed upon
course of action. The participant must reimburse the State for all costs connected to
administration of the voluntary program. Cost recovery is based on actual cost; there is no
standard fee. Incentives for participation in the program include a letter of no further action.
The first application received is for a $300K cleanup.
Montana does not have a separate brownfields program, but prospective purchasers
can participate in the voluntary cleanup program with the owner's permission to facilitate
the redevelopment of brownfields.
FEDERAL/STATE PARTNERSHIPS
For FY95, Montana has a CPCA and SSCAs with U.S. EPA.
260
-------
NORTH DAKOTA
SITES
NPL Sites State Sites
Final: 2 Known and Suspected: 72 (CERCLIS)
Proposed: 0 Identified as Needing Attention: 0
Deleted: 1 On Inventory or Priority List: No List
STATUTORY AUTHORITIES
North Dakota does not have its own State superfund law. The Hazardous Waste
Management Act (HWMA), N.D. Cent. Code §§23-20.3-01 to -10 (1981, as amended 1983,
1987,1991, and 1994) provides authority that can be used in conjunction with cleanups, but it
is limited.
The Water Pollution Control Law, N.D. Cent. Code §61-28-01 et seq. (1967), provides
most of the enforcement authority actually used for cleanups.
In 1989, the State enacted the Environmental Quality Restoration fund, N.D. Cent. Code
§§23-31-01 to 03. This fund applies to all environmental programs, and provides cost
re.' very authority.
PROGRAM ORGANIZATION AND FUNDING
The State does not have a formal superfund program. The lead agency is the Division
of Waste Management, in the Environmental Health Section of the Department of Health.
There are five staff in the Hazardous Waste Program within the Division. An Assistant
Attorney General is assigned to the Department to provide legal support for all
environmental programs. No employees work solely on Superfund. The Hazardous Waste
Program operates on EPA grants.
CLEANUP ACTIVITIES
A remedial action is currently underway at one NPL site, and one remediation has
been completed since the start of the program.
CLEANUP FUNDING
The two main sources for the Environmental Quality Restoration Fund are cost
recovery monies and contributions from settlements. The fund may be used for emergency
response, removals, and'remedial actions. The fund balance was $129K as of the end FY95.
No monies were added, paid out, obligated or encumbered during FY95.
CLEANUP POLICIES AND CRITERIA
The State does not have specific cleanup standards for hazardous substances.
Cleanup levels are determined on a site-by-site basis using water quality criteria, MCLs and
MCLGs, background levels, groundwater standards, soil standards, and Federal guidelines.
261
-------
PUBLIC PARTICIPATION
There is no statutory requirement for public participation, but the Division notifies
local officials with information about a site. Local communities can be involved in site
activities.
ENFORCEMENT
Liability
HWMA provides for retroactive liability, and a choice between joint and several or
proportional liability. It also authorizes administrative orders, injunctive relief, and civil and
criminal penalties.
The Water Pollution Control Law, which protects surface water and groundwater, and
which governs activities that may pollute such water, is the primary enforcement statute. It
authorizes administrative orders, injunctive relief, and civil and criminal penalties.
Natural Resource Damages
No program has been established.
Property Transfer
No program has been established.
VOLUNTARY AND BROWNFIELDS PROGRAMS
North Dakota does not have a voluntary cleanup program or a brownfields program.
FEDERAL/STATE PARTNERSHIPS
North Dakota currently has no partnerships.
262
-------
SOUTH DAKOTA
SITES
NPL Sites State Sites
Final: 3 Known and Suspected: 1065
Proposed: 0 Identified as Needing Attention: 241
Deleted: 1 On Inventory or Priority List: 1065
STATUTORY AUTHORITIES
The Regulated Substance Discharge Law, S.Dak. Codified Laws Ann. §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. §34-11 (1983, as
amended in 1988, and 1995), establishes standards for treatment, storage and disposal of
hazardous wastes, and provides for site access, and civil and criminal penalties.
The Water Pollution Control Act, S.Dak. Codified Laws Ann. §34A-2 (as amended to
Jul ' 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. §34A-10 (as amended to
July 1,1995), provides for a wide range of civil legal remedies including injunctive relief to
abate regulated substance discharges.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environment and Natural Resources (DENR) is the lead agency.
State activities have been PAs, and supporting EPA in the Superfund processes performed
with EPA funding. The Groundwater Quality Program in the Division of Environmental
Regulation has three FTEs dedicated to these activities. Five lawyers in the Attorney
General's office work on natural resource issues, providing legal support as needed.
Federal grants provide 90% of the funds for staff and administration, and the State
general fund provides 10%.
CLEANUP ACTIVITIES
South Dakota categorizes hazardous sites as "open" or "closed." Open sites are any
known sites that are in any stage of activity or are awaiting activity. Closed sites have been
fully remediated, determined to require no action, or determined not to meet standards and
classified as "inactive closed."
Currently, 241 sites are open, and 824 sites have been closed. A total of 63 sites were
closed during the fiscal year (ending 6/30/95). Remediation is currently underway at one
263
-------
NPL site, and a removal is underway at one N'PL site. One N'PL removal has been completed
since the start of the program.
CLEANUP FUNDING
The Regulated Substances Response Fund had a balance of S1.75M at the end of FY95.
The legislature authorized a one-time transfer of $350K to the fund in 1989. A temporary fee
increase on pesticides also provided S150K in earlier years. In FY95, a total of $131K were
added to the fund, and $61K were paid out or obligated. Current funding sources are
penal ties, cost recovery, and 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, with some restrictions.
CLEANUP POLICIES AND CRITERIA
The State determines cleanup criteria on a site "by site basis. Groundwater standards
are used where appropriate. The State risk level of IQr5 is used for benzene in soil.
MCLs/MCLGs, background levels, water quality criteria, and EPA guidelines are also used
to establish cleanup levels.
PUBLIC PARTICIPATION
S.Dak. Codified Laws Ann. §1-40-31 provides for document availability for all DENR
programs. State policy establishes provisions for public notice, public comment and public
meetings. The State also had negotiated rule-making in its regulatory development.
ENFORCEMENT
Liability
The law authorizes orders and injunctive actions to cause the responsible person to
take corrective actions following the discharge of a regulated substance. The law defines
liability for expenditures by the Department as strict, and joint and several, and provides for
a lien on property cleaned up by the Response Fund. The State may levy a civil penalty of
$10K per day per incident
Natural Resource Damages
The State has NRD authority under S.Dak. Codified Laws Ann. §§34A-2-75,34A-11-
14, and 34A-10. No NRD claims have been pursued using State or Federal law. A total of
$30K were expended on one natural resource restoration, which was completed in FY95 as
part of a PRP settlement
Property Transfer
The State has no property transfer provisions.
264
-------
VOLUNTARY AND BROWNFIELDS PROGRAMS
South Dakota does not have a voluntary cleanup program. The State does not have a
formal brownfields program either, but it does assist local communities in obtaining federal
brownfields funds.
FEDERAL/STATE PARTNERSHIPS
For FY95, South Dakota has a CPCA and SSCAs with the U.S. EPA.
265
-------
UTAH
SITES
NPL Sites State Sites
Final: 12 Known and Suspected: 220
Proposed: 2 Identified as Needing Attention:
Deleted: 0 On Inventory or Priority List:
STATUTORY AUTHORITIES
The Hazardous Substances Mitigation Act, Utah Code Ann. §19-6-301 et seq. (1991, as
amended 1995), provides enforcement authority, establishes the Hazardous Substance
Mitigation Fund (HSMF), and provides for a priority list
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 one attorney in the Division of Environmental Response and Remediation and
one attorney in the Utah Attorney General's Office. Funding for program administration is
provided by the State general fund (4%) and by Federal grants (96%).
CLEANUP ACTIVITIES
Remedial actions are currently underway at nine NPL sites. Although no
remediations at NPL sites have been completed in FY95, two have been completed since the
beginning of the program. Three removals are currently underway at NPL sites, while four
were completed during FY95. There are 30 remedial actions underway at non-NPL sites.
Two remedial actions were completed during FY95, and nine have been completed since the
start of the program. Responsible parties paid for all remediation and removal at non-NPL
sites.
CLEANUP FUNDING
The Hazardous Substance Mitigation Fund (HSMF) had a balance of $5.1 M as of
6/30/95. It is available for site investigation, studies and design, removals, emergency
response, CERCLA match, and operations and maintenance. Its primary source is
appropriations, while a minor amount also comes from interest The Act also allows
voluntary contributions to the Fund and private donations constitute a very minor source. A
recent bankruptcy settlement added substantially to the fund, but is earmarked for a specific
NPL site. During FY95, $160K were added to the Fund and $188K were paid out to non-NPL
sites. Appropriations are requested project by project, so that the entire fund is obligated at
all times.
266
-------
CLEANUP POLICIES AND CRITERIA
The State has adopted a flexible cleanup policy which addresses sites on a case-by-
case basis under the ARARs process as provided by CERCLA. It also requires that the source
of contamination must be eliminated or controlled. Residual levels are evaluated according
to other background contaminants, environmental considerations, technical feasibility, and
economic considerations. The State uses water quality criteria, MCLs/MCLGs, risk standard
assessment, groundwater standards, and EPA guidelines where applicable. The State's
Corrective Action Cleanup Standard Policy has been promulgated in the Administrative
Code. Risk assessments are based on EPA guidelines (1CT6 to 10"* risk range).
PUBLIC PARTICIPATION
Utah has no formal public participation requirements. The State follows NCP public
participation requirements. DEQ involves the public in the cleanup process on a site-specific
basis. The most recent larger voluntary agreements are beginning to include public
participation on a more regular basis through use of citizen advisory committees.
ENFORCEMENT
Liability
The State uses strict and proportional liability standards, where appropriate. Joint
and several liability is explicitly not authorized. No punitive damages are available. Civil
penalties of up to $10K per day are available under the UST program. The State program can
impose liability under State law for cleanup of substances disposed of only after 3/18/1985.
Natural Resource Damages
Utah does not have a formal natural resource damages program. However, in 1986,
the State filed one case and received a $37M settlement in 1995. Of the settlement, $9M will
be placed in a trust fund to be expended to restore surface or groundwater resources, and
the remaining $28M will be set aside as a letter of credit for use in remediation actions.
Property Transfer
Utah does not have property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Utah has had a voluntary cleanup program for contaminated sites as a part of the
State cleanup program since 1991. Any responsible party is eligible to participate. There is no
specific incentive to encourage participation. State participation is funded through
reimbursement by PRPs, or the State General Fund. The State may charge $60 per hour for its
services. There have not been many voluntary cleanups done so far, but interest has
increased recently.
267
-------
The State does not have a brownfields program. However, redevelopment of
industrial properties through the voluntary cleanup program is strongly encouraged.
FEDERAL/STATE PARTNERSHIPS
For FY95, Utah has a CPCA, a SMOA, and SSCAs with U.S. EPA.
268
-------
WYOMING
SITES
NPL Sites State Sites
Final: 2 Known and Suspected: 140
Proposed: 0 Identified as Needing Attention:
Deleted: 0 On Inventory or Priority List:
STATUTORY AUTHORITIES
The Environmental Quality Act, Wyo. StaL Ann. §§35-11-101 through -1428 (1973, as
amended 1991 and 1993), establishes Wyoming's Environmental Quality Council and
provides enforcement authority, citizen suit provisions, and property transfer provisions.
The Act does not establish a cleanup fund, but it authorizes the use of funds from the Trust
and Agency Account Fund to address hazardous waste emergencies. Wyoming relies upon
its other environmental statutes for enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
Wyoming does not have a formal superfund program. Responsibility for hazardous
waste issues is distributed among the several divisions of the Department of Environmental
Quality (DEQ), including the Solid and Hazardous Waste Division and the Water Quality
Division. State officials could not provide a figure for the number of staff working full-time
on hazardous waste issues. Legal support is provided by five attorneys in the Attorney
General's Office. Approximately 80% of funding for program administration comes from
Federal grants, while 20% comes from permit fees.
CLEANUP ACTIVITIES
Remedial actions are underway at two NPL sites. No NPL sites have been fully
remediated. No removals are currently underway at NPL sites. At least two removals have
been completed at NPL sites. State officials could not provide information on activity at non-
NPL sites.
CLEANUP FUNDING
Although Wyoming has no cleanup fund, DEQ is authorized to use funds from the
Trust and Agency Account Fund to remedy and abate hazardous waste emergencies. The
State could not provide information about the financial status of this fund (e.g., balance,
additions, obligations, expenditures).
CLEANUP POLICIES AND CRITERIA
Cleanup levels are established on a site-by-site basis using Federal standards, such as
MCLs and ACLs, where appropriate. The State has standards for inorganic and organic
269
-------
compounds in water, and establishes site-specific cleanup criteria based on grounds ater a.r ^
surface water protection standards. If no appropnate standard exists, background levels and
risk-based levels are applied. The State uses risk levels of 10"6 for carcinogens and a Hazard
Index of 1 for non-carcinogens.
PUBLIC PARTICIPATION
Wyoming has no formal requirements for public participation. Information obtained
by DEQ under the EQA is available for public review. Citizens may comment on
rulemakings and permitting decisions. Wyoming also makes use of citizen commissions at
significant sites.
ENFORCEMENT
Liability
Civil penalties of up to $10K per day are available for violations of the EQA. For
willful and knowing violations, penalties of up to $25K per day are available. No punitive
damages are available. The State uses a joint and several liability standard, but there is no
statutory provision for this standard.
Natural Resource Damages
Wyoming has no natural resource damages program, but it is authorized to use
penalties collected under the EQA for natural resource damages.
Property Transfer
The presence of hazardous substances on a site must be recorded on the deed to the
property. Although the State may use judgment liens to recover State costs on cleanups,
there is no superlien provision.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State does not have a voluntary cleanup program or a brownfields program.
FEDERAL/STATE PARTNERSHIPS
Wyoming has no federal/State partnership agreements.
270
-------
R
EGION IX
Arizona
California
Hawaii
Nevada
271
-------
ARIZONA
SITES
NPL Sites State Sites
Final: 11 Known and Suspected: 1620
Proposed: 0 Identified as Needing Attention: 400
Deleted: 0 On Inventory or Priority List 27
STATUTORY AUTHORITIES
The Environmental Quality Act, Ariz. Rev. Stat (ARS), Tit 49, Ch. 281 to 287 (1986, as
amended 1987,1990,1992,1994, and 1995), establishes the Water Quality Assurance
Revolving Fund and provides for strict, joint and several liability, administrative orders,
abatement and remedial actions, injunctive actions, civil penalties, cost recovery, treble
damages, and requires the Department to set risk-based remediation standards for
residential and non-residential use. The 1992 Amendments, ARS, Tit. 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, Tit 49, Ch. 295
(1992) provides for environmental lien authority.
PROGRAM ORGANIZATION AND FUNDING
The Remedial Projects Section in the Waste Programs Division, Department of
Environmental Quality (DEQ), has 24 full-time staff members and three in-house paralegals
for legal support working on non-NPL sites. The Office of the Attorney General provides
two attorneys.
The Fund covers 66% of administrative costs, with Federal grants providing the
remaining 34% of the funding.
CLEANUP ACTIVITIES
Remedial actions are currently underway at six NPL sites with eight sites completed
since the start of the program and three completed in FY95. No removals are currently
underway, nor were any completed in FY95, at NPL sites, but four have been completed
since the start of the program.
Remedial actions are underway at 12 non-NPL sites. Thirteen actions have been
completed since the start of the program; two completed in FY95. Removals are currently
underway at one non-NPL site. Fifty-six removals at non-NPL sites have been completed
since the start of the program and six removals were completed in FY95.
CLEANUP FUNDING
The Water Quality Assurance Revolving Fund had a balance of S1.28M at the end of
the fiscal year (6/30/95). Additions totalled S1.55M during FY95. Expenditures for non-NPL
sites totaled S1.12M.
272
-------
The Fund consists of monies from cost recoveries and a variety of fees including
fertilizer license, pesticide registration, industrial discharge registration, aquifer protection
permit application, solid waste landfill registration, and hazardous waste facility fees.
Appropriations are a significant source of Fund monies. A water quality assurance tax,
penalties and bonds are minor sources of Fund monies.
The Fund is used to pay for program administration, site investigation, studies and
design, removals, remedial actions, emergency response, CERCLA match, loans to local
government, and operations and maintenance.
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 hazardous waste cleanup standards (40 CFR Parts 260-280 adopted
by reference), MCLs, and State water quality standards where appropriate. If there is no
standard available for a specific contaminant, background levels and health-based guidance
levels (HBGLs) are used. HBGLs are unenforceable risk assessment-based guidelines which
may be used as cleanup levels when a party voluntarily agrees to use them or EPA adopts
them as ARARs. Site-specific risk assessments use a 10* level for chronic effects and the oral
reference dose for acute effects.
PUBLIC PARTICIPATION
The State has a 30-day public comment period for site and program actions.
Associated meetings and hearings are discretionary, but one or both are held as standard
practice.
ENFORCEMENT
Liability
Liability is strict, joint and several, and retroactive. The State prefers to work with
steering committees which apportion liability. Civil penalties are $5K per day, plus three
times the remedial action costs for failure to comply with an order. Treble damages are
authorized
Natural Resource Damages
Although the State has no written policy, all cleanup settlements signed by the
Director (since July 1991), contain a clause reserving the right to claim or assess natural
resource damages. No damages have been recovered and no claims are pending.
273
-------
Property Transfer
The State has environmental lien authority (ARSA §49-295). The lien is not superior to
prior recorded liens. 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.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has a voluntary cleanup program (ARS §49-285.B), established in 1992, in
which any person other than the State can participate. The program enhances volunteers'
cost recovery capabilities and participants may be able to obtain a covenant not to sue. The
State's participation is funded by reimbursement from volunteers.
The State has no brownfields program, but is targeting brownfields sites through the
voluntary program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Arizona has a CPCA, a SMOA, and SSCAs with U.S. EPA.
274
-------
CALIFORNIA
SITES
NTL Sites State Sites
Final: 95 Known and Suspected: 4,809
Proposed: 1 Identified as Needing Attention: 1,079
Deleted: 1 On Inventory or Priority List: 293
STATUTORY AUTHORITIES
The Hazardous Substance Account Act, Cal. Health & 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, and the Hazardous Substance Cleanup Financing
Authority Act, §§25392 - 25395 (1984), establishes the site mitigation program and provides a
cleanup fund.
Property transfer disclosure requirements are included in §25359.7, Ch. 6.8 of the Cal.
Health & Safety Code.
PROGRAM ORGANIZATION AND FUNDING
The Department of Toxic Substances Control (DTSQ, Site Mitigation Program is
staffed with 297.34 people, 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
eight attorneys assigned to the Site Mitigation Program, and the Attorney General's Office
provides another four to five attorneys. The Department also works with the California
Water Resources Quality Control Board and the Regional Water Quality Control Boards. The
Regional Water Quality Control Boards also undertake their own cleanups in cases of
"classic" groundwater contamination-
Funding for the Department's Site Mitigation Program comes primarily from the
Hazardous Waste Control Account, federal grants, hazardous waste disposal fees, cost
recovery, reimbursements, and activity fees. The budget for site mitigation activities is
S59.4M, of which $4M is for direct site cleanup.
CLEANUP ACTIVITIES
CalSites, the State inventory of sites, is being reevaluated to delete or exclude any
sites where there is no evidence of a release. Since this CalSites Validation Program began in
the fall of 1993 the original list of more than 26,500 sites has been reduced to 4800, with
further delistings every month. Since the start of the State's cleanup program, eight remedial
actions have been completed at NPL sites and 238 at non-NPL sites. Remediation is currently
underway at 204 non-NPL sites (FY96). During FY95, remedial actions were completed at ten
NPL and 11 non-NPL sites. Since the start of the State's program, 155 removals have been
completed at NPL sites and 457 at non-NPL sites. During FY95,21 removals were completed
at NPL and 49 at non-NPL sites.
275
-------
CLEANUP FUNDING
The Hazardous Waste Control Account (HWCA) had a balance of $56M at the end of
FY95 (6/30/95). Fees were the major source of funding, with cost recoveries contributing
approximately 12% of the total. The fund may be used for site investigation, studies and
design, removal and remedial actions (prohibited until RPs are given notice and opportunity
to cleanup), emergency response, O&M, State CERCLA match, program administration, and
enforcement against RPs.
The Hazardous Substance Cleanup Bond Fund had a balance of S3.4M at the end of
FY95. 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, and
operations and maintenance.
CLEANUP POLICIES AND CRITERIA
Site-specific cleanup levels are based on acceptable risks, future land use, and the
NCP's nine balancing criteria. The State sets risk levels at 10~* to 10"7, with 10"* as a point of
departure. Remedial action plans must be based upon, among other things, the effect of
contamination on beneficial uses of resources, the effect of alternative remedial action
measures on groundwater, site-specific characteristics, and cost effectiveness. The State has
promulgated MCLs for many water contaminants and a number of other standards,
including air toxics. The State also uses background levels and risk assessments to determine
cleanup levels.
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.
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 RP must be given notice and opportunity to assume cleanup
responsibility, and fail to comply, in order for the State to undertake a cleanup or
enforcement activity. Recent legislation allows cooperating RPs to sue non-cooperating RPs
276
-------
for 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
DTSC and the Department of Fish and Game have been designated as the State's
Trustees for natural resources. DTSC frequently files claims under CERCLA and OPA as
well as State law. The Department of Fish and Game has been working with natural resource
damages assessment law since the early 1960s. They restore damaged natural resources
using reimbursable funding from RPs and the Department of Fish and Game's Pollution and
Abatement Account The DTSC has recovered $23,855,533 for three major NRD cases.
Approximately 25 full-time staff members manage DTSC's natural resource damages
activities, which 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 disclosure before the transfer of property.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has a Voluntary Cleanup Program for sites that present low threat levels.
Participant sites are not listed, and the program gives responsible parties more control over
cleanup. The program, which was established in 1994, is funded 100% by responsible parties.
Although there is no official brownfields program, the State targets brownfields
through a variety of programs: VCP, CalSites Validation Program, Annual Workplan Sites,
regional groundwater plumes, and contaminated aquifers (innocent landowners relieved of
liability).
FEDERAL/STATE PARTNERSHIPS
For FY95, California has a CPCA, a SMOA, and SSCAs with U.S. EPA.
277
-------
HAWAII
SITES
NPL Sites State Sites
Final: 4 Known and Suspected: 200
Proposed: 0 Identified as Needing Attention: 25
Deleted: 0 On Inventory or Priority List: 1
STATUTORY AUTHORITIES
The Environmental Response Law, Haw. Rev. Stats. §§128D-1 et seq. (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, and provision of
alternative water supplies.
PROGRAM ORGANIZATION AND FUNDING
The Hazard Evaluation and Emergency Response Office (HEER) in the
Environmental Management Division of the Department of Health has 22 full-time
employees, who handle all aspects of response actions on NPL and non-NPL sites. One
attorney from the Attorney General's Office works 40% for HEER. HEER gets approximately
51% of its funding from Federal grants, 18% from the State General Fund, and 31% from the
State Cleanup Fund.
CLEANUP ACTIVITIES
Remedial actions are currently underway at four NPL sites. The State's priority list is
limited to sites where a formal cleanup agreement has been signed. In addition to the
cleanup at the one listed site, the HEER Office is currently overseeing response actions at 25
non-NPL sites where there is no formal order or agreement The majority of the State's sites
have needed only removal actions and have been completed within one month. At non-NPL
sites, four removals are currently underway, approximately ten were completed in FY95, and
about 30 have been completed since the start of the program. Most of the 200 known and
suspected sites are in the investigative stage.
CLEANUP FUNDING
The Environmental Response Revolving Fund had a balance of $3M at the end of the
fiscal year (6/30/95). During FY95, $1.7M added to the fund and $500K were paid out for
non-NPL sites. Also during FY95, $1.2M were obligated or encumbered for non-NPL sites.
Taxes are a significant source of funding. Minor sources include appropriations, penalties,
cost recoveries, interest, bonds, fees, private funds, and transfers. This fund 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.
278
-------
CLEANUP POLICIES AND CRITERIA
On 8/17/95, the HEER Office adopted regulations establishing risk management
criteria and cleanup policies. Water quality criteria, MCLs/MCLGs, and background levels
are used where appropriate. Standards for subsurface contamination are being established
by a policy statement The State also has a modeling process and has established standards
for petroleum constituents. The State uses a risk range between 1Q4 and 10*.
PUBLIC PARTICIPATION
Public participation is at the discretion of the Director if the cleanup is performed by a
PRP. If the State is paying for the cleanup the regulations require establishing.an
Administrative Record, publishing a notice of availability of the Administrative Record in a
newspaper, soliciting public comments on the proposed action, and public hearings. The
Department of Health is required to develop a public education program for hazardous
waste issues.
ENFORCEMENT
Liability
Liability is strict, joint and several, retroactive, and includes liability for natural
resource damages. Civil penalties are available for $10K per day for failure to report a
release and at least S50K-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 superfund statute allows the State to recover NRDs and use the
Environmental Response Revolving Fund for restoration, rehabilitation, replacement or
acquisition of natural resources that were damaged or destroyed due to a release. No money
has been recovered since the start of the program in 1990, and no claims are pending.
Property Transfer
Hawaii does not have a property transfer provision.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The State has no formal voluntary or brownfields programs.
FEDERAL/STATE PARTNERSHIPS
For FY95, Hawaii has a CPCA, a SMOA, and SSCAs with U.S. EPA.
279
-------
NEVADA
SITES
NPL Sites State Sites
Final: 1 Known and Suspected: 136
Proposed: 0 Identified as Needing Attention: 136
Deleted: 0 On Inventory or Priority List:
STATUTORY AUTHORITIES
Neo. Rev. Stat. §§549.400-459.600 (1981, as amended 1983,1985,1987,1989,1991),
known as the "Hazardous Waste Statute," primarily covers operating facilities. It gives
authority for spill cleanup by either the State or responsible parties. It also establishes the
Hazardous Waste Management Fund. The 1991 amendment strengthens the ability to require
and perform site assessments.
The Water Pollution Control Law, Nev. Rev. Stat. §445, provides for additional
enforcement authorities.
PROGRAM ORGANIZATION AND FUNDING
The Bureau of Corrective Actions, part of the Department of Conservation and
Natural Resources' Division of Environmental Protection, oversees the State's Superfund,
RCRA corrective action, and UST programs. The Bureau has a full-time staff of 24, with 10-
12 FTEs devoted to RCRA and Superfund activities. The Attorney General's Office supplies
two attorneys to the Division.
CLEANUP ACTIVITIES
The authorized RCRA regulatory program, and statutory authority under the Water
Pollution Control Lao are the primary mechanisms used to require and oversee remedial
actions. The Bureau of Federal Facilities handles federal facilities. There are currently
remedial actions underway at 110-127 non-NPL sites. Since the start of the State's cleanup
program, 340 remedial actions have been completed at non-NPL sites. Sixty eight remedial
actions were completed at non-NPL sites during FY95.
CLEANUP FUNDING
The Hazardous Waste Management Fund had a balance of more than $1M at the end
of the fiscal year (6/30/95). During FY95, approximately S500K were paid out from the fund
for non-NPL sites. Most of the additions come from waste volume fees. Cost recovenes and
penalties are also minor sources of funding, but the State has not been aggressively pursuing
cost recoveries recently. The fund monies may be used for site investigation, studies and
design, removals, emergency response, remedial actions, CERCLA match, O&M, natural
resource restoration, and program administration.
280
-------
CLEANUP POLICIES AND CRITERIA
The State has adopted regulations which establish standards for soil and
groundwater contaminated by petroleum products. The Contaminated Soil and
Groundwater Policy of 6/25/92 set remediation standards for other releases. Water quality
criteria, MCLs/MCLGs, and risk standard assessments are used to set these standards.
PUBLIC PARTICIPATION
The Corrective Action Bureau strictly adheres to general NDEP public participation
requirements, which address public notification, 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 educate the regulated
community and the general public about its programs.
ENFORCEMENT
Liability
Liability is strict for those in possession of hazardous material involved in a spill.
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 natural resource damages program.
Property Transfer
Nevada does not have property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
The voluntary program is part of the standard cleanup program, and all PRPs are
eligible to participate. Civil penalties will not be assessed against PRPs who participate.
The State has no brownfields program, but is considering developing one. It targets
areas currently zoned for industrial use for cleanup.
FEDERAL/STATE PARTNERSHIPS
For FY95, Nevada has a CPCA, a SMOA, and SSCAs with U.S. EPA.
281
-------
JLVEGION X
Alaska
Idaho
Oregon
Washington
282
-------
ALASKA
SITES
NPL Sites State Sites
Final: 8 Known and Suspected: 1347
Proposed: 0 Identified as Needing Attention: 1347
Deleted: 0 On Inventory or Priority List: 1347
STATUTORY AUTHORITIES
The Oil and Hazardous Substance Releases Law, Alaska Stats. §§46.08.005 to .900 (1986,
as amended 1989,1990,1991,1994,1995), authorizes a fund and provides for administrative
and consent order authority, injunctive relief, civil and criminal penalties, and cost recovery.
The Hazardous Substance Release Control Law, Alaska Stats. §§46.09.010 to .900 (1986, as
amended 1990,1991,1993,1994), covers enforcement and other provisions.
The Liability and Cost for Oil and Hazardous Substances Discharge Law, Alaska Stats.
§§46.03.822 et seq. (1972, as amended 1976,1989,1991,1992), was used in response to the
Exxon Valdez oil spill and provides for strict, joint and several liability.
The Oil and Hazardous Substance Pollution Control Law, Alaska Stats. 46.04 (1980, as
amended 1982,1986,1989,1990,1991,1992,1993,1994) provides additional authorities.
PROGRAM ORGANIZATION AND FUNDING
The Department of Environmental Conservation, Spill Prevention and Response
Division, Contaminated Sites Remediation Program is responsible for cleanup activities at
historically contaminated sites. This section has 42 FTEs devoted to State and Federal
Superfund activities. Funding for staff and administration is provided by the Response Fund
(55%) and federal grants (45%). The Office of the Attorney General provides legal support
with 2.5 FTE attorneys.
Spill emergency response is handled by the Division's Government Preparedness and
Response Program.
CLEANUP ACTIVITIES
The State does not differentiate between remedial actions and removals. Currently,
there are seven remedial actions underway at NPL sites and 1216 at non-NPL sites. At NPL
sites, there were no remedial actions completed in the past fiscal year. Seventy-three
remedial actions were completed at non-NPL sites in FY95. Since the start of the program,
one remedial action has been completed at an NPL site. At non-NPL sites, 334 remedial
actions have been completed since the start of the State's program.
A total of 35 activities at non-NPL sites were paid for by the State since the start of the
program. Two hundred and ninety-nine were paid for by responsible parties.
283
-------
CLEANUP FUNDING
Alaska's State cleanup fund is the Oil and Hazardous Waste Release Response Fund.
This fund is composed of monies appropriated from a Surcharge Account that is funded by a
$.05 per barrel tariff on crude oil. Monies appropnated to a Mitigation Account are further
appropriated by the legislature to the Response Fund. Two accounts comprise the Response
Fund: the Response Account, which had a balance of approximately $50M at the end of FY95,
and the Prevention Account which had a balance of about $23M at the end of FY95. A total of
$28.6M were added to the Response Fund in FY95, with S2.7M of this amount being
appropriated from the Mitigation Account 512.9M were paid out of the fund and $3.6M
were obligated or encumbered during the course of FY95.
The Response Fund can be used for site investigation, studies and design, removals,
emergency response, remedial actions, CERCLA matches, grants to local government, and
program administration.
CLEANUP POLICIES AND CRITERIA
The State uses MCLs/MCLGs, water quality criteria, EPA guidelines, risk assessment,
background levels, groundwater and soil standards, and promulgated standards for cleanup
of petroleum in soils in addressing contaminated sites. State guidelines provide for cleanup
to background levels or for performing a leaching assessment that ensures the proposed
cleanup standard will not affect groundwater. Risk levels of 10"5 are used for risk
assessments.
PUBLIC PARTICIPATION
The Department attempts to involve the public depending on the seriousness of the
site and on public interest Public notice requirements, provisions for public comment,
hearings and meetings, and document availability are all available 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 and joint and several. Civil penalties are $500 to $100K for first .
violations, and no more than $10K per day that a violation continues. Individuals are subject
to criminal penalties of $10K per day, up to one year imprisonment, or both, for knowingly
falsifying documents used for purposes of compliance monitoring.
Natural Resource Damages
The State does have authority independent of Federal law to recover for natural
resource damages under AS 46.04.040 (5). Alaska's authority, however, is very broad, and
284
-------
the only case that is currently pending is the Exxon Valdez Oil Spill. In most cases,
settlements are reached.
Property Transfer
Alaska has no property transfer program.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Alaska is just beginning to develop a voluntary cleanup program as enabled by a core
grant from the EPA brownfields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Alaska has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
285
-------
IDAHO
SITES
NFL Sites State Sites
Final: 8 Known and Suspected: 59
Proposed: 2 Identified as Needing Attention:
Deleted: 1 On Inventory or Priority List: No List
STATUTORY AUTHORITIES
Idaho has no State superfund law. The Idaho Hazardous Waste Management Act
(HWMA), Idaho Code §§39-4401 to -4432 (1983, as amended 1984,1986,1987, and 1988),
establishes two funds, but provides minimal legal authority for site cleanups. The Act also
provides for citizen suits.
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, water quality, and health related programs, to
promulgate regulations, and for current enforcement.
PROGRAM ORGANIZATION AND FUNDING
Two divisions within the Division of Environmental Quality in the Department of
Health and Welfare share CERCLA responsibilities: the Division of Planning and Support
Services, which handles Core grant funding and support services; and the Division of
Community Programs, which handles pre-remedial activities and site-specific remedial
work. Between the two divisions, 20 FTE work primarily on Superfund. One attorney from
the Attorney General's Office is assigned to handle cleanup cases for the DEQ. Program
support is provided by Federal grants (80%), a State cleanup fund (5%) and monies collected
from responsible parties (15%).
CLEANUP ACTIVITIES
At NPL sites, the State has three remedial actions underway. No remedial actions
were completed in the past fiscal year (7/1/94-6/30/95), and seven remedial actions have
been completed since the start of the program. At non-NPL sites, there are currrently no
remedial actions underway. One remedial action at a non-NPL site was completed in the
past fiscal year; four nave been completed since the start of the program.
At NPL sites, one removal is currently underway. One removal was completed in the
past fiscal year and eight have been completed since the start of the program.
A total of five remedial actions and removals were paid by PRPs since the start of the
program, and the State has paid for no remedial actions or removals.
CLEANUP FUNDING
The Hazardous Waste Emergency Account is used to support emergency cleanup
activities. The source of the funds are fees resulting from waste disposal at the Envirosafe
286
-------
Hazardous Waste Landfill. The Account had a balance of $350,877 at the end of FY95.
$78,238 were added during FY95, and $6,817 were paid out, all for work on non-NPL sites.
Idaho also has two funds to support remedial activites at the Bunker Hill Superfund
Site. Both were established in 1995. The Governor's Office Fund has a balance of $1,925,000;
$125K have been expended since July 1995. The Environmental Remediation Fund has a
balance of $2.1M, with S250K having been spent since July 1995.
CLEANUP POLICIES AND CRITERIA
The State uses water quality criteria, MCLs/MCLGs, risk assessment, EPA guidelines,
groundwater standards, and air toxic standards. The State uses risk-based standards and
other EPA guidance as appropriate to select and apply cleanup criteria.
PUBLIC PARTICIPATION
Idaho has no formal program, but attempts to fulfill EPA guidelines. The State
provides opportunity for public comment, hearings and meetings, and document availability
through policy and ad hoc arrangements.
ENFORCEMENT
Liability
For emergency conditions, the State has injunctive and order authorities under the
Idaho Environmental Protection and Health Act. The State can receive $10K per day in civil
penalties, but no punitive damages are available. The State has essentially no enforcement
authorities under the HWMA.
Natural Resource Damages
Idaho has no authority independent of federal law to recover for NRDs. Under
CERCLA, two NRDs have been recovered, one in 1985 for $5M and one in 1994 for work to
meet performance standards and habitat restoration or replacement criteria. Using NRD
monies recovered by the State, two actions are under way, two have been completed and
S1.3M is being spent on these restorations.
'Transfer
Idaho has no property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Idaho does not have a voluntary cleanup program. However, State and federal laws
regulating hazardous waste releases provide the incentive for facility owners and operators
to enter into consent orders with the State to cleanup sites.
Idaho does not have a browntields program.
FEDERAL/STATE PARTNERSHIPS
For FY95, Idaho has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
287
-------
OREGON
SITES
NPL Sites State Sites
Final: 11 Known and Suspected: 1559
Proposed: 1 Identified as Needing Attention: 218
Deleted: 1 On Inventory or Priority List: 124
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) and a priority list, and provides for strict liability, administrative order authority
for cleanup, injunctive relief, civil penalties, cost recovery, liens, and punitive damages.
Amendments establish the Orphan Site Account within HSRAF and modify the inventory
provisions for State sites (ORS §465.215-.245). The amendments of 1991 require classification
of the secured creditor exemption and extend defenses to liability for contamination caused
solely by acts of God and war, and third parties to "knowing purchasers.* The amendments
of 1995 require revision of risk protocols and consideration of a broader range of remedies,
focusing on costs and benefits of competing protective remedies.
PROGRAM ORGANIZATION AND FUNDING
The Waste Management and Cleanup Division (WMCD) in the Department of
Environmental Quality (DEQ) has a staff of 98 FTEs. One attorney from the Oregon
Department of Justice, Attorney General's Office, handles litigation and advises the WMCD
as requested.
Funding for staff and administrative costs is provided by the HSRAF (88%), Federal
grants (3.5%), State General Fund (0.2%) and other fees (primarily petroleum transfer fees)
and penalties (8.3%).
CLEANUP ACTIVITIES
At NPL sites, 11 remedial actions are currently underway and one was completed in
the past fiscal year (7/94 - 6/95). Four remedial actions at NPL sites have been completed
since the start of Oregon's program. At non-NPL sites, 198 remedial actions are currently
underway and four were completed in FY95. Since the start of the program, 19 remedial
actions have been completed at non-NPL sites.
There are two removals underway at NPL sites. Three removals have been completed
since the start of the State program at NPL sites; none were completed in the last fiscal year.
Thirty-four removals are underway at non-NPL sites. In the last fiscal year, nine removals
were completed at non-NPL sites and 62 have been completed since the start of the program.
238
-------
CLEANUP FUNDING
The Hazardous Substance Remedial Action Fund (HSRAF) had balance of $4,932,000
at theVnd of 1995. Additions for the biennium accounting period, from 7/1/93 to 6/30/95
totalling $9,481,635 were made to the fund and a total of $11,804,385 were paid out during
the last biennium. No additional funds were encumbered during the biennium. Cost
recoveries and hazardous substance and solid waste tipping fees make up the significant
source of the HSRAF, with additional revenue from interest and penalties. The fund may be
used for emergency response, site investigations, removals, studies and design, remedial
actions, O&M, program administration, grants to local government, and State CERCLA
match.
The Orphan Site Account had a balance of $1,042,000 at the end of 1995. A total of
$6,226,622 were added to the account during the biennium ending in June 1995. $5,757,648
were paid out of the account The significant source of funds for the Orphan Site Account is
bond authority, with minor sources of revenue coming from fees and interest. Authorized
uses for the fund include site investigation, studies and design, removals, remedial actions,
and operations and maintenance.
CLEANUP POLICIES AND CRITERIA
State regulations require cleanup to the "lowest feasible concentration." Cleanup must
be protective and cost-effective. The State uses background levels, water quality,
MCLs/MCLGs, risk assessment, EPA guidelines, and soil standards as cleanup levels.
Oregon also uses feasibility studies to determine and evaluate alternate remedies. Risk levels
of 10* are used for individual carcinogens.
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.
At complex sites, the State may use a risk assessment standard with a risk level of 10"* for
each contaminant and a Hazard Quotient/Hazard Index » 1.
The Oregon DEQ will be revising its cleanup standards by January 1997 as per HB
3352.
PUBLIC PARTICIPATION
The law mandates public notice of DEQs 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
ten people. Public notice is provided for final remedial action. The laws also provides 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.
289
-------
ENFORCEMENT
Liability
The statute establishes strict 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. Civil penalties of up
to $10K are available
The statute authorizes administrative orders, injunctive relief, cost recovery, 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 does have authority independent of federal law to recover for natural
resource damages under ORS 465.255. The State, however, has not sought many NRD
recoveries. The Oregon Fish and Wildlife Service has been involved in some NRDs resulting
from oil spills. Responsible parties are liable under State law for natural resource damages.
Property Transfer
Oregon does have authority for a property transfer program (ORS 465.255(c));
however, there is no active State government role. Sellers are required to disclose the
presence of hazardous substance on the site before transfer.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Oregon does have a voluntary cleanup program, established by policy and guidance
in 1991, that complements the orphan and enforcement program. 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 participation in the program is funded by cost
recovery. An hourly rate for staff oversight is charged.
In addition, the State has a brownfields program established by policy through
voluntary cleanup, prospective purchaser and other provisions of HB 3352, and an EPA-
funded local brownfields pilot program. The program lacks specific criteria for site inclusion
other than commercial/industrial properties mat will be redeveloped after cleanup. Thus far,
over 100 sites are in the program and cleanup is currently underway at 112 of the sites
(including RI/FS phase.)
FEDERAL/STATE PARTNERSHIPS
For FY95, Oregon has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
290
-------
WASHINGTON
SITES
NPL Sites State Sites
Final: 56 Known and Suspected: 1364
Proposed: 0 Identified as Needing Attention: 932
Deleted: 4 On Inventory or Priority List: 507
STATUTORY AUTHORITIES
The Model Toxics Control Act, Wash. Rev. Code Ch. 70.105D (1988, as amended 1993,
1994), authorizes funding for two accounts, provides enforcement authorities, establishes a
priority list, and provides for citizen suits, replacement water supplies, and public
participation procedures. The amendments of 1993 and 1994 relate to private right of actions,
permit exemptions, lender liability, use of agreed orders, the definition of industrial
properties, and prospective purchaser agreements.
PROGRAM ORGANIZATION AND FUNDING
The Department of Ecology, Waste Management Division, includes the Toxics
Cleanup Program which has 145 FTE staff members, 35 of which are federally funded. The
remaining 110 FTEs are supported by the State Toxic Control Account. The Attorney
General's office, handling settlements, has approximately 3.5 FTEs working on cleanups.
Staff and administrative costs are funded by federal grants (24%), a State cleanup fund
(65%), and by State UST fees (11%).
CLEANUP ACTIVITIES
Remedial actions are currently underway at 96 NPL sites and 132 non-NPL sites. In
the past fiscal year, five remedial actions were completed at NPL sites and four at non-NPL
sites. At NPL sites, 24 remedial actions have been completed since the start of the program.
Ninety non-NPL remedial actions have been completed since the start of the program.
There are 11 removals underway at NPL sites and 31 at non-NPL sites. In FY95, nine
NPL removals and eight non-NPL removals were completed. Since the start of the State
program, removals have been completed at 20 NPL sites and 69 non-NPL sites. A total of 29
remedial actions and removals at non-NPL sites were paid for out of State funds; 262 were
financed by responsible parties.
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 account was $2^75,673 at the end of the fiscal year (6/30/95).
The State account received $25,811,359 in FY95. A total of $25.7M was paid out during FY95,
291
-------
all to non-NPL sites. The State account is funded primarily from taxes. Cost recoveries, fees,
interest and penalties also contribute to the fund. The State account can be used for site
investigation, emergency response, removals, studies and design, remedial actions, natural
resource restoration, O&M, State CERCLA match, and program administration. The State
account funds related activities in other agencies in addition to various divisions within the
Department of Ecology. Part of the cleanup fund is set aside for LUST hardship cleanups.
Penalties and fines are earmarked for best management practices and recycling, not cleanup.
The Local Toxics Control Account balance at the end of FY95 was $26,161,300 and
$20,730,515 was added to the account in FY95. A total of $29,158,688 was paid out during
FY95: $11,731,296 to NPL activities, $17,427,392 to non-NPL activities. In total, $16,916,436
was obligated or encumbered during FY95: $14,692,008 to NPL sites and $2,226,428 to non-
NPL activities.
CLEANUP POLICIES AND CRITERIA
Cleanup levels must be at least as stringent as all applicable State and Federal laws.
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, EPA guidelines, Practical Quantitative Limit levels, and standard State
formulas for risk assessment Risk levels of 10"* for total carcinogens, 10"* for residential
carcinogens, and 10* for industrial carcinogens are used.
PUBLIC PARTICIPATION
Early planning and 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 Rl/FS and
Cleanup Action Plan, give concurrent public notice of all compliance orders, enforcement
orders, and notices of violation. Provisions include public notice and hearings on consent
decrees. The Model Toxics Control Act authorizes public participation grants to affected
persons or not-for-profit public interest organizations.
ENFORCEMENT
Liability
The Model Toxics Control Act (MTCA) provides for strict, joint and several liability,
subpoena authority, site access authority, enforcement order authority, injunctive action,
civil penalties (up to $25K per day), cost recovery, and treble damages. Citizen suits and
contractor indemnification are also authorized. Private rights of action (contribution claims)
are now provided for under the MTCA.
292
-------
Natural Resource Damages
Since 1990, RCW 70.105D.040(2) authorizes the State to collect natural resource
damages. The Department of Ecology is the designated natural resources trustee and has one
FTE assigned to pursuing NRDs under CERCLA/SARA authority. The State has collected
approximately $45M as a joint trustee with the Federal trustees and tribes in four settlements.
Three claims are pending. Currently, there are five natural resource restorations underway
and three have been completed thus far. A total of $25M has been spent on restorations.
Property Transfer
The State has no property transfer provisions.
VOLUNTARY AND BROWNFIELDS PROGRAMS
Washington does have a voluntary cleanup program, established in 1993 by
regulation (WAC 173,340,550 (7)). Any PRP who submits a cleanup report with a fee is
eligible. Participants receive a timely review of cleanup report and written determination.
State participation in the program is funded by fees paid by the participants. The State
charges a fee of 2% of cleanup costs. Costs of voluntary cleanups are $54K on average.
Washington does not have a brownfields program; however, the State is targeting
brownfields through independent cleanups, prospective purchaser agreements, and
prepayment agreements.
FEDERAL/STATE PARTNERSHIPS
For FY95, Washington has a CPCA, a SMOA, and SSCAs with the U.S. EPA.
293
4- U S GOVERNMENT PRINTING OFFICE 1996-723-017 83303
------- |