United States Office of Emergency and EPA/540/8-89/011
Environmental Protection Remedial Response September 1989
Agency Washington DC 20460
Superfund
x>EPA An Analysis of State
Superfund Programs
50-State Study
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EPA/540/8-89/011
Sept. 1989
AN ANALYSIS OF STATE
SUPERFUND PROGRAMS: 50-State Study
September 1989
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Emergency & Remedial Response
Hazardous Site Control Division
Washington, D.C. 20460
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NOTICE
This document was prepared by the Environmental Law
Institute for the U.S. Environmental Protection Agency under
contract No. 68-W8-0098.
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ACKNOWLEDGEMENTS
Cathy O'Connell served as EPA Project Officer under the
supervision of Murray Newton and William Ross, State and
Local Coordination Branch. Environmental Law Institute
staff contributing to the report were Dr. Glen Anderson
(Project Manager), James McElfish, John Pendergrass, Lisa
St. Amand, Laura Kosloff, Ann DeBossu, Fran Greenleaf,
Andrew Moyad, Michael Malecek, and Jessica Mark. EPA
also acknowledges the assistance of State superfund officials
and staff.
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TABLE OF CONTENTS
Page No.
List of Figures and Tables v
List of Acronyms vi
I. INTRODUCTION 1
II. RESEARCH METHODOLOGY 3
in. STATE "SUPERFUND" PROGRAMS 5
A. Overview of Cleanup Activities and Capabilities 5
B. Statutes 6
C. Hazardous Waste Sites 7
D. Program Organization 12
E. Funding 18
F. Enforcement 26
G. Cleanup Policies and Criteria 32
H. Public Participation 35
TABLES 38
IV. STATE SUMMARIES 99
Region I 101
Region H 114
Region m 119
Region IV 130
Region V 147
Region VI 160
Region VII 171
Region VIII 180
Region IX 193
Region X 202
APPENDIX -- Sample Information Worksheet 211
IV
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FIGURES AND TABLES
Page No.
Figures
FIGURE HI-1 Final and Proposed NPL Sites 8
FIGURE m-2 State Hazardous Waste Sites Needing Attention 9
FIGURE m-3 State "Superfund" Program Staff 14
FIGURE HI-4 SMOAs Signed or in Negotiation/Draft Stage 17
FIGURE m-5 Fund Balances 21
FIGURE IV-1 EPA Regions 100
Tables
TABLE HI-1 Overview of State Cleanup Activities
and Capabilities 39
TABLE ffl-2 Statutory Authorities and Provisions 42
TABLE m-3 Hazardous Waste Sites 48
TABLE ffl-4 Program Organization 53
TABLE m-5 Program Administration and Staff: Funding Sources .... 58
TABLE IH-6 State/Federal Partnership 62
TABLE Ifl-7 Funding of State Cleanup Funds 66
TABLE m-8 Use of State Cleanup Funds 72
TABLE IH-9 Liability Standards 78
TABLE in-10 Penalties and Punitive Damages 82
TABLE m-11 State Cleanup Policies and Criteria 86
TABLE in-12 State Public Participation and Procedures 92
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LIST OF ACRONYMS
AG - Attorney General
ARARs - Applicable or Relevant and Appropriate Requirements
ASTWMO - Association of State and Territorial Waste Management Officials
CA - Cooperative Agreement
CERCLA - Comprehensive Environmental Response, Compensation, and Liability Act
CERCLIS - Comprehensive Environmental Response, Compensation, and Liability
Information System
ELI - Environmental Law Institute
FTE - Full-time Equivalent
GAO - General Accounting Office
HRS - Hazard Ranking System
LUST - Leaking Underground Storage Tank
MA - Management Assistance Grant
MCL - Maximum Contaminant Levels
MSCA - Multi-Site Cooperative Agreement
NCP - National Contingency Plan
NPL - National Priority List
OGC - Office of General Counsel
O&M - Operation and Maintenance
PA/SI - Preliminary Assessment/Site Investigation
PRP - Potentially Responsible Party
RA - Remedial Action
RCRA - Resource Conservation and Recovery Act
RD - Remedial Design
RI/FS - Remedial Investigation/Feasibility Study
ROD - Record of Decision
RP - Responsible Party
SARA - Superfund Amendments and Reauthorization Act
SMOA - Superfund Memorandum of Agreement
TAG - Technical Assistance Grant
UST - Underground Storage Tank
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CHAPTER I
INTRODUCTION
In the nearly nine years that have passed since the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, generally referred to as Superfund)
became law, the enormity of the problems associated with hazardous waste sites has
become overwhelmingly apparent. Coordinated cleanup efforts between Federal and State
authorities are currently treating numerous sites targeted by the National Priorities List
(NPL); still, a vast number of known or suspected waste sites are not eligible for inclusion
on the NPL and, if they are to be addressed, will have to be addressed by the States. In
certain cases States may feel compelled to respond in a manner that is more stringent or
timely than might be possible in joint Federal-State efforts. Where joint efforts are
required, Federal and State authorities need to ensure that their actions are mutually
supportive but not duplicative. For these reasons, the role of the States in addressing
hazardous waste sites, independently and in concert with the Federal government, will
become increasingly important as the numbers of both NPL and non-NPL sites grow.
States now are responsible for enforcing or funding cleanups at non-NPL sites; at
NPL sites, their responsibility ranges from required cost sharing at Federal fund-lead
cleanups to lead action in site activities. The prospects for increasing State involvement at
both NPL and non-NPL sites depends on the willingness and capacity of States to develop
effective programs, supported by adequate resources to fund cleanups, pursue enforcement
to obtain private cleanups, and conduct oversight activities.
A key step in enhancing the Federal-State partnership on Superfund is to understand
State superfund programs aimed at NPL and non-NPL sites. This is the object of the
present report, which summarizes the results of a study completed by the Environmental
Law Institute (ELI) for the Environmental Protection Agency's Office of Emergency and
Remedial Response, Hazardous Site Control Division, State and Local Coordination Branch.
The study examines site cleanup capabilities in all fifty States and provides descriptions of
statutes, program organization, funding, and cleanup procedures. The report provides
detailed information for each State in a "State Summaries" chapter and in fifty-State tables
that facilitate comparisons between States.
Purpose of the Study
Under the Superfund Amendments and Reauthorization Act (SARA) of 1986,
Congress requires the EPA to involve States in the Superfund program in a "substantial and
meaningful" way. The State and Local Coordination Branch (SLCB) is responsible for
developing regulations, guidance, and policy related to this Congressional mandate. In
order to fulfill its responsibilities, the SLCB needs comprehensive information about State
capabilities to contribute to or manage cleanups at hazardous waste sites. Under the
direction of the EPA Project Manager, ELI collected, organized, and summarized
information on State cleanup programs.
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Organization of the Report
The remainder of the report is divided into three substantive chapters. Chapter n
describes the research methodology and data collection effort. An overview of State
Superfund programs is provided in Chapter HI. This overview examines statutes, program
funding and organization, enforcement, and the remediation process. Chapter IV contains
two-page summaries of each State program. For those States that do not have superfund
programs, the summaries focus on States' capabilities to address hazardous waste sites using
other authorities and resources.
This report represents a "snapshot" of State cleanup programs even though they are
in constant flux and information about them is continuously being updated. For the
purposes of this report, we have used State information that was available on or before
August 29, 1989. States were provided an opportunity to review and update information in
the drafts of the State Summaries prepared in May. Over half of the States provided
revised program information before the cutoff date.
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CHAPTER II
RESEARCH METHODOLOGY
To ensure that the information for this report would be complete, accurate, and up
to date, the project team spent several weeks gathering and analyzing research reports,
statutes, regulations, and State documents, interviewing State program staff, and confirming
information for each State. A detailed account of the research methodology is presented in
this chapter.
The project team first reviewed recent studies and surveys pertaining to State
superfund programs; these are noted in the bibliography. Of particular note are the surveys
conducted by the Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) and the National Association of Attorneys General on funding mechanisms
and statutory authorities, respectively. Current statutes related to superfund programs and
other State cleanup authorities were also collected from State program offices or libraries.
Using an ASTSWMO contact list as an initial source of referrals, program offices in
each State were contacted to request relevant statutes and any available background
information. The type of material received from State offices varied widely. The project
team received annual program status reports, program descriptions, regulations, and site
inventory information, depending upon availability.
A worksheet was developed to organize information on each State. State
worksheets were completed to the extent possible using all available information on
programs and State statutes. An example worksheet is provided in Appendix A of the
report.
All State offices were then contacted to arrange telephone interviews. In most cases
a copy of the worksheet was sent several days beforehand to indicate the scope of
questions that would be asked and to give program staff an opportunity to prepare for the
interview. If the staff declined to be interviewed, they were asked to complete and return
the worksheet.
Telephone interviews were conducted by the project team to obtain information that
was unavailable from secondary sources, clarify ambiguities in statutes or other documents,
and confirm information that had previously been compiled. Often, both remedial program
and enforcement staff were interviewed.
The information for each State was prepared in two formats:
1) a final version of the worksheet, and
2) a 2-page summary.
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The EPA sent each State program office the summary for that State in order to obtain
comments and revisions. State comments in some cases necessitated a revision of the
worksheet and summary.
A set of tables was prepared for the fifty States. These are presented in Chapter
in. The information from the worksheets has also been put into a "Lotus 1-2-3" computer
database to allow for easier updates.
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CHAPTER III
STATE "SUPERFUND" PROGRAMS
The passage of CERCLA authorized the EPA to establish a Superfund program to
address the risks posed by hazardous waste sites. Since CERCLA became law, many
States have enacted laws and developed programs with authorities and capabilities similar
to the Federal Superfund program. In general, a State "superfund" program has some or
all of the following characteristics:
1) procedures for emergency response actions and longer-term remediation of
environmental and health risks at hazardous waste sites, including both NPL and
non-NPL sites;
2) provisions for a fund or other financing mechanisms to pay for studies and
remediation activities;
3) enforcement authorities to compel responsible parties (RPs) to conduct or pay for
studies and/or remediation;
4) staff to manage publicly-funded cleanups and oversee RP-lead cleanups.
In this chapter, information on State "superfund" programs is presented for all fifty
States. The chapter highlights similarities and differences among State statutes and State
programs in areas such as cleanup and oversight capabilities, cleanup standards, funding,
enforcement authorities, program organization, and staffing.
A. Overview of Cleanup Activities and Capabilities
One of the goals of this project was to provide a general assessment of States'
efforts and capabilities to address hazardous waste sites. This was a formidable task
because of the dynamic nature of funding and the many changes that have occurred in the
last few years. Many States have enacted "superfund" legislation within the last two years
and have not reached operational levels in terms of funding and staffing. Thus, in addition
to the many programs that embody the "superfund" attributes above, there are a number of
emerging programs that have only recently been authorized or received initial funds, or
expect to receive funding in the near future.
Table III-l summarizes States' capabilities and cleanup activities at the present time.
Thirty-nine (39) States have funds and enforcement authorities. Twenty-five (25) out of
these 39 States are actively involved in managing removals and remedial actions at non-
NPL sites. Some of these States also manage or oversee cleanups at NPL sites as well.
Fourteen (14) out of the 39 States with funds and enforcement authorities have limited
superfund activities at present Typically, the limited activity is attributable to zero or
insignificant fund balances and/or inadequate staffing levels. In some instances (e.g.,
Iowa), the State's fund is replenished at specific time intervals and the lull in cleanup
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activities is temporary. Activities are limited in several States because legislation was only
recently enacted and funds have not yet been appropriated to operate the program.
The remaining eleven (11) States have limited cleanup capabilities or enforcement
authorities. Six (6) have removal or emergency response programs but limited remedial
action authorities or capabilities (typically because of severely limited funds). Under the
Federal Superfund, "removal or emergency response" refers to actions that may be taken to
prevent or mitigate a release of hazardous materials in circumstances posing an imminent
and substantial danger to public health or the environment. Removal actions may be
needed in a variety of situations, including accidents during transport and at active
hazardous waste facilities, and releases at inactive sites. In contrast to the stopgap nature
of removal actions, "remedial action" is intended to effect permanent or long-term solutions
that address two aspects of site remediation—source control and waste migration
management-and meet legally applicable or relevant and appropriate requirements
(ARARs).
The other five States do not have State superfund programs per g£ (although
legislation to establish a fund is pending in both Nebraska and Delaware), yet each
addresses hazardous waste sites in some manner. Nebraska can use its groundwater
regulations to order remediation of groundwater pollution that occurred after 1978.
Delaware relies on appropriations to fund its emergency response and removal activities.
Oklahoma and Georgia both use RCRA-type laws to order cleanups at superfund sites,
although the statutory authority of each is very different: Oklahoma may act only in regard
to permitting requirements, while Georgia, unique among the States, has broad corrective
action authority that includes certain superfund capabilities. Colorado has a fund but limits
its use to CERCLA cost-share and related administrative costs at NPL sites.
B. Statutes
Many States have enacted laws in the image of CERCLA that establish State
response funds and typically include provisions for enforcement authorities, a State priority
list, and remedy selection criteria. In some States, provisions for a cleanup program and
enforcement authorities may be contained in one statute, while a separate act creates a
State response fund and defines its uses, restrictions, and preconditions for use.
Table ni-2 provides a summary of the principal cleanup statutes and selected
provisions for the fifty States. All but two States, Delaware and Nebraska, have a cleanup
fund or an account that can be tapped for some or all types of cleanup costs. (Delaware,
while it does not technically have a fund, does receive appropriations for emergency
response and CERCLA cost-share.) Much greater detail on funding is provided in Section
E of this chapter.
Eleven (11) States use enforcement authorities contained in statutes that were not
specifically intended to address hazardous waste sites. The largest superfund program in
this category is Michigan, which relies on enforcement authorities contained in numerous
State environmental statutes. Only Colorado and Idaho do not have at least limited
enforcement authorities (see Section F for more details).
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Twenty (20) States make use of (or are authorized to develop) a priority list for
State sites. A priority list typically is one of three types: (1) a list similar to the NPL
comprised of sites identified by a minimum threshold score; (2) a ranking of sites that
determines the order in which sites should be addressed; and (3) a multi-tiered list
indicating the urgency and extent of remediation required. A number of States also have
an inventory, list, or registry of sites which are of particular interest or concern to the State
(see Section C below).
Fifteen (15) States have citizen suit provisions in their statutes. These provisions
allow parties who are or will be adversely affected by a release or threat of a release of a
hazardous substance to file a civil action requiring that the responsible parties prevent
further damage or take corrective action. Courts may also assess penalties in civil actions
filed by citizens. In Massachusetts the court may award costs, including attorney and
expert witness fees. Citizen suits and property transfer programs (discussed below) provide
alternative methods for accomplishing cleanups outside of the superfund process.
Eleven (11) States have provisions for compensating victims of hazardous waste
releases. In six (6) States, this compensation is limited to reimbursement for costs of
securing temporary or permanent alternative water supplies. The remaining five (5) States
are authorized to compensate victims for a broader array of release-related expenses. In
practice, most claims are for replacement of water supplies or relocation.
A recent development at the State level is the property transfer program. The
objective of a property transfer program is to ensure that real property, in the process of
being transferred, does not pose health or environmental risks related to hazardous waste
releases. Basically, owners of certain classes of property must file a negative declaration
concerning past or present storage, disposal, or release of hazardous waste at the property,
or obtain State approval prior to property transfer. In either case, remediation may be
required. Four (4) States-New Jersey, Illinois, Connecticut, and Iowa—have mandatory
property transfer programs; a fifth State, Minnesota, has a voluntary program. The New
Jersey and Illinois programs apply to a broad category of industrial and commercial
properties while the programs in Connecticut and Iowa apply to a more limited group of
properties (hazardous waste establishments in Connecticut, properties listed on the registry
of sites in Iowa). Minnesota provides information on risks and advice on remediation to
property owners and potential buyers.
C. Hazardous Waste Sites
Estimates of hazardous waste sites in the fifty States vary greatly. Despite the
uncertainty surrounding estimates of existing sites and the risks they pose, the number of
sites reported in a State can indicate the level of current program activity, as well as the
need for future cleanup activity. Table IJJ-3 reports the number of sites contained in
various categories of hazardous waste sites in each of the fifty States. Figure HJ-1 reports
the number of sites on the Federal NPL list. Other categories of State sites reported in the
table include an estimate of the total number of hazardous waste sites existing in each
State, the number of those sites which may require cleanup attention, any formal State
priority list, and any State inventory or registry of sites. Figure IJJ-2 illustrates the
distribution of State sites needing cleanup attention.
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Approximately twenty (20) State statutes require the development of a priority list
(see Table m-2). At least twenty-one (21) States reported compiling such a list, however.
Generally, a priority list requires prioritization of sites through a ranking, scoring, or formal
screening procedure. Many States report a less formal listing of sites, called an inventory
or registry, which generally contains all identified, investigated, unconfirmed, and potential
sites. At least twenty-eight (28) States reported a registry or inventory of sites. Often a
State inventory or registry closely matches State sites shown on the Comprehensive
Environmental Response, Compensation, and Liability Information System (CERCLIS) list
compiled by the EPA. In addition, the CERCLIS number is generally used by States as an
upper bound estimate of their hazardous waste sites.
Priority Lists
Of the twenty-one (21) States that report having a priority list, 11 follow a formal
ranking process using the Hazard Ranking System (HRS) or another scoring system. (The
HRS is used to assign hazardous waste sites a numerical score indicating the probable risks
and potential impacts of hazards posed by each site; high-scoring sites are placed on the
NPL to be dealt with on a priority basis.) Ten (10) States organize their priority lists into
priority areas or tiered ranks. It is not uncommon for State lists to contain some or all of
the State's NPL sites.
For example, South Carolina's State Priorities List includes all sites that score 28.5
or less according to the HRS (in other words, those sites that do not qualify for inclusion
on the NPL). Maryland compiles a Disposal Sites Registry, which is a list of ranked sites,
including NPL sites, requiring remedial action. The Registry in this case serves as a
priority list. Maryland also keeps a Master List of sites that are not formally ranked but
are evaluated in terms of potential hazards to public health and the environment, risks of
fire and explosion, toxic hazard, and other criteria established in CERCLA. According to
the categories of this study, this Master List of sites serves the function of an informal
registry.
Site tracking systems often reflect the organization of the cleanup program.
Vermont, which combines all hazardous waste issues into one program, has a priority list
of sites that contains NPL sites and all types of hazardous waste sites, including active
TSD facilities and uncontrolled sites. In addition, Vermont maintains a site discovery file
containing suspected and unconfirmed sites.
Upon completion of the remedy, sites may remain on a priority list, be delisted, or
be moved to another category on the list California, for instance, has a three-tiered
priority list— immediate, substantial, and limited threats—for sites needing cleanup. When
remediation has been completed, sites are moved to the Certified Sites List.
At least three (3) State statutes require that a site be listed on a formal priority list
before the expenditure of funds on remedial actions or studies. Pennsylvania must list sites
on a priority list in order to spend remedial action monies. Expenditure from Arkansas's
fund is limited to sites on the State Priority List, which is divided into two categories: A)
sites that require investigation or a study of remedial alternatives and B) sites that require
remediation. Utah will also restrict fund expenditures to sites on the priority list it is now
developing, which will include NPL and non-NPL sites.
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Inventory/Registry
A State inventory or registry of sites is usually a list of hazardous waste sites that
is broader than a priority list, and often includes unconfirmed or unscreened sites. Twenty-
nine (29) States report keeping an inventory or registry of sites. Connecticut's statute, for
example, creates a site inventory and requires a site to be listed on the inventory before
any funds are expended. Maine's list includes sites that have been cleaned up, as well as
those needing further action, no action, or inspection. Massachusetts' inventory contains
several subsets: locations to be investigated, confirmed disposal sites, a remedial list, and a
list of delisted sites. Ohio's informal list contains sites categorized after a preliminary
assessment as high, medium, or low priority.
Iowa's State Abandoned and Uncontrolled Sites Registry classifies sites in a five-tier
system: imminent threat, significant threat, not a significant threat, closed with management
needed, and closed with no management needed (no further action required). Missouri's
site registry also has five classifications. Florida's Sites List contains investigated sites that
are not yet prioritized. In Texas, a facility cannot be listed on the State Registry if the
potential endangerment can be resolved under other authorities.
State budgeting also affects the development of site categorization. Louisiana is
statutorily required to develop an inventory list, but inadequate funding has delayed
program staff from carrying out this requirement.
In many cases it is difficult to draw distinctions between a priority list and a
registry or inventory because of the different methods used throughout the States. Many
States use the Federal CERCLIS list as a State inventory. Rhode Island, for example,
quotes the CERCLIS number for existing sites in the State. In addition, States may use
other systems for keeping track of sites. For instance, New Jersey does not have a priority
list but instead tracks major remedial actions using a status report format.
Ranking Systems
Not all States have a formal site ranking process. Many do score sites, however,
using a variety of ranking methods, including the Federal Hazard Ranking System (HRS),
modified HRS methods, and non-quantitative ranking systems. Tennessee, for example,
ranks sites according to the HRS. The Michigan Site Assessment Model (MSAS) differs
from HRS in various ways. MSAS measures potential exposure by direct contact, fire, or
explosion - factors not included in the HRS numerical score. The MSAS also assigns
points for drinking water affected by contamination if no permanent supply replaces it.
Because of the effort necessary for MSAS scoring, Michigan's practice is to do an initial
screening and fully score only those sites over a certain screening level.
Sites on Minnesota's Permanent List of Priorities (PLP) are ranked using the HRS,
with minor modifications that tailor it to Minnesota's specific conditions. Similarly,
Wisconsin has modified the HRS to take greater account of waste types, populated areas,
and the effects of rainfall on leachate.
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New York has recently developed a scoring system that combines three ranking
systems: the HRS, a State-developed Health Ranking Model (emphasizing human exposure),
and a State-developed Biothreat Ranking Model (emphasizing natural resource damages).
New Jersey uses a Severity Index, modeled after the HRS, to group sites into six "action"
categories. Montana uses a non-quantitative ranking system based on the following factors:
1) contamination of a drinking water supply, 2) air contamination that may pose a health
threat, 3) contamination of surface waters that provide recreation and drinking water, 4)
impacts on wildlife, and 5) danger of fire or explosion.
D. Program Organization
Administration of a State's program to clean up hazardous waste sites is invariably
centered in the State agency with primary responsibility for environmental matters. The
responsible agency's entire focus may be on environmental protection, as with New Jersey's
Department of Environmental Protection, or its duties may be broader, e.g., Colorado's
Department of Health. Table IJJ-4 lists the responsible agencies for the fifty States.
Of greater interest than the identity of the responsible agency are the methods by
which the States structure and staff their cleanup programs. Most States place their
cleanup personnel within the agency division responsible for waste management. The
organization of each State cleanup program is unique, however, and it is difficult to make
generalizations concerning program administration. Table ITJ-4 presents by name the
specific units within the State agencies that constitute the States' cleanup programs, as well
as their staff levels. The examples highlighted below represent some of the more
interesting organizational features the States are implementing.
Divisions Within Programs
Many cleanup programs are divided into several units, each with responsibility for a
different program element. In Maine, for example, the Uncontrolled Sites Program consists
of eleven (11) staff, split into three sections—administrative support and two site
management units. The administrative support section handles grants, policy review, and
development of the site ranking system, and is funded through the State's CORE grant
Site management units supervise sites from discovery through cost recovery.
Pennsylvania has a significantly larger staff (over 100 people) and a more
complicated program structure for dealing with site cleanup. Thirty (30) people are located
in the Department of Environmental Resource's (DER) Hazardous Sites Cleanup Program,
which has four sections: site assessment, Federally-funded cleanup, enforcement, and State-
funded cleanup. These headquarters staff are assisted by forty-two (42) technical personnel
in six regional offices. In addition, the DER's Bureau of Laboratories has seven (7)
positions for State Superfund work, and the Office of Engineering, which is responsible for
remedial action contracting, also provides seven (7) positions. The DER's Office of Chief
Counsel has fifteen (15) lawyers dedicated to the cleanup program. Finally, emergency
response is handled by a separate program within the DER~each of the six regions has a
separate emergency response team of six (6) to twelve (12) DER employees.
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Case Management Team
Several States report the use of case management teams. In New Jersey, for
example, a site will be assigned to a team consisting of a case manager, a technical
coordinator, and a groundwater advisor. There are separate teams for publicly-funded and
privately-funded sites, and a case may shift from team to team if its funding source
changes, as when an administrative consent order requiring private funding is signed.
Separate negotiation units engage in communication with responsible parties, and once a
site enters the remedial action phase, a separate construction team will assume oversight
responsibility.
Multiple Personnel Functions
A number of States report that an individual staff member may have duties under
both the cleanup program and another related State waste management program, such as a
RCRA-type program. Vermont has taken this approach one step further and has integrated
its RCRA, CERCLA, preremedial, and State list activities into one unit called the
Hazardous Sites Management Section. The Section's seven technical personnel spend at
least 40% of thek time on Federal CERCLA activities.
Intragency Activity
In many States, other divisions within the responsible agency provide support to
cleanup personnel. For example, air quality divisions often participate in cleanup activities
if air emissions are involved and water quality divisions are often consulted regarding
cleanup standards. Cleanup programs must also coordinate their activities with other
elements of the hazardous and solid waste programs.
Staffing Levels
Cleanup program staff levels vary greatly, from the 600-plus people in New Jersey's
Hazardous Waste Management Division (some with RCRA-type responsibilities), to the lack
of staff currently assigned to cleanup activities in South Dakota and Wyoming. Program
staff levels are indicated on Table IIt-4. Six (6) States have over 100 people working on
cleanup activities: California, Massachusetts, New Jersey, New York, Pennsylvania, and
Washington. These States all have very large numbers of confirmed or suspected sites;
Washington, with 700 sites on its State database, has the fewest number of sites. Only
three States have staff levels between 51 and 100 people: Florida, Minnesota, and Ohio.
Again, these States each have a great many sites, at least 500 confirmed or suspected. The
largest number of States (25) have between 11 and 50 personnel, while 15 States have 10
or fewer people assigned to their programs. One State has not indicated its staff level.
Figure III-3 presents the staffing distribution for the fifty States.
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PROGRAM STAFF LEVELS
Number of Personnel Number of States
Over 100 6
51-100 3
11-50 25
0-10 15
unknown
1
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 these personnel devote to cleanup activities. In Table ffl-4, the number of personnel
with split duties is indicated by a footnote, with the explanation that some portion of their
time is dedicated to Federal and State superfund work. Several States have more program
positions authorized than are currently filled. In Massachusetts, for example, 223 positions
are authorized within the Bureau of Waste Site Cleanup, but only 140 are filled; the State's
Department of Environmental Protection has a total of 519 superfund-related positions
authorized department-wide, but only 267 are currently funded.
At least nine (9) States plan to expand their programs, generally by several positions
over the next fiscal year. Connecticut's proposed expansion is notable—there is a bill
before the Legislature to add 17 positions to a staff of 16.
Interagency Activities
Most States report that the agency with primary responsibility for site cleanup relies
upon other units of State government for assistance. Often, the Attorney General's (AG's)
Office handles court actions, as discussed under Legal Support, below. At least sixteen
(16) States turn to their Departments of Health or equivalent agencies for assistance in risk
assessment or standard-setting. Where the Department of Natural Resources is not the
agency with primary responsibility for cleanup program administration, it is often consulted
regarding natural resources damages. Emergency response activities often involve the State
Department of Transportation. Montana has a separate abandoned mine cleanup program
proceeding under the administration of its Department of State Lands. Similarly, regional
Groundwater Management Districts in Kansas, under the administration of the Department
of Agriculture, have asserted jurisdiction over some remediation activities, as have Regional
Water Quality Control Boards in California.
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Legal Support
State Superfund programs obtain legal support from within their agency, from the
AG's Office, or from some combination of personnel from these two sources. Twenty-
three (23) States report that the State AG's Office is the sole source of legal support for
the cleanup program, while agency legal personnel provide the only support for ten (10)
State programs. Sixteen (16) States rely upon a combination of attorneys from both the
AG's Office and the responsible agency. Information concerning legal support is missing
for one (1) State. Table ni-4 presents sources of legal support for the fifty States.
Where legal support duties are split between the AG's Office and the agency
responsible for cleanup, the agency legal staff generally provides support on administrative
enforcement issues, such as review of administrative consent orders or assessment of
administrative penalties. When a case requires the initiation of a lawsuit, as in an action
for cost recovery, it is generally referred to the AG's Office.
Staffing levels for legal personnel do not vary greatly among the States. Of the
twenty-seven (27) States reporting staff levels at the AG's Office (11 States did not provide
information on the number of staff), twenty-five (25) have six or fewer full-time employees
working on cleanup cases. Colorado and New Jersey are the exceptions, with, respectively,
18 and 20 AG's Office staff devoted to cleanup cases. Twenty-two (22) States reported
agency legal staff levels; of these States, nineteen (19) devote eight or fewer full-time
employees to cleanup cases. Massachusetts has 15 people providing legal support on
cleanup cases; New York's Department of Environmental Conservation, Division of
Environmental Enforcement, has 14-16 staff; and the Chief Counsel's Office in
Pennsylvania's Department of Environmental Regulation has 20 cleanup-related legal
support staff.
Funding Sources
There are three basic sources of funding for State program administrative and
personnel costs—State cleanup funds, State general funds, and Federal grants. The funding
sources used by the fifty States are presented in Table III-5. Forty-six (46) States fund
their program staffs through a combination of Federal grants and State monies. State
funding is obtained only through general fund appropriations in twenty-two (22) of these
States, while fifteen (15) States rely only upon their separate site cleanup funds for the
State share of administrative and personnel costs. Eight (8) States use a combination of
general fund appropriations and cleanup fund monies to pay staff and administrative costs,
and one (1) State, Iowa, obtains funding through its Oil Overcharge Fund. A few States
have incidental funding sources, indicated under the "Other" heading on Table ffl-5; of
note are Mississippi's Cooperative Agreements with responsible parties.
Four (4) States-Arkansas, Delaware, Nebraska and Oklahoma-rely solely upon
Federal funding to support their cleanup programs. These four Federally-supported
programs are all relatively small, however, the largest being Delaware's staff of 16.
16
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Table ni-6 presents the various Federal CERCLA grants available to the States-
Cooperative Agreements (CAs), Multi-Site Cooperative Agreements (MSCAs), Management
Assistance grants (MAs), and CORE grants—and indicates which States receive funds
through these grant mechanisms. A CA enables the use of Federal funds for site-specific
activities at a State-lead NPL site. An MSCA is a similar funding mechanism which
covers site-specific activities at a number of sites, generally sites in close proximity to one
another. An MA grant provides funding to States with limited cleanup staffs to enable
them to provide oversight assistance on EPA-lead sites. CORE grants are available to fund
non-site-specific program administration activities, such as database maintenance.
Forty-four (44) States report having CAs, 41 have CORE grants, 34 have MAs, and
19 have MSCAs. Only two (2) States, Georgia and Nevada, report receiving no funds
through these grant mechanisms. These two States, however, receive Federal funds for
cleanup program administration through other programs, such as RCRA grants.
FEDERAL CERCLA ASSISTANCE
CAs MSCAs
44 19
MAs CORE Grants
34 41
Only a few States have provided specific information on the precise staffing and
administrative costs covered by these Federal funds. Where available, these are indicated
on Table III-5.
States with Superfund Memoranda of Agreement (SMOAs) are also indicated on
Table in-6 and Figure in-4. A SMOA documents the agreed-upon relationship between
the EPA and a State as regards Superfund activities. It can cover issues such as review
times, sharing of documents, and site-lead responsibilities. SMOA terms range from very
broad to very specific. Ten (10) States currently have signed SMOAs, six (6) have draft
SMOAs, and fifteen (15) States are negotiating with EPA over SMOA terms. Two (2) of
the States with SMOAs, South Carolina and Wisconsin, are in the process of renegotiating
their agreements.
E. Funding
A fund or funding mechanism is an essential element of a State's hazardous waste
cleanup program. It allows a State to investigate, plan, and conduct emergency response
and remedial actions at sites where there are no viable RPs, RPs are unwilling to conduct
or pay for remedial actions, or immediate action is required. Typically, a fund is
characterized by both depleting and revolving expenditures. If there are no RPs, the fund
is depleted as a result of cleanup activities and must be replenished. There may also be
certain types of expenditures that the State is not authorized to recover from RPs, such as
administrative (see Section D above) and certain pre-remedial costs. If RPs refuse to
18
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cooperate on cleanups or a State elects to use the fund for emergency response or
investigations, the State typically will attempt to recover these fund expenditures from RPs.
A fund also allows a State to control the pace of cleanups: if RPs fail to cooperate,
the State can proceed with the cleanup and may be authorized to seek punitive damages
from RPs in addition to recovering costs expended from the fund. Thus, depending on its
size and latitude of use, a fund can enhance a State's enforcement effort and ability to
compel RPs to conduct or pay for cleanups.
State funds are authorized and/or used in forty-eight (48) States for one or more
uses relating to mitigation of hazardous waste risks (see Table ni-7). Not all State funds
or accounts are included in Table ffl-7. Those funding instruments that are used solely as
repositories for Federal monies or only provide debt servicing on bonds are excluded.
However, these accounts and funds are highlighted in the State summaries in Chapter IV.
Fifteen States have more than one fund or account for handling hazardous waste site
cleanups. In most cases a State's funds will differ from each other with regard to sources
or uses. For example, one fund may derive primarily from hazardous waste fees, while
another in the same State receives legislative appropriations. In New Jersey, the Hazardous
Discharge Site Cleanup Fund, derived from appropriations and bonds, may be used for the
same purposes as the Spill Compensation Fund, which is funded primarily from penalties
and taxes; however, the latter fund is the first to be tapped for cleanups.
The only States without funds are Nebraska and Delaware. Delaware currently
relies on annual appropriations and has pending legislation that would create a State
superfund. Nebraska also has pending legislation that would create a State fund. There is
considerable variation among the States in terms of funding sources, authorized uses of
funds, and restrictions or preconditions on the use of funds. State fund characteristics are
described in Tables ni-7 and ffl-8. A synthesis of State trends in funding is presented
below.
Fund Balances and Additions
In looking at fund balances and additions, one would hope to get a sense of the
States' capacities to fund cleanups. The fund balance measures the current availability of
funds while estimated additions to the fund provides a sense of a State's potential to
sustain and increase the fund over time. Both measures of capacity are flawed, particularly
when comparisons are made across States. Some of the problems:
1. The available information from States does not show up-to-date balances for all
funds-dates range between January 1988 and August 1989.
2. Fund balances may be low because of infrequent collection of fees or taxes
(causing the fund to pulse), timing of appropriations, or a program's need to exhaust
its fund at the end of the fiscal year because carryover is not allowed.
19
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3. A distinction should be drawn between authorizations and appropriations.
Authorization may provide a better sense of capacity, with appropriations made on
an "as needed" basis. For example, Oregon has established an Orphan Site
Account. If the need to expend monies in this account can be justified, three
funding mechanisms are triggered and can potentially generate up to $3 million per
year. However, the balance of the account is $0 until needed.
4. Fund balances may also be misleading because some portion of a fund may be
encumbered (e.g., CERCLA cost share) and thus there is actually a smaller amount
of funds available.
With these caveats in mind, we may note that the total State "superfund" balance for all 50
States is approximately $415 million, with an additional $1,981 million authorized in bonds
in four (4) States. The distribution of funds is heavily weighted towards lower levels of
funding: including bonds, 18 States have less than $1 million, 18 States have between $1
million and $5 million, 3 States have between $5 million and $10 million, and 11 States
have more than $10 million (see Figure ni-5). The total amount of funds available to the
9 States with fund balances over $10 million (excluding bonds) is $323.3 million, an
amount that comprises more than 78% of the total State "superfund" balance. The total
amount of funds available for the eleven States with fund balances over $10 million
(including bonds) is $2,312 million or 96%.
Sources of Funds
Table III-7 indicates the sources for State funds or funding mechanisms and whether
each is a major or minor source. There are nine (9) general types of sources: legislative
appropriations, State bonds, fees attached to hazardous waste handling or other activities,
taxes, penalties or fines, transfers from other funds or accounts, cost recoveries, interest on
fund monies or other State investments, and general public or private funds. It should be
noted that information on the relative contribution of each source was not available for all
funds, and in such cases the table does not indicate any one source as being major
(contributing more than twenty percent of the fund's total revenues). The table shows a
source as major only when there is positive evidence to support that description; lacking
such evidence, a source is shown as minor. This qualification should be heeded in the
discussion that follows.
A total of 66 funds or funding mechanisms for handling cleanup of hazardous waste
sites were identified among the States (15 States have more than one fund or account). As
noted previously, this number does not include funds that receive only Federal monies or
provide only debt servicing on bonds; funds earmarked for leaking underground storage
tanks are also excluded. The chart below shows the number of funds or funding
mechanisms that rely on each of the nine types of sources described above, either as a
major or minor source. The chart also shows the number of States that use each type of
source.
20
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SOURCES OF FUNDS
Maior Source For: Minor Source For:
Appropriations
Fees
Bonds
Penalties/fines
Taxes
Cost recovery
Transfers
Interest
General funding
No. of No. of
Funds States
20 19
20 19
13 12
12 11
10 9
6 6
4 4
1 1
—
No. of No. of
Funds States
17 17
3 3
—
29 27
1 1
45 41
6 6
16 15
11 10
Appropriations are a primary source of State cleanup funds or funding mechanisms.
Twenty in 19 States derive a major portion of revenue from appropriations (Washington
supports a major portion of both its State and its Local Toxics Control Accounts with
appropriations), and an additional 17 States provide some level of appropriations for their
cleanup funds. The manner in which funds are appropriated by State legislatures indicates
the flexibility with which a State can handle hazardous waste cleanups. Many States
allocate funds to their superfund programs on a regular, typically annual, basis. In some
States, however, appropriations for state-fund cleanups must be requested on a site-specific
basis. Such is the -case in Kansas, which has a fund, and in Delaware, which does not yet
have a fund and depends upon legislative appropriations to support emergency response
actions.
Fees on the generation, transport, treatment, or disposal of hazardous waste,
hazardous substances, or solid waste are a critical source of revenue for many State funds.
They represent a major portion of 20 funds hi 19 States, and a minor portion of three (3)
funds in another three States. Besides providing revenue for State funds, fees on hazardous
waste are often intended to reduce the hazardous waste stream and encourage recycling
efforts. For example, fees on the transport and disposal of hazardous waste make up 90%
of Illinois' Hazardous Waste Fund; these fees will be raised each year between FY 1989
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and 1991 to increase the Fund and discourage hazardous waste generation. In Iowa,
transport fees alone comprised 97% of the State Fund in FY 1988. In Kentucky, fees are
based on the level of treatment required for hazardous wastes; a sliding scale is also
applied on solid waste disposal in Ohio, where such fees are expected to provide 80% of
total funds. Wisconsin, which collects a fee from solid and hazardous waste generators of
$0.30 per ton (except for high-volume wastes), is considering a proposal by the Governor
to impose a fee of $5.00 per ton on non-recycled hazardous waste. South Carolina charges
a land disposal fee of $5.00 per ton for hazardous wastes originating within the State, and
a minimum of $7.50 for wastes generated outside the State, as well as a hazardous waste
storage fee; these fees provide 80-90% of fund revenues.
Considering that such fees represent a substantial portion of many State funds, it is
worthwhile noting the limits that are often attached to them. Fund administrators in South
Carolina must report to the legislature on the need for continuing fee collection once the
fund balance reaches $7.5 million. Iowa and Kentucky both suspend fee collection if the
fund balance exceeds $6 million and resume collection if the balance falls below $3
million; West Virginia suspends fees whenever the year-end balance exceeds $1.5 million
and reinstates fees when the balance reaches $1 million; similarly, Illinois uses a range of
$10 million and $3 million on unobligated funds in suspending and resuming fee collection.
In Tennessee, a public board sets a hazardous waste fee structure for generators and
transporters within a statutory minimum and maximum in order to encourage recycling and
discourage land disposal. This fee structure is adjusted annually to maintain a balance of
$3-5 million in unobligated funds, but the level of estimated fees must not exceed $1
million per fiscal year, moreover, the fees are abrogated if the legislature fails to
appropriate matching funds. Beyond the matters of equitable or adequate fee levels, fee
revenues may fluctuate due to changes in hazardous waste handling. Increasingly
restrictive land disposal practices have steadily diminished the land disposal fees collected
in Missouri; treatment and disposal fees have declined over the last three years in Iowa as
well.
Taxes are a major revenue source for ten (10) cleanup funds in nine (9) States.
Several States charge a tax on hazardous wastes or substances that is similar in nature to
the fees described above, with some of the same types of restrictions. For instance,
Florida's main source of revenue for its Water Quality Assurance Trust Fund is a tax on
pollutants of $0.02/bbl; the tax is suspended if the Fund's balance exceeds $12 million.
Missouri's fund is derived from taxes on hazardous waste generators based on tonnage and
method of waste handling; the tax is not to exceed $50,000 per company per year. In
Washington a tax on the wholesale value of hazardous substances funds both the State and
Local Toxics Control Accounts. The main source of revenue for New Jersey's Spill
Compensation Fund is a transfer tax on hazardous substances, which is expected to
contribute $21.9 million to the Fund in FY 1989. Pennsylvania's $30 million capital stock
and franchise tax dedicated to the Fund is suspended in any year after 1992 in which the
Fund balance exceeds the previous year's obligations and expenditures.
While a number of funds have restrictions placed on fee or tax collection, the
primary cleanup funds in 32 States do not have a cap or other restriction placed on the
fund balance.
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Bonds are the major source of funding for 13 funds in 12 States. Four (4) of
these States-New York, New Jersey, Massachusetts, and Michigan-have been authorized to
issue a total of $1,981 million in bonds. In New York, some of the $1,200 million in
authorized bonds will start to be issued when the State's fund is depleted. New Jersey's
Hazardous Discharge Site Cleanup Fund has $300 million in approved bond issues, an
amount almost four times its current balance (and twice as large as the combined balance
of New Jersey's two funds). Massachusetts has spent $28.6 million out of $85 million in
authorized bonds. Michigan's recent approval of a $425 million bond issue is significantly
expanding the State's cleanup program.
Penalties and fines provide a major source of revenue for twelve (12) States, and
cost recoveries provide a major source for six (6). Each category appears as a minor
source for many funds and States (see chart above). These numbers do not accurately
reflect the actual use of penalties/fines or cost recovery since many States do not use their
statutory authority to pursue these sources, often because of limited resources.
Uses of Funds
Table IU-8 indicates the uses of State cleanup funds. There are ten (10) types of
activities for which fund monies may be used: remedial actions, CERCLA match, disposal
at or development of hazardous waste facilities, emergency response, grants to
municipalities and local governments, site investigation, operations and maintenance,
removals, studies and design, and victim compensation. The following chart shows the
number of funds whose monies are or may be applied to each activity, and the number of
States having at least one fund whose monies are or may be applied to each activity.
USES
Emergency response
Removals
Studies and design
Remedial actions
CERCLA match
Operation and maintenance
Victim compensation
Site investigation
Disposal at or development of
hazardous waste facilities
Grants to municipalities and
local governments
OF FUNDS
No. of States
47
46
42
41
41
36
11
8
4
3
No. of funds
55
51
47
41
47
40
11
8
4
3
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Emergency response actions are the most common activity for which funds monies are
authorized~55 funds in 47 States may be used for this purpose. Removals, as part of both
emergency and remedial actions, are also widely authorized. Studies and design for
remedial action are more frequently authorized than remedial actions, most likely because
of the limited resources of many States to undertake remedial actions independently.
Victim compensation is authorized in 11 States. The nature of compensation is
limited to providing alternative drinking water supplies, except in five (5) States: New
Jersey, Minnesota, California, Rhode Island, and Vermont (see Table III-2). In New
Jersey, anyone can file a claim for personal or property damages resulting from a
hazardous discharge, within a one-year statute of limitation from the date of discovery of
damage. The State must attempt to arrange a settlement between the claimant and the
responsible party, but if the source of the discharge cannot be determined, the State must
settle the claim against the Spill Compensation Fund. Minnesota may compensate innocent
landowners for part of cleanup costs. California has a Hazardous Substance Victim's
Compensation Fund intended to provide compensation for medical and economic damages
caused by the release of hazardous substances when a responsible party cannot be
determined. With funds yet to be appropriated to this Fund, the three claims made to date
have been paid out of the Hazardous Substance Account
Several funds are not designated strictly or even primarily for use on hazardous
waste sites. For example, Kansas' Hazardous Waste Perpetual Care Trust Fund is intended
primarily for RCRA activities, but up to 20% of the Fund can be used for emergency
response actions at hazardous waste disposal facilities closed prior to the State's 1981
hazardous waste act. Virginia's fund is intended for solid as well as hazardous waste
incidents.
Although many funds are statutorily authorized for use in a range of activities, low
funding levels may restrict actual usage of monies. Kentucky's fund was intended for use
on virtually every aspect of hazardous site cleanup and management, but, because of low
funding levels, has been used mainly for CERCLA matching funds. Utah allows a range
of site activities, including site investigation and studies and design, but does not allow
remediation.
Despite its name, Pennsylvania's Hazardous Sites Cleanup Fund is used for a broad
range of activities beyond that of site cleanup. Fund monies may be used to encourage
recycling activities through a recycling grant program for which $2 million has been set
aside. Demonstration grants for alternatives to hazardous waste land disposal can also
receive funding. Private party cleanups are facilitated through a $100,000 loan fund, and
the State also can supply loans or grants as inducements and compensation to
municipalities where hazardous waste facilities will be located.
Washington's State Toxics Control Account also funds a number of activities besides
hazardous waste site cleanup, including hazardous and solid waste planning, management,
regulation, enforcement, technical assistance, and public education.
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In Oregon, recent legislation created a financial assistance program that enables the
program to provide loans to RPs to undertake cleanup activities. The interest rate and
other terms of the loan are negotiated by the RPs and the Department of Environmental
Quality.
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. Eight (8)
States restrict fund expenditures in some respect to Federal Superfund activities. New
Hampshire allows funds to be expended only if projects do not qualify for CERCLA
assistance; in Alabama, sites receiving funds must not be on the NPL at the time activity
starts; and in general, State funds may only be used where Federal funds are not available
or sufficient. Sixteen (16) States require that an attempt be made to obtain responsible
party cooperation on site cleanup before State funds are used; many States waive this
restriction in the presence of imminent threat to public health or the environment
Although it appears that only a relatively small number of States seek alternative fund
sources before using State monies, it is safe to assume that this is a far more widespread
policy among States.
Eleven States require that the State agency responsible for cleanup obtain prior
authorization 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. A cap on non-emergency expenditures is the rule in Vermont, where expenditures
over $50,000 must be legislatively approved; similarly, Arkansas requires a commission to
approve expenditures over $30,000. In Wisconsin, expenditures on remedial action are
subject to prior administrative hearing and judicial review. Washington requires that any
expenditure from its State or Local Toxics Control Account first be appropriated by statute.
Several States set a limit on the amount that may be spent on individual sites.
Connecticut limits CERCLA matching funds to $5 million per site. Illinois has a $1
million cap on per-site expenditures without specific appropriations, but according to
program officials this cap has not affected the program's effectiveness.
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. Enforcement
Enforcement authorities and capacities under State laws vary significantly. Many of
the States with cleanup fund laws have incorporated enforcement provisions into those
laws. Thirty-seven (37) States have enforcement authorities related to enforcement of their
26
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superfund programs. Many of these States also use other enforcement authorities in
dealing with these sites, such as water quality and hazardous and solid waste authorities.
The remaining thirteen (13) States have no enforcement provisions directly linked to
State superfund programs, either because they have no such program independent of
CERCLA (e.g., Idaho and Oklahoma), or because the Fund statute was enacted without
supporting enforcement provisions (e.g., Michigan). These States must rely on RCRA-type
authorities, or on enforcement authorities found in water quality or solid waste statutes and
regulations, as indicated in Table HI-2.
Liability Standards
A key issue for State superfund programs is whether State enforcement authorities
can reach responsible parties to the same extent that CERCLA can. Owners and operators
can be reached under virtually any of the existing State programs. A more problematical
question is whether cleanup orders can be issued to generators and transporters who
engaged in disposal that may have been lawful at the time it occurred.
The thirteen States that rely on non-"superfund" authorities cannot always reach such
potential RPs. For the most part, State cleanup orders issued under RCRA-type laws
require proof of a RCRA violation or, at the least, RCRA jurisdiction over the facility or
entity at the time the disposal occurred. This means that, in contrast to CERCLA liability,
under these authorities the mere release of hazardous substances at a site does not support
enforcement against former lawful disposers at that site. However, some State solid waste
laws or "imminent danger" provisions have a potentially longer reach. In some instances,
the State water quality law may provide a basis for enforcement action against generators
and transporters: most State water quality laws have a strict liability provision prohibiting
discharges of any pollutant into "the waters of the State" without a permit Unlike the
Federal Clean Water Act, however, most States define "waters of the State" to include
groundwater. (See Novick, Stever, & Mellon, Environmental Law Institute, The Law of
Environmental Protection, section 6.03[l][a] (Clark Boardman, 1989)). Thus, some of the
thirteen States without specific superfund enforcement laws have limited ability to reach
RPs other than owners and operators. Indeed, one such State, New Mexico, maintains that
its enforcement authorities allow the program to reach all such parties.
Of the thirty-seven States whose superfund programs include enforcement provisions,
most have the ability to reach generators and transporters. There is generally no need for
these States to show the existence of a violation of law.
Rather, for these States the issue is the scope of liability. There are two aspects to
the question of liability. First, is the standard strict-that is, based solely on the occurrence
of a release or potential release-or is it based on fault? Second, is liability "joint and
several," with each RP responsible for the entire cleanup regardless of its contribution to
the problem, or is it proportional, with each liable only to the extent of its contribution?
Under CERCLA the Federal standard is strict, joint and several liability. This is not the
case with many of the States.
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With strict liability, a responsible party who has contributed to hazardous conditions
at a site is liable for the actual or potential damages posed by the hazards regardless of
fault. Liability standards other than strict require a greater burden of proof to be satisfied
by the State, such as proof of negligence or intent Standards dependent upon fault
effectively limit the universe of parties to whom liability may attach. This, in turn, is
likely to reduce the effectiveness of the enforcement program in comparison with a strict
liability program.
Twenty-eight (28) States have a strict liability standard prescribed by statute (see
Table ffl-9). Several other States in which the statute is silent interpret their liability
standard as strict (e.g., Oregon and Ohio), although there are few court decisions in such
States. In a significant number of States, however, the standard of liability is not clear:
proof of fault or causation may be required in order to sustain enforcement orders or cost
recovery. At common law, strict liability is not favored, so courts may interpret legislative
silence or statutory ambiguity as requiring the agency to show causation and fault. For
example, statutes that attach liability to "any person responsible for a release or threatened
release" may require proof of causation and fault not required by a strict liability standard.
Another important question is how responsibility should be divided among
responsible parties who have contributed to hazardous conditions at a site. Under a "joint
and several" liability standard, each RP is liable for all cleanup costs at a site regardless of
its actual contribution to hazardous conditions there. Twenty-three (23) States use this
standard (see Table ni-9). A significant number of these States assert joint and several
liability as a matter of legislative intent, although this standard is not articulated in the
statute (e.g., Oregon, Iowa, and Ohio). The CERCLA joint and several liability standard
was likewise asserted and upheld in litigation, and was not a product of legislative
articulation.
What is perhaps more interesting is the number of States (14) that have some form
of "proportional" liability. In these States, the liability for cleaning up the site (or for
contributing to the government's cleanup costs) is limited to some share of the total
liability based on waste volumes, toxicity, or culpability. In general, the proportional
liability statutes do not prescribe the basis for the apportionment, only that it be made.
(An exception is Arkansas, which bases proportionality on the volume of waste contributed
to the site.)
Proportional liability schemes among the States fall into two general categories.
First, there are approximately five (5) States that expressly establish a proportional system
(see Table ni-9). Their laws reject the approach of joint and several liability as essentially
unfair to RPs, and thus limit liability from the outset. This group includes California, as
well as smaller States like Alabama, Tennessee, Utah, and Arkansas. The second group of
States has laws that begin with a presumption of joint and several liability, but allow RPs
to overcome that presumption by proving their "divisible" or proportional contributions,
typically applying a "preponderance of the evidence" standard. This second group includes
Texas, Massachusetts, Vermont, Minnesota, Louisiana, and Montana. Both versions of
proportional liability increase the probability that there will be "orphan" shares of cleanup
costs which must ultimately be borne by the State. In addition, to the extent that
28
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proportional liability is applied to enforcement orders to conduct studies or remedial action,
it may make such enforcement more difficult.
Several other standards of liability exist, including those that leave the matter to
common law or other defenses, as in New York.
Order Authorities
All of the thirty-seven (37) States that have enforcement authorities associated with
their cleanup programs for hazardous waste sites have the power to issue administrative
orders compelling responsible parties to conduct cleanup activities. The majority of these
States also have order authority to require responsible parties to provide information and to
conduct studies. Even those States that do not have explicit order authority to obtain
information usually assert that their authority for cleanup orders or their procedural laws
give them power to require this (e.g., Virginia and Maryland). A few States believe that
they lack such authority (e.g., Florida and Indiana prior to a 1989 amendment). Virtually
all of these thirty-seven States also have express authority for site access, both to evaluate
sites and to conduct cleanups.
The other thirteen (13) States rely on RCRA-type, solid waste, or water quality
orders. These, as noted above, do not apply in all circumstances or to all potentially
responsible parties. Of these States, only Idaho lacks such order authority altogether and
must resort to injunction actions in court.
The fact that a cleanup order may be issued by a State, however, is only partially
informative. State cleanup orders are by no means always identical to CERCLA section
106 orders, which provide for no pre-enforcement review. Nor are they always subject to
the same deferential standard of review (in the event of enforcement of the order, or in the
case of cost recovery and punitive damage suits). For example, in many of the States a
responsible party receiving an order has the right to seek review of that order before a
board, commission, or court In Illinois, the State agency must file a complaint seeking an
order from the Pollution Control Board in an adversary action at which the responsible
party may litigate any issues. In other States, such as Virginia and Kentucky, an order
may be issued only after a hearing or opportunity for hearing. In Arizona, the recipient of
an order may seek administrative review. In Pennsylvania, one type of cleanup order is
reviewable before the State's environmental hearing board, while another type of cleanup
order is not subject to pre-enforcement review; the State has the option to select either
order. In Texas, the recipient of an order may appeal it to court; however, a deferential
standard of review is applied. Other States, like Tennessee and Oregon, do not allow pre-
enforcement review. In a significant number of States the availability of pre-enforcement
review has never been determined because all sites have been handled by consent order.
The standard of review is also important Several of the States expressly apply a
deferential standard of review. For example, in Pennsylvania (under one of the two
Pennsylvania order types) the agency action must be upheld unless it is "arbitrary and
capricious." In Texas, the State must prove on appeal that there is an imminent and
substantial endangerment and that the recipient of the order is liable. However, if the
"appropriateness" of the remedy is contested on appeal, the remedy must be upheld unless
29
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the court finds it to be "arbitrary and capricious." In most States, however, no standard of
review is spelled out by statute.
Injunction Authorities
All of the States with order authorities also have authority to bring judicial enforce-
ment actions to obtain an injunction, to enforce an administrative order, or both.
Enforcement Sanctions
The primary "enforcement" tool under any of the State cleanup programs is the
ability to expend the State Fund and conduct cost recovery. This is reported by most
States with programs as the driving force behind most "voluntary" cleanups and consent
agreements. The real force of this incentive, however, depends upon the credibility of the
State's ability to spend Fund monies. The enforcement leverage of the Fund is minimal to
non-existent in those States where the Fund may only be expended for the State share of
NPL site expenditures or for emergency response, where it may be expended on State sites
only after a lengthy and laborious listing process, or where it may only be expended
pursuant to site-specific authorization by the legislature. By contrast, in States where
expenditures can be authorized and made relatively quickly~as in New Jersey and
Minnesota, for example—the State Fund cost-recovery option produces substantial enforce-
ment success.
The effect of the Fund cost-recovery threat is enhanced in those States that have a
punitive damages provision. These provisions have become increasingly common and now
exist in twenty-two (22) States. Seventeen (17) of these States provide for the award of
treble damages, as under CERCLA. Other States provide for damages of one-and-a-half
times or twice the response costs. Maine simply provides for punitive damages without
specifying an amount (Table in-10).
The 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 provision requires "willful" failure to comply. The New Jersey courts have
created a "good faith" defense to such damages. Other State laws have other, similar
provisions.
Civil penalties exist in virtually all of the State enforcement laws as well. These
appear to be less important in influencing behavior and are not often assessed. Given the
cleanup function of superfund programs, the penalties typically apply to failure to comply
with an order. Penalties range from $1,000 per day (Iowa) to $50,000 per day (Louisiana
and New Jersey).
Criminal penalties are not really a factor in most State programs. Virtually all of
the programs contain provisions making the submission of false information or failure to
pay fees (in States where Funds are derived from fees) criminal offenses. In general the
failure to comply with a State cleanup order is not a criminal offense. A wide range of
criminal offenses does exist for unlawful disposal and other types of conduct. Some of
these crimes may have relevance to State superfund sites. (See McElfish, "State Hazardous
30
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Waste Crimes," 17 Envtl. Law Rep. 10465 (1987) for a comprehensive list of these crimes
and sanctions.)
Victim Compensation Provisions
Victim compensation provisions are relatively rare in State superfund statutes.
While California, New Jersey, and Minnesota have provisions for compensating victims of
hazardous substance contamination, most States do not (see Table III-2). A number of
States do, however, have express provisions for furnishing alternative water supplies or
providing reimbursement for the cost of such supplies in the event of contamination from a
site.
Other Enforcement Provisions
A number of States have made explicit provisions in their laws for the recovery of
natural resource damages. These provisions apply in addition to the CERCLA natural
resource damage provisions. Few States have litigated such actions under State provisions.
Colorado has the most experience in litigating natural resource damage cases under
CERCLA, and has achieved substantial settlements at three sites. One difficult issue in
recovery of natural resource damages is the proper method of calculation. The
Pennsylvania statute contains a provision that makes the State's calculation of such damages
presumptively valid as a matter of law, subject to the responsible parties' having the
opportunity to offer a rebuttal.
New Jersey, Connecticut, and Illinois have enacted property transfer laws that
require industrial facilities to certify cleanup in order to transfer or close the facility. The
most comprehensive of these is New Jersey's Environmental Cleanup Responsibility Act
(ECRA), which requires industrial facilities to obtain a "negative declaration," to complete
a cleanup, or to have signed a consent order assuring cleanup before the transfer or closure
occurs. Connecticut and Illinois have somewhat less stringent laws of the same sort. Iowa
requires State approval of transactions involving property listed on the State registry of
sites. Minnesota has established an informational program through which industrial,
commercial, or residential interests contemplating a real estate transaction may contact the
State to determine whether or not a cleanup is needed at a facility or if the property is
situated near an identified site. The object of the program is to promote "voluntary"
cleanups at the behest of lenders and other parties to commercial transactions.
A few States have enacted favorable presumptions and rules of decision to aid in
hazardous site cleanups and enforcement. One of the better examples of such measures is
Pennsylvania's statute, which contains a provision that if contamination is found within
2500 feet of a site, it is presumed as a matter of law that the responsible parties for that
site are liable for the contamination. This limits the State's burden of proof where
contamination pathways may be obscure or complex, and shifts the burden to the
responsible parties to disprove the link.
Evaluating Enforceability of Programs
It is difficult to evaluate the enforcement component of any program. Both strong
and weak programs should produce a significant number of "voluntary" settlements and
31
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consent orders. The only difference will be in the quality of the remedial action agreed
to-a difficult thing to assess except on a detailed site-by-site basis. The best surrogate for
that sort of review is to ascertain whether each State has available to it sufficient tools for
enforcement that allow it to exert significant and credible cleanup leverage. State programs
can be weakened if they have numerous procedural "hoops" to pass through before
effective enforcement—for example, mandatory negotiating periods during which there is a
moratorium on enforcement actions or State expenditures. Likewise, rules of decision that
encourage RP litigation or delay are counterproductive, such as provisions that allow the
RP to conduct a trial on the selection of remedy, or that afford no deference to the action
selected by the State agency based on the administrative record.
The stronger programs also appear to make significant use of the credible threat of
Fund-lead actions if negotiating deadlines are not met by RPs. If this is backed up by a
punitive damages provision, the program may achieve greater success.
Nothing definitive can be said in this study about the efficacy of "proportional"
liability schemes. Joint and several liability makes the State's burden of proof much
simpler, however. In addition, it may provide a greater likelihood that full recovery of
costs can be made. Under a proportional liability scheme, the State may be unable to
recover a significant portion of cleanup costs, as might occur if the largest proportional
contributors were the least solvent financially. State programs without strict liability are
even more problematic—the task of proving fault or culpability for a release (particularly in
the case of a generator or transporter) may be quite difficult.
State programs with sufficient enforcement options, favorable presumptions, a strict
liability standard, and the ability to resort credibly to the State fund appear to have the
greatest potential for enforcement success.
G. Cleanup Policies and Criteria
Cleanup policies and criteria are key elements of State superfund programs. Most
importantly to the public, they are used to establish the cleanup goals at sites and
determine the level of environmental and health risk reductions to be achieved by the
remedial action. However, as the stringency of cleanup goals increases, the costs of
mitigating site risks also increase; State superfund programs face greater challenges in
effecting private cleanups and, when enforcement efforts fail or there are no RPs, a greater
proportion of the State's fund will be needed for remediation.
Determining the appropriate and feasible level of cleanup for a hazardous waste site
involves technical, administrative, and economic considerations that are necessarily
evaluated on a site-by-site basis. States commonly look to Federal guidelines and standards
as they decide upon cleanup levels. Beyond such guidelines, several States have
established procedures to determine the particular cleanup standards that are necessary for
individual sites, and many have requirements that exceed Federal standards. Overall the
States vary widely in the extensiveness and formality of procedures used to set site-specific
cleanup standards.
32
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Table III-11 indicates a number of criteria that are used by States to determine
cleanup standards at hazardous waste sites. Approximately one-quarter of States did not
report specific policy guidelines for determining cleanup levels, although five (5) of these
States are currently developing guidelines. Several States cited general statutory instruc-
tions that parallel CERCLA's original guidance on cleanup standards, calling for cost-
effective measures that protect public health and welfare and the environment. Only two
(2) States, Louisiana and Massachusetts, noted a more stringent goal established for NPL
sites by SARA-the selection of long-term or permanent remedies. In Louisiana the
Department of Environmental Quality regards permanent solutions as a policy goal. In
Massachusetts a goal of permanent solutions wherever feasible is incorporated into law as
part of general statutory guidance on cleanup and design standards; temporary remedial
measures are defined by a specific time frame, a minimum effectiveness of fifteen years.
Federal Standards
Twenty-two (22) States use EPA guidelines or Federal standards either as their sole
source of cleanup standards or in conjunction with other standards. Standards found in
RCRA and CERCLA were specifically cited as relevant, and several States follow NCP
procedures. Six (6) of the twenty-two States use Maximum Contaminant Levels (MCLs)
set by the Safe Drinking Water Act as minimum standards for surface and groundwater
remediation. (The total may in fact be seven—although Pennsylvania's program staff did
not mention MCLs in their description of cleanup standards, State law incorporates the
provisions of SARA §121, which includes the attainment of MCL goals.)
State ARARs
Eighteen (18) States have established their own ARARs or standards of cleanup for
water, soil, or air. Michigan prohibits the presence of any detectable level of volatile
organic chemicals. Groundwater is a particular area of concern in a number of States. In
California, the potential effect of remedial action on groundwater must be specifically
evaluated. Minnesota is developing guidelines for determining site-specific groundwater
cleanup goals that will be consistent with the State groundwater protection strategy. In
addition to setting a minimum cleanup level, groundwater standards in Vermont may also
trigger remedial action at a site. Although Connecticut does not have specific requirements
for groundwater remediation, information drawn from their statewide groundwater classifica-
tion system is the most important factor in determining site cleanup. New Jersey has
established ARARs for soil, and Vermont has soil standards under development Wisconsin
does not have formal ARARs for soil contamination, but follows department-wide
guidelines.
STATE ARARs
Category
Water
Groundwater
Air
Unspecified
No. of States
2
7
1
9
33
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Risk Standards and Assessments
Risk standards in the range of 10"5 to 10"7 for carcinogens are used by seven (7)
States and have been proposed by an eighth. A risk standard is applied in either of two
circumstances: as an alternative standard to be used when MCLs or ARARs do not exist,
or as a standard to be achieved at each cleanup.
Arizona, Indiana, and Minnesota invoke risk standards only in the absence of
applicable standards. In Minnesota, where health-based limits have been established on
many chemicals, a risk standard of 10~s is binding only for situations with no applicable
State or Federal ARAR; moreover, a non-degradation policy prohibits sites that are cleaner
than the risk standard from being degraded to that level.
California, Virginia, Maine, and Ohio have risk standards that apply generally. In
addition to a risk standard for carcinogens, Ohio limits the risk for non-carcinogens to less
than one excess occurrence, and Maine restricts toxicity levels. Michigan is developing a
cleanup standards policy that sets the risk of cancer at 10"6 for multiple carcinogens and
10~7 for single carcinogens.
Site-by-site risk assessments are performed by seven (7) States to help determine
cleanup levels. Like risk standards, risk assessments may be used either routinely or in the
absence of other standards. Alabama, Florida, Kentucky, and New Jersey weigh the results
of site-specific risk assessments along with other applicable standards to determine cleanup
levels at each site. By contrast, Mississippi, Wisconsin, and Massachusetts undertake risk
assessments only when an appropriate standard does not exist for a particular situation.
Massachusetts has well-defined procedures for determining cleanup levels when no
applicable standards apply: in such a case, site-specific health-based standards for
contaminants are generated based on the scientific literature and on risk assessments, and
are used as guidelines by the State. If RPs are doing the cleanup work, they must provide
risk assessments for approval by the State.
RISK STANDARDS AND ASSESSMENTS
Circumstances of Use No. of States
Risk standards applied at all sites 4 (1 proposed)
Risk standard used absent other standards 3
Risk assessment performed at all sites 4
Risk assessment used absent other standards 3
34
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Ambient Quality
Five (5) States use ambient quality as the cleanup standard: Florida, Kentucky,
Oregon, Pennsylvania, and South Carolina (which also specifies drinking water standards as
an alternative baseline). Although Kentucky, Pennsylvania, and Oregon regard ambient
quality as the baseline, they recognize that it may not be feasible for all cleanups to meet
this standard; in practice they may use ambient quality as a starting point for assessing
cleanup levels and negotiating with RPs. Florida may require cleanup to meet state water
quality standards or ambient quality, whichever is higher.
H. Public Participation
The degree of public participation solicited in decisions about hazardous waste sites
varies widely among States. Public participation activity may be required under state
statute or regulation, pursued as agency policy, or taken up in response to expressed public
concern. Table HI-12 describes public participation requirements, policies, and ad hoc
procedures in each State.
Twenty-two (22) States have specific public participation requirements mandated by
statute or regulation. Several also have additional procedures established as agency policy.
Another fourteen (14) States seek community involvement strictly as a matter of policy or
in an ad hoc manner. The remaining fourteen (14) States did not describe the public
participation component of their programs.
Before describing the most common approaches towards public participation, we
note unusual features in two State programs. In New York a State Superfund Management
Board provides citizen oversight of remedial plans. Massachusetts permits public site
inspections by one or more local residents appointed to represent the community.
Public Notice Requirements
Eleven (11) States require public notice at one or more points in the site handling
process. The types of actions for which notice is required and the number of States
requiring notice are as follows:
PUBLIC NOTICE REQUIREMENTS
Tvoe of action Number of States
Site investigation or listing
Proposed remedial plan
Administrative/enforcement orders
Program to identify releases
Proposed settlement agreement
Notice of violation
4
8
2
1
1
1
35
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Most of the eleven States require notification regarding either site listing or remedial action
plans. At least four (4) States-Minnesota, Wisconsin, Oregon, and Washington-require
notification at several stages during site handling. In addition to investigative and remedial
plans, Washington publishes notices of compliance and enforcement orders and of
violations. Similarly, Montana has a public notice requirement for administrative orders
and consent decrees.
Public Comments
Twelve (12) States solicit public comments on site listing or remedial plans. Seven
(7) of these have a designated comment period ranging from 30 to 60 days; the others
have no specified time period.
California reinforces its public comment requirement with the statutory requirement
that anyone affected by a removal or remedial action at a site must have an opportunity to
participate in decision making.
PUBLIC COMMENTS
Comment Period
60 days
45 days
30 days
Unspecified
Number of States
1
1
5
5
Public Meetings/Hearings
Public meetings or hearings are required by eight (8) States. In two (2) of these
States, Michigan and Missouri, only an annual meeting is required, either to update a site
list or to review the State program. In addition, four (4) of these eight States require that
a public meeting be held upon petition or request. While not required by statute or
regulation, in another twelve (12) States meetings may be held as a matter of policy or in
an ad hoc manner, at the discretion of program officials.
MEETINGS AND HEARINGS
Public Meeting/Hearing Number of States
Required for one or more
stages of site handling
Required for annual review
Required upon petition or
request
Discretionary
2
4
12
36
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New Jersey conducts an extensive series of public meetings related to site
disposition: in addition to a meeting required prior to adopting a Record of Decision
(ROD), the State holds meetings prior to and upon completion of an Rl/FS, after the
remedial plan has been selected, and at the beginning and the conclusion of remedial
action.
Louisiana law does not require public meetings; in practice, however, the State
conducts regular meetings at complex sites. A public meeting is also held before an RP
settlement agreement is concluded.
Community Relations
A community relations program similar to that outlined in the Federal NCP may be
adopted by States to lend a formal structure to public participation activities. Under such a
program, one or more spokespersons might be designated to inform, solicit views of, and
respond to inquiries from local residents and/or local government officials and agencies
regarding conditions and activities at hazardous waste sites.
Community relations programs are a developing feature of state public participation
activities. Only three (3) States—Illinois, Louisiana, and Minnesota—currently engage in
extensive community relations efforts with regard to hazardous waste sites. In Minnesota
each site is assigned a public relations officer and in Louisiana the DEQ conducts a
community relations program at complex sites.
Illinois maintains an active community relations program designed to fine-tune
remedy selection using information on the site provided by local residents; the program
operates on the belief that it is a mistake to wait for a proposed plan to "go public".
Because remedy selection is dependent on citizen participation to so great a degree, the
State has not faced public opposition on any of its actions in remediating sites.
In addition to these three States, Idaho currently employs one full-time person to
handle community relations at one of its NPL sites. In Virginia a community relations
program is now being drafted. Other States, including Colorado and Pennsylvania, also
have community relations programs.
37
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TABLE III-l
OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
SUMMARY
25 States have full fund and enforcement capabilities with active
cleanup and oversight programs.
14 States have full fund and enforcement capabilities with limited
fund and program activity to date.
6 States have removal or emergency response programs but limited
remedial action authorities or capabilities.
5 States do not have superfund programs but deal with waste sites
in some manner.
38
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TABLE HI-1
OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
Fund
Fund
Fund
Fund
Fund
Fund
and
and
and
and
and
and
enforcement
enforcement
enforcement
enforcement
enforcement
enforcement
capabilities
capabilities
capabilities
capabilities
capabilities
capabilities
- Active cleanup and oversight program.
- Active cleanup and oversight program.
- Active cleanup and oversight program.
- Active cleanup and oversight program.
- Active cleanup and oversight program.
contained in two statutes - Fund for cleanup and oversight limited.
REGION II
New Jersey
New York
Fund
Fund
and
and
enforcement
enforcement
capabilities
capabilities
- Active cleanup and oversight program.
- Active cleanup and oversight program.
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
No fund and limited enforcement
Fund
Fund
Fund
and
and
and
enforcement
enforcement
enforcement
capabilities
capabilities
capabilities
capabilities - State "Superfund-type" bill before legislature.
- First request recently made to allocate funds to state projects.
- New statute authorizes large program.
- Fund for cleanup and oversight limited.
Limited fund capabilities - Enforcement only under RCRA-type hazardous waste law.
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Fund
Fund
and
and
No State
Act.
Fund
Fund
Fund
Fund
Fund
and
and
and
and
and
enforcement
enforcement
capabilities
capabilities
- Extremely limited fund and no program staff, however.
- Active cleanup and oversight program.
Superfund program - Limited fund and enforcement capabilities under Hazardous Waste Management
enforcement
enforcement
enforcement
enforcement
enforcement
capabilities
capabilities
capabilities
capabilities
capabilities
- Fund for cleanup limited.
- Must use enforcement provisions in other statutes or regulations, however.
- Two limited funds available to program, which is becoming more active.
- Active cleanup and oversight program.
- Active cleanup and oversight program.
39
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TABLE III-l (Con't)
OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund capabilities and active cleanup program - All enforcement authority from other statutes.
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities under several statutes - Active cleanup and oversight program.
REGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
Fund and enforcement capabilities - Limited program activities.
Fund and enforcement capabilities - Fund currently dormant with no balance. Oversight activities continuing.
Some fund and enforcement capabilities - Fund and program activities limited.
Some fund and enforcement capabilities - Fund and program activities limited.
Fund and enforcement capabilities - Active cleanup and oversight program.
REGION VII
Iowa
Kansas
Missouri
Nebraska
Fund and enforcement capabilities - Fund for cleanup limited.
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities - Active cleanup and oversight program.
No fund and limited program activity with Limited enforcement authority. State "Superfund-type" bill before
legislature.
REGION VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
No fund for State cleanup - program activity limited. Enforcement under other statutes or Federal authority.
Fund capability and new law provides enforcement authority - Fund and program activities limited to date.
Fund capability provided by new law - Some enforcement authority in other statute. Program activity is limited.
Fund and enforcement capability from new law - Program activity is limited.
Fund and enforcement capability from new law - Program activity and fund use limited.
Limited enforcement authority and fund - Limited program activity.
40
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TABLE III-l (Con't)
OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
REGION IX
Arizona
California
Hawaii
Nevada
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities - Active cleanup and oversight program.
New law provides fund and enforcement authority - Program activity limited to date.
Limited fund and enforcement authority - Program activity limited.
REGION X
Alaska
Idaho
Oregon
Washington
Fund and enforcement authorities - Program activity limited.
Limited fund - No enforcement authority specifically for cleanup of hazardous waste sites. Program activity
limited.
Fund and enforcement capabilities - Active cleanup and oversight program.
Fund and enforcement capabilities - Active cleanup and oversight program.
41
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TABLE III-2
STATUTORY AUTHORITIES AND PROVISIONS
SUMMARY
• 37 States have full fund and enforcement capabilities in a hazardous
waste cleanup statute.
• 7 States have limited fund capabilities (e.g., limited to emergency
response and CERCLA match).
• 9 States contain enforcement authorities in separate statutes.
• 1 State has no enforcement capabilities.
• 20 States report statutory provision for a Priority List.
• 15 States report type of citizen suit provision.
• 11 States provide type of victim compensation.
• 4 States have type of mandatory property transfer program.
• 1 State reported voluntary property transfer program.
42
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47
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TABLE III-3
HAZARDOUS WASTE SITES
SUMMARY
• 20 States report compiling a State priority list.
• 28 States have an inventory or registry of hazardous waste sites.
• Total identified hazardous waste sites in a State range from 1 to
25,000 (California).
• Sites needing attention in States range from 1 to 6654 (California).
• 11 States have 100 or less sites needing attention (or no info).
• 16 States have 100 to 300 sites needing attention.
• 16 States have 300 to 1000 sites needing attention.
• 7 States have over 1000 sites needing attention.
48
-------
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52
-------
TABLE III-4
PROGRAM ORGANIZATION
SUMMARY
• Program staff levels range from zero staff to a program with 742
authorized positions (Massachusetts).
• 16 States have 10 or less staff.
• 25 States have 11 to 50 staff.
• 3 States have 50 to 100 staff.
• 6 States have over 100 staff.
• 38 States rely primarily on the State AGs office for legal support.
53
-------
TABLE IH-4
PROGRAM ORGANIZATION
Agency
Program
(Number of Staff)
Legal Support
(Number of Staff)
REGION I
Connecticut
Maine
Massachusetts
Department of Environmental
Protection
Department of Environmental
Protection
Department of Environmental
Site Mediation Program (16)
Uncontrolled Sites Program
(11)
Bureau of Waste Site
AG's Office (1)
AG's Office (1-1/2)
• DEQE (15)
New Hampshire
Rhode Island
Vermont
Protection
Department of Environmental
Services
Department of Environmental
Management
Agency of Natural Resources
Cleanup (223 authorized, 140
filled) (DEQE Total - 519
authorized, 267 funded)
• Waste Management Engi-
neering Bureau (5)
• Water Resources Division
(several)
Environmental Response
Section (9)
Hazardous Sites Management
Section (7-includes RCRA
work)
• AG's Office (2-3)
AG's Office
• DEM (.6)
• AG's Office (1)
AG's Office (3, half-time)
REGION II
New Jersey
New York
Department of Environmental
Protection
Department of Environmental
Conservation
• Division of Hazardous Site
Mitigation (350 )
• Division of Hazardous
Waste Management (6001)
Division of Hazardous Waste
Remediation (majority of 300
staff Department-wide)
• DEP Office of Regulatory
Services
• AG's Office (20)
• NYDEC (14-16)
• AG's Office
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Department of Natural
Resources and Environmental
Control
Department of the
Environment
Department of Environmental
Resources
Department of Waste
Management
Department of Natural
Resources
Division of Air and Waste
Management, CERCLA
Branch (16)
CERCLA/UST/LUST
Program: Preremedial (20)
Response (15)
Community Relations (1)
• Resources Management (7)
• Hazardous Sites Cleanup
Program (125)
Division of Administration
and Special Programs (34)
Site Investigation and
Response Unit (6)
AG's Office (2, half-time)
AG's Office (2, 75% of their
time)
DER Chief Counsel's Office
(20)
AG's Office
AG's Office (1)
1. Certain percentage of staff dedicated to federal and State Superfund work.
54
-------
TABLE III-4 (Con't)
PROGRAM ORGANIZATION
Agency
Program
(Number of Staff)
Legal Support
(Number of Staff)
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
Department of Environmental
Management
Department of Environmental
Regulation
Department of Natural
Resources
Natural Resources and
Environmental Protection
Cabinet
Department of Natural
Resources
Special Projects Office (1)
• Bureau of Waste Cleanup
(59)
• Emergency Response (14)
Environmental Protection
Division
Uncontrolled Sites Section
(13)
Hazardous Waste Division,
CERCLA Branch (10 with
three new positions)
Wisconsin
Protection Agency
Department of Natural
Resources
Actions (52)
• Office of Emergency
Response (18)
Environmental Response and
Repair (40)
DEM (21)
DER's Office of General
Counsel (61)
Natural Resources and
Environmental Protection
Cabinet
AG's Office (I1)
North Carolina
South Carolina
Tennessee
Department of Environment,
Health & Natural Resources
Department of Health and
Environmental Control
Department of Health and
Environment
Superfund Section (20)
Site Engineering and
Screening Division (14)
Division of Superfund (63
authorized, 37 filled)
AG's Office (21) (one part-
time)
DHEC (81)
• DHEC (2)
• AG's Office
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Environmental Protection
Agency
Department of Environmental
Management
Department of Natural
Resources
Pollution Control Agency
Ohio Environmental
Division of Land Pollution
Control (32)
Project Management Branch
(40)
Environmental Response
Division (78 authorized, at
least 24 filled)
Site Response Section (70-
80)
• Office of Corrective
AG's Office
• DEM (6)
• AG's Office (3-4)
AG's Office (2)
• PCA
• AG's Office (2-6)
• OEPA (4)
AG's Office (2-3)
• DNR (2)
• AG's Office (3-41)
Certain percentage of staff dedicated to federal and State Superfund work.
55
-------
TABLE HI-4 (Con't)
PROGRAM ORGANIZATION
Agency
Program
(Number of Staff)
Legal Support
(Number of Staff)
REGION VI
Arkansas
Louisiana
Department of Pollution
Control and Ecology
Department of Environmental
Hazardous Waste Section:
Superfund Branch (IS)
Inactive and Abandoned Sites
DPCE (81)
DEQ(l)
New Mexico
Oklahoma
Texas
Quality
Department of Health and
the Environment
Oklahoma State Department
of Health
Texas Water Commission
Division (25 authorized, 19
Funded)
• Hazardous Waste Bureau,
Superfund Section (15);
• Other DHEC staff (10+)
Solid Waste Division (7)
Hazardous and Solid Waste
Division (33)
DHEC General Counsel (IS)
OSDH (1)
AG's Office (3) and
Commission Legal Staff
REGION VII
Iowa
Kansas
Department of Natural
Resources
Department of Health and
Environment
• Superfund (9.75)
• State Abandoned and
Uncontrolled Sites Registry
(3.25)
Bureau of Environmental
Remediation (23)
• DNR Legal Services (1,
less than half-time)
• AG's Office
DHE (2)
Missouri
Nebraska
Department of Natural
Resources
Department of Environmental
Control
Waste Management Program,
Superfund Section (16)
Hazardous Waste Section (8)
• DNR (31)
• AG's Office
• DEC (61)
• AG's Office (I1)
REGION VIII
Colorado
Department of Health
Montana
North Dakota
South Dakota
Utah
Wyoming
Department of Health and
Consolidated Laboratories
Department of Health and
Consolidated Laboratories
Department of Water and
Natural Resources
Department of Health
Department of Environmental
Quality
• Remedial Programs Section
(14)
• Hazardous Waste Control
(2)
• Solid Waste and Incident
Management (2)
Superfund Program (14.5)
Division of Waste
Management (2)
No lead division.
No dedicated staff.
Bureau of Solid and
Hazardous Waste, Superfund
Branch (16)
Water Quality Division (No
full-time staff)
AG's Office (181)
Special Assistant Attorney
General (1)
AG's Office (1)
AG's Office
• Bureau of Solid and
Hazardous Waste (1)
• AG's Office
AG's Office (1, half-time)
Certain percentage of staff dedicated to federal and State Superfund work.
56
-------
TABLE III-4 (Con't)
PROGRAM ORGANIZATION
Agency
Program
(Number of Staff)
Legal Support
(Number of Staff)
REGION IX
Arizona
California
Hawaii
Nevada
Department of Environmental
Quality
Department of Health
Services
Department of Health
Department of Conservation
and Natural Resources
Office of Waste Programs
(141)
Site Mitigation Unit (170)
Remedial Response Program
(10)
Waste Management Section
(71)
AG's Office (1)
• DHS (4-5)
• AG's Office (1)
AG's Office
AG's Office (I1)
REGION X
Alaska
Idaho
Department of Environmental
Conservation
Department of Health and
Oil and Hazardous Substances
Spill Response Section
Bureau of Hazardous
AG's Office
AG's Office (21)
Oregon
Washington
Welfare
Department of Environmental
Quality
Department of Ecology
Materials: Policy and
Standards and Remedial
Action Sections (10)
Environmental Cleanup
Division (30 permanent, 9
temporary)
Hazardous Waste Investiga-
tion and Cleanup Program
(140 authorized, 110
employed)
AG's Office (1-2)
AG's Office (3-4)
Certain percentage of staff dedicated to federal and State Superfund work.
57
-------
TABLE III-5
PROGRAM ADMINISTRATION AND STAFF: FUNDING SOURCES
SUMMARY
• 30 States receive funding for program administration and staff from
the State's General Fund.
• 23 States receive administration funds from their hazardous waste
cleanup fund.
• All 50 States receive federal funding for program administration and
staff.
58
-------
TABLE III-5
PROGRAM ADMINISTRATION AND STAFF:
FUNDING SOURCES
State General
Fund
Cleanup Fund Federal Other
Grants
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
X (50%)
X
X
X (50%)
X
XXX (unspecified)
X X
X X
X
REGION II
New Jersey
New York
X
X
X X
X X (35 positions)
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
X
X
X
X
X
X
X X
X
X
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
X
X (1/3)
X (25%)
X
X
X
X
X
X (1/3) X (1\3)
X (75%)
X
X CA with RPs
X
X
X X
59
-------
TABLE III-5 (Con't)
PROGRAM ADMINISTRATION AND STAFF:
FUNDING SOURCES
State General Cleanup Fund Federal Other
Fund Grants
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
X X
XXX
X X
X X
X X
XXX Various funds
authorized by state
statutes
REGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
X
X X Environmental
Program Trust Fund
X X
X
X X
REGION VII
Iowa
Kansas
Missouri
Nebraska
X (9.75 positions) Oil Overcharge Fund
(3.2S positions)
X X
XXX
X
60
-------
TABLE III-5 (Con't)
PROGRAM ADMINISTRATION AND STAFF:
FUNDING SOURCES
State General
Fund
Cleanup Fund Federal Other
Grants
REGION VIII
Colorado
Montana
North Dakota X
South Dakota
Utah X (currently
unfunded)
Wyoming X (2/3)
X X
X X
X
X X
X X (unspecified)
X (1/3)
REGION IX
Arizona
California X
Hawaii X
Nevada
X X
X X
X
X X
REGION X
Alaska X
Idaho
Oregon
Washington
X
X X
X X
X X
61
-------
TABLE III-6
STATE/FEDERAL PARTNERSHIP
SUMMARY
• 44 States have cooperative agreements with EPA.
• 19 States have multi-site cooperative agreements with EPA.
• 34 States have management assistance grants from EPA.
• 41 States have CORE Grants from EPA.
• 10 States have signed SMOAs.
• 23 States have a draft or are in negotiations for a SMOA.
62
-------
TABLE III-6
STATE/FEDERAL PARTNERSHIP
CAs
MSCAs MAs
CORE
Grants
SMOAs
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
X
X
X
X
X
X
X
X X
X X
X X
X
X X
X
X
X
X
X
X
N
N
N
N
N
N
REGION II
New Jersey
New York
X
X
X X
X
X
X
N
N
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
X
X
X
X
X
X
X X
X
X
X
X
X
X
D
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North
Carolina
South
Carolina
Tennessee
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
N
N
D
X, N
D
D = Draft
N = In negotiation
63
-------
TABLE III-6 (Con't)
STATE/FEDERAL PARTNERSHIP
CAs
MSCAs MAs
CORE SMOAs
Grants
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
X
X
X
X
X
X
X
X
X
X
X
X
X
X
N
X N
D
X X, N
REGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
X
X
X
X
X
X X
X X
X X
X X
X X
X N
X X
X X
X X
X X
REGION VII
Iowa
Kansas
Missouri
Nebraska
X
X
X
X
X X
X
X
X
X
X
X
X
REGION VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
X
X
X
X
X X
X
X
X
X X
D
X
X
X X
D = Draft
N = In negotiation
64
-------
TABLE III-6 (Con't)
STATE/FEDERAL PARTNERSHIP
CAs MSCAs MAs
CORE
Grants
SMOAs
REGION IX
Arizona X
California X N X
Hawaii
Nevada
X
X
X
D
REGION X
Alaska
Idaho XX X
Oregon XX X
Washington XX X
X
X
X
X
N
N
D = Draft
N = In negotiation
65
-------
TABLE III-7
FUNDING OF STATE CLEANUP ACTIVITIES
SUMMARY
48 States have cleanup Funds.
15 States have more than one Fund or Account.
Total State "superfund" balance for all 50 States is $415M with an
additional $1,981M authorized in bonds in 4 States.
On average, States have fund balances of $8.3M available for cleanup
activities (excluding bond authorizations above).
The 9 States with Fund balances over $10M (excluding bond
authorizations) contain S323.3M, over 78% of the total State
"superfund" balance.
Including bond authorizations, States have fund balances of $47.5M:
18 States have no fund or less than $1M
18 States have between $1M and $5M
3 States have between $5M and $10M
11 States have more than $10M
For those States providing information, total annual additions to
State Funds are approximately $295M/yr.
Sources of Funds comprising more than 20% of Fund additions are:
Appropriations (20 Funds in 18 States)
Fees (20 Funds in 20 States)
Bonds (13 Funds in 12 States)
Penalties and fines (12 Funds in 12 States)
Taxes (10 Funds in 9 States)
66
-------
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71
-------
TABLE III-8
USES OF STATE CLEANUP FUNDS
SUMMARY
States authorized to use Fund for:
Emergency Response (46 States)
Removals (42 States)
Remedial Action (41 States)
Studies (40 States)
CERCLA Match (36 States)
O&M (34 States)
Victim Compensation (11 States)
Special Conditions on Fund Use:
Exhaust voluntary and/or Federal funds first (20 States)
Seek approval or authorization to obligate funds (7 States)
Ceiling on amount available for cleanup activities
(6 States)
Site on State list or non-NPL Site (4 States)
Funds available only for specific types of wastes or
facilities (4 States)
72
-------
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TABLE III-9
LIABILITY STANDARDS
SUMMARY
• 14 States have strict, joint and several liability standards.
• 9 States have strict, joint and several liability standards with
provisions for apportionment.
• 5 States have proportional liability standards.
• 5 States specify strict or joint and several liability, but not both.
• 17 States have other standards, or the standard is not specified.
78
-------
TABLE III-9
LIABILITY STANDARDS
Strict
Joint and Several Proportional Other Not Specified
REGION I
Connecticut X
Maine X
Massachusetts X
New Hampshire X
Rhode Island X2
Vermont X
X
X
X X1
X
X
X X1
REGION II
New Jersey X
New York
X
X3
REGION III
Delaware
Maryland X
Pennsylvania X
Virginia
West Virginia
X
X5
X X7
X
X
REGION IV
Alabama
Florida X
Georgia
Kentucky
Mississippi
North Carolina
South Carolina X
Tennessee X
X
X
X
X*
X9
X
X
X
79
-------
TABLE III-9 (Con't)
LIABILITY STANDARDS
Strict
Joint and Several Proportional Other Not Specified
REGION V
Illinois X
Indiana X
Michigan
Minnesota X
Ohio X11
Wisconsin X
REGION VI
Arkansas
Louisiana X
New Mexico
Oklahoma
Texas X
X11
X
X
X X10
X
X12
X
X X1-5
X13
X
X X1
REGION VII
Iowa X14
Kansas
Missouri X
Nebraska X
X11
X
REGION VIII
Colorado
Montana X
North Dakota
South Dakota X
Utah X
Wyoming
X
X X10
X
X
X
80
-------
TABLE III-9 (Con't)
LIABILITY STANDARDS
Strict Joint and Several Proportional Other Not Specified
REGION IX
Arizona XX X
California X X1'10
Hawaii X
Nevada
REGION X
Alaska X X
Idaho
Oregon X X15
Washington X X
1. Where liable party establishes by a preponderance of evidence that he or she liable for a portion then liability "divisible."
2. "Absolutely" liable - interpreted as strict, joint, and several by agency.
3. Determined by Commission, any statutory or common law defense available.
5. Where there is reasonable basis for determining contribution.
6. Legislative history indicates joint and several liability.
7. At multi-party sites, State is required to prepare NBARs and parties may "cashout" with proportional share plus premium.
8. "Any person responsible for a release or threatened release of a hazardous substance."
9. "Any person creating, or responsible for creating, an immediate necessity for remedial or clean-up action."
10. Court apportionment
11. No liability standard specified in Statute - State has argued for strict, joint and several liability.
12. Primary cleanup statute leaves liability up to common law standards.
13. "Persons responsible for hazardous waste cleanup" - interpreted as joint and several.
14. Limited strict liability - $5M for transporters, $50M for facilities.
15. Under common law principles, if harm is indivisible and not capable of apportionment, joint and several liability applies.
81
-------
TABLE HMO
PENALTIES AND DAMAGES AVAILABLE
IN STATE "SUPERFUND" STATUTE
SUMMARY
22 States have punitive damage provisions.
17 States have punitive damage provisions for treble the
State's cost.
2 States have punitive damage provisions for double the State's
cost.
2 States have punitive damage provisions for one and one-half
times the State's cost.
1 State does not limit the amount for punitive damages.
45 States have civil penalty provisions.
Most States have civil penalties of up to $10K/day (19 States)
or $25K/day (15 States).
2 States have civil penalties of up to $50K/day.
4 States have caps civil penalties ranging from
$5-$250K/violation.
2 States have minimum civil penalties of $5K/day.
82
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TABLE 111-10
PENALTIES AND DAMAGES AVAILABLE
IN STATE "SUPERFUND" STATUTE
Punitive Damages
Civil Penalties
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
1 1/2 times cost and expense (negligence)
AG (no limit)
Treble
Treble
Treble
Up to $25,000/day
Up to $25,000/violation
Up to $10,000/day or administrative penalties
Up to $10,000/day
REGION II
New Jersey
New York
Treble
Up to $50,000/day - $25,000 for discharge/day
and $25,000 for violation/day
Up to $25,000/violation plus $25,000/day
(Doubles for second violation)
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
Treble
$25,000/day
Up to $10,000/day Administrative-up to
$l,000/day ($50,000 cap).
Up to $25,000/day (min - $5,000/day).
Up to $10,000/day
Penalty for not paying fee
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Treble
1 1/2 times
$100-25,000 ($250,000 max.)
Up to $25,000/day
Up to $25,000/day
$l,000/day
Up to $25,000/day
$10,000/day for violation involving hazardous
waste (Public Health Land)
Up to $25,000/day
Up to $10,000/day
83
-------
TABLE IIMO (Con't)
PENALTIES AND DAMAGES AVAILABLE
IN STATE "SUPERFUND" STATUTE
Punitive Damages
Civil Penalties
REGION V
Illinois Treble
Indiana Treble*
Michigan
Minnesota
Ohio
Wisconsin
$10,000 for violation and $l,000/day
$25,000/day and $500/hour of violation of
emergency order
$25,000/day
$20,000/day or $100,000 for disturbing closed
RCRA facility
Up to $10,000/day
$10 to $5,000/day
REGION VI
Arkansas Treble
Louisiana Treble cost of RFs share of costs
New Mexico
Oklahoma
Texas Double under Spill Act
Up to $25,000/day
Up to $50,000/day
$5,000/day or $10,000/day
Up to $10,000/day
Up to $10,000/day
REGION VII
Iowa Treble
Kansas
Missouri Treble
Nebraska
Up to $l,000/day
Up to $10,000/day
Judicial only
REGION VIII
Colorado
Montana Double
North Dakota
South Dakota
Utah
Wyoming
Up to $1,000 administrative penalties or $10,000
per day for violation of order
Up to $5,000, $10,000 or $25,000 per day for
violation of order, violation of permit, regulation,
or standards, or violation of statute, permit or
orders.
Up to $10,000/day
Up to $10,000/day
84
-------
TABLE 111-10 (Con't)
PENALTIES AND DAMAGES AVAILABLE
IN STATE "SUPERFUND" STATUTE
Punitive Damages Civil Penalties
REGION IX
Arizona Treble Up to $5,000/day or up to $10,000/day (judicial)
California Treble Up to $2S,000/day
Hawaii Treble Up to $10,000/day
Nevada Up to $10,000/day
REGION X
Alaska $500-100,000 + $10,000/day
Idaho Up to $10,000/day
Oregon Treble $10,000/day
Washington Treble Up to $25,000/day
85
-------
TABLE III-ll
STATE CLEANUP POLICIES AND CRITERIA
SUMMARY
States reported that their cleanup policies and criteria includes one
or more of the following:
18 States rely on State ARARs.
20 States rely on EPA Guidelines.
7 States rely on MCLs.
6 States have "cleanup to background" policy.
14 States use a risk standard assessment method.
86
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TABLE IH-12
STATE PUBLIC PARTICIPATION PROCEDURES
SUMMARY
22 States have statutory or regulatory public participation
requirements.
12 States solicit comments from the public, 1 State must
respond to significant comments, and 1 State must include comments
in Administrative Record.
8 States conduct public meetings or hearings and 3 States
do so only if requested.
11 States have "notice" requirements.
24 States have policies or procedures for public participation.
12 States hold or may hold public meetings.
3 States have community relations staff assigned to
selected or all sites.
92
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98
-------
CHAPTER IV
STATE SUMMARIES
This chapter contains a concise, two-page summary of each State's hazardous waste
cleanup capabilities. The States are listed according to EPA Regions.
Nine program elements are described in each of the summaries:
• Sites - includes NPL sites, State list sites, State inventory or registry sites,
unconfirmed or potential State sites, or total identified hazardous waste sites.
• Statutes - lists legislation providing Fund, cleanup, and enforcement
capabilities, and major provisions of statute(s), including significant
amendments.
• State Agency - describes State agency(s) responsible for hazardous waste
cleanup, including number of program staff and number of staff providing
legal support.
• Funding - includes description of funding mechanism, sources of funds, fund
balances, annual additions, and authorized expenditures.
• Enforcement - discusses legal authorities such as liability standard, cost
recovery, penalty and damage provisions, order authority, in addition to
enforcement methods.
• Cleanup Activities - presents information on cleanup activities at both NPL
and non-NPL State sites.
• Cleanup Policies and Criteria - summarizes cleanup standards and/or criteria
and policies used for remedy selection.
• Public Participation - summarizes statutory requirements and State policies
and procedure for public participation in the hazardous waste cleanup
program.
• Federal/State Partnership - lists any agreements or grants existing between the
State and EPA.
The information for each of the State programs is current as of the date indicated
on the first page of the summary.
99
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REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
101
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
8
6
Inventory of Haz. Waste
Disposal Site (1/87): 567
sites including NPL sites
75 under investigation
CONNECTICUT
[5/22/89]
1.
2.
3,
Public Act 87-561, codified at Conn. Gen, Stat ||22a-l33a through -I33h i (1987) c^a^es
Superfufld program, authorizes Fund expenditures and cpst leeovery* : § : , ..:. v ;' . • f i : : ! ; ;f
Emergency Spill Reyxmse Fund, Conn, Gen. Stafc §22a-45l
-------
CONNECTICUT (continued)
ENFORCEMENT
Legal authorities available include strict, joint
and several liability, orders for information and
site access, subpoena authority, administrative
and consent order authority, injunctive action
and cost recovery authority. Civil penalties of
$25K/day available under hazardous waste
program, 1 1/2 x punitive damages available.
Lien provision also available. Preferred enforce-
ment method is consent order, followed by
administrative order, or court action. $450K
collected in 1988 civil penalties and criminal
fines. State is required to attempt cost recovery.
CLEANUP POLICIES
AND CRITERIA
Determined on site-by-site basis, including
consideration of ground-water classification.
CLEANUP ACTIVITIES
Inventory of 561 sites includes SO sites that
have been cleaned up. Up to 40 sites added to
inventory in FY89.
PUBLIC PARTICIPATION
No public participation requirements. DEP
contacts local officials with cleanup workplan
and may hold public meetings at various stages
of cleanup.
FEDERAL/STATE
PARTNERSHIP
A SMOA is in negotiation. State has received
CAs, MAs, and a CORE Grant in FY88.
103
-------
SITES
NPL sites
Proposed NPL
known and
potential sites
6
2
317 (including NPL sites).
Of these sites, 120 need no
further action, 108 need Sis,
83 need cleanup, six (6)
have been cleaned up.
MAINE
[5/3/89]
STATUTE
Uncontrolled Hazardous Substance Sites Act,
and 198;?) provides for cleanup of sites and enforcement authorities.
$|13^ Sbrdugfe
STATE AGENCY
Department of Environmental Protection,
Bureau of Oil and Hazardous Material Control,
Division of Licensing and Enforcement, Uncon-
trolled Sites Program has 11 staff split into
three (3) sections: administrative support and
two (2) site management units. Funding from
Federal and State sources. Planned expansion
will increase staff in Uncontrolled Sites Program
by 21 positions by end of 1989.
One (1) to one and one-half (1.S) positions
in the AG's office are devoted to Superfund-
type enforcement activity. Dept. also works with
Bureau of Health in conducting risk assess-
ments, lab work.
FUNDING
Two accounts:
(1) The Uncontrolled Sites Fund is currently
unfunded. In the future, cost recovery for
oversight and penalties/fines would be deposited
in Fund.
(2) The "Bond Account", authorized by
cleanup fund referenda in 1984 ($3.23M) and
1987 ($5M) contains $4-5M unobligated
balance. No cap on Fund.
Fund used for emergency response, studies
and design, remedial actions, O&M, State
CERCLA match.
104
-------
MAINE (continued)
ENFORCEMENT
Legal authorities include strict, joint and
several liability, orders for information, site
access and remediation, order authority, cost
recovery, liens and punitive damages.
Commissioner must designate a site for consent
decree. Penalty authority from hazardous waste
statute. Dept. also has property forfeiture
provision (used once).
State prefers negotiated agreements. About 20
cleanup orders issued to date. Cost recovery
settlement received in two cases. Dept. writes
and negotiates agreements, AG handles other
enforcement
CLEANUP POLICIES
AND CRITERIA
Case-by-case. Risk to human health
toxicity levels considered. Risk range of 10* to
107 for carcinogens.
CLEANUP ACTIVITIES
No State-lead NPL sites. Six (6) sites cleaned
up, 191 more State sites need inspection and
cleanup. Discovery program in 1987 identified
180 sites in a two-week period.
PUBLIC PARTICIPATION
No formal requirements. Participation on an
ad hoc basis.
FEDERAL/STATE
PARTNERSHIP
SMOA in negotiations.
CORE Grant in FY88. State has received
MSCA funding, CA funding, and MA funding.
105
-------
SITES
NPL sites
State list
unconfirmed sites
21 final
1152 (includes
NPL sites)
1634 according to
State classification
system
MASSACHUSETTS
[8/29/89]
STATUTE
Tfa Massachusetts Oil o^ tffzor<&^
21E (1983), provides for strict, joint and several liability; sdte access,
auUjprity; sulqx>ena and consent order aufljprity; injanctive relief; civil and criminal
priority liens; and punitive damages, Citizen suits are authorized by a separate
Gen*
and administrative order
penalties; cost recovery;
statute; : .: '•:
STATE AGENCY
Three (3) bureaus in the Department of
Environmental Protection (DEP) comprise the
cleanup program. Of 519 authorized positions,
there are 267 funded positions. The Bureau of
Waste Site Cleanup has 140 funded positions
and is responsible for site cleanups.
Fifteen DEP attorneys for 2-3 attorneys in
the AG's office provide enforcement support
FUNDING
Bonds, hazardous waste transporter fees,
penalties and fines, and cost recoveries fund
program activities. Balance of S56.4M in bonds
(out of $85M authorized) remains available for
remedial activities, O&M, and CERCLA match.
The hazardous waste transporter fees, amounting
to $5.8M/yr are used to service bond debt.
Obligated bonds and transporter fees are
deposited in Massachusetts General Fund until
needed.
Program administration and personnel costs
are financed by penalties and fines and cost
recoveries deposited in the Environmental
Challenge Fund (ECF). New oversight cost
recovery program began 7/1/89 and is expected
to generate $5M/yr. Balance of ECF is $5.8M
as of 7/89. An additional $7.5M remains of
$21M one-time appropriation in 1987 and is
available for program operations.
106
-------
MASSACHUSETTS (continued)
ENFORCEMENT
DEP will provide PRPs an opportunity to
clean up a site; if the party is recalcitrant, DEP
will clean up the site and recover costs.
Administrative orders are cumbersome, due to
the appeals process. Voluntary cleanup is high
(80%); program staff attribute this to the
statute's provisions for priority liens and
punitive damages.
CLEANUP POLICIES
AND CRITERIA
Permanent solutions required whenever
feasible. Standards include existing health or
environmental standards (e.g. MCLs and State
ARARs) where applicable or suitably analogous.
Feasible includes both technical and economical
practicability. If no applicable standards exist,
use site-specific health-based standard, including
risk assessment.
CLEANUP ACTIVITIES
270 RAs completed over and above 1151 on
State list.
90% PRP cleanups.
One (1) State lead at one (1) NPL site.
PUBLIC PARTICIPATION
The statute and regulations provide for notice
to the public of results of site investigations
within 30 days of completion, public meetings
upon petition for community involvement
regarding response actions. State technical
assistance grants, and public site inspections.
FEDERAL/STATE
PARTNERSHIP
No SMOA, trying to negotiate one.
MSCA-one (1) multisite CA covering 22
sites. Three (3) site-specific CAs. MAs and one
TAG, CORE Grant for FY88.
107
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
15
0
Between 150-175
nonNPL hazardous
waste sites
NEW
HAMPSHIRE
[8/11/89]
STATUTE
New Hampshire Hazardous Waste Laws, Hazardous Waste Cleanup Fund (HWO3), (1981, amended 1981,
1983, 1985, 1986, and 1987), establishes State Fund and provides for strict, joint and several liability,
criminal penalties, cost recovery, and first priority liens on real J>r0r>erty where hazardous waste or
hazardous material is located, the business revenues generated: from fte ifacility on tne real property where
the hazardous waste or hazardous material Is located, and aB personal property located at this facility. A.
lien without priority, effective as of the da» and time of recording: and filing, can te established against all
other property.
STATE AGENCY
The Waste Management Division of State's
Department of Environmental Services (DES)
administers HWCF. The Division is broken into
three (3) bureaus. The Waste Management
Engineering Bureau is primarily responsible for
federal and state Superfund work and has five
(5) staff funded by the HWCF. The HWCF also
funds several other positions within the DES,
including a team of hydrogeologists within the
Water Resources Division of DES. AG's office
provides legal support The AG's office charges
the HWCF for its certain services it performs at
HWCF sites.
FUNDING
The HWCF, with a balance of $1.2M (as of
6/30/88) is derived primarily from quarterly fees
paid by generators of hazardous waste fees paid
by facilities that treat, store and dispose of
hazardous waste from out of state and criminal
penalties and fines. Recovered costs, interest on
the HWCF, and appropriations also are placed
in the HWCF. An average of $800K is
collected per FY. [The HWCF has a cap of
$3MJ
The HWCF can be used for emergency
response, removals, remedial action, and other
actions that constitute aequate, safe containment
and cleanup of nonqualifying Superfund sites.
Fund monies can be expended only for those
projects that do not qualify for assistance
pursuant to Superfund. All fund expenditures
must be approved by the governor.
108
-------
NEW HAMPSHIRE (continued)
ENFORCEMENT
The New Hampshire Hazardous Waste Laws
provide for strict, joint and several liability.
State is authorized to issue administrative orders
including orders for information, site access, and
site cleanup. State also has subpoena and
consent order authorities. State may take
injunctive action to induce generator to clean up
site. State has first priority lien on real property
where hazardous waste and hazardous materials
are located, on business revenues generated
from the facility on the real property where the
hazardous wastes and hazardous materials are
located, and on all personal property located at
the facility. State may impose criminal penalties
and bring action to recover costs.
CLEANUP ACTIVITIES
The HWCF is used to fund several staff
positions within DES, and has been used for
emergency removal at the N.H. Plating facility
in Merrimack, and for various hydrogeological
studies at sites in the preliminary stages of
investigation. It also will be used to engage in
clean-up order actions at the Hunt Tire facility.
Portions of the HWCF are used for a household
hazardous waste clean-up program, and to pay
the AG's office for legal services.
CLEANUP POLICIES
AND CRITERIA
Cleanup must meet or exceed Federal
standards. The State ARARs are as stringent as,
or more stringent, than Federal ARARs.
PUBLIC PARTICIPATION
No formal requirements. The State is
currently studying and establishing public
participation procedures, and intends to hire a
public relations coordinator. Presently RPMs
informally contact local citizens and government
officials.
FEDERAL/STATE
PARTNERSHIP
MSCAs for seven (7) sites. CAs for 13 sites.
Eight (8) MAs granted. FY88 CORE Grant
No technical assistance grants.
109
-------
SITES
NPL sites
Proposed NPL
suspected and
unconfirmed sites
258
RHODE ISLAND
[8/11/89]
STATUTE;
Hazardous Waste Management Act, RX Gen. Laws, ||23-l9J4 ihrOugn 2349,1-33
1984, 1987) provides authorities for cleanup of abafldfc^^
Response Fund estal^ed: by araej«taei*t» |23>4^^ :
1979,
STATE AGENCY
Department of Environmental Management,
Division of Air and Hazardous Materials,
Environmental Response Section has nine (9)
full-time professional staff. Staff funding from
CORE grant, CAs for NPL oversight and pre-
remedial work, and Bond Fund.
In-house legal support provided by one (1)
attorney (60% of time), with assistance from
AG's office on criminal cases.
FUNDING
Environmental Response Fund has a balance
of $2.2M (1/88). Primary source of Fund is
bonds, with smaller contributions from cost
recoveries and penalties/fines.
Fund may be used for emergency response,
removals, site evaluation, remedial action, and
temporary water supplies and resident relocation.
110
-------
RHODE ISLAND (continued)
ENFORCEMENT
Legal authorities include "Absolute" liability
(strict), subpoena, administrative orders, injunc-
tive action, civil and criminal penalties, cost
recovery and treble damages.
CLEANUP POLICIES
AND CRITERIA
Case-by-case; no standards.
CLEANUP ACTIVITIES
No information.
PUBLIC PARTICIPATION
No formal requirements or informal pro-
cedures on State cleanups. On Federal enforce-
ment sites, process may include hearings where
public can become involved.
FEDERAL/STATE
PARTNERSHIP
State has CAs for pre-remedial work and CA
for Management Assistance at 7 NFL sites.
CORE Grant for FY88.
Ill
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
4
4
130 (all types of
hazardous waste sites)
122
50
VERMONT
[5/2/89]
; ; ' | : J. STATUTES
1. Contingency Fund, Vermont Water Pollution Control Law* Vt StaL AtttL tit 16 §$1282-1283,
provides fund for emergency response, studies and design and remedial actions.
2. Vermont Solid Waste Management law, Vt Sfct Ann. tit 10 §§6601-6618 (1977,, significant
amendments in 1981> 1985, and 1987) provides enforcement authorities.
STATE AGENCY
Agency of Natural Resources, Department of
Environmental Conservation, Hazardous
Materials Management Division, Hazardous Sites
Management section has seven (7) technical
staff. Section handles all hazardous waste work
including CERCLA, RCRA, pre-remedial and
State list work. 40% of staff time spent on
Federal CERCLA. One (1) staff member at
Department of Health handles site management
Three (3) attorneys at AG's office spend at least
50% of time on hazardous waste cases. Admin-
istrative costs from appropriations.
FUNDING
Environmental Contingency Fund balance of
$675K with $400K collected last year. No cap
on Fund. Funding sources are a hazardous
waste generator tax, discharge permit application
fees, cost recovery and damages.
Fund can be used for emergency response,
studies and design, and remedial actions. State
CERCLA match not financed out of
Contingency Fund Disbursements for non-
emergency situations cannot exceed $50K
without approval.
112
-------
VERMONT (continued)
ENFORCEMENT
Under Fund, Agency must give "discharging
party" opportunity to clean up. Agency sends
out letters, to be followed by administrative
order in the event of noncompliance. 95% of
sites are cleaned up by RPs voluntarily. The
State has strict, joint and several liability and
treble damages provisions. Liability apportion-
ment is available. The Agency has strong order
authority including authority to request informa-
tion, subpoena documents, issue administrative
orders, issue consent orers, and issue orders for
entry.
Penalties and fines go to General Fund;
recovered costs go into Contingency Fund.
CLEANUP POLICIES
AND CRITERIA
Standards based on ground-water statute used
as triggers for remedial action. Actual cleanup
determination made on a case-by-case basis.
State is developing soil standards.
CLEANUP ACTIVITIES
44 sites have been closed as of 5/89.
PUBLIC PARTICIPATION
No formal requirements. Agency holds
public meetings.
FEDERAL/STATE
PARTNERSHIP
SMOA is planned to be in place in 1989.
Two MSCA's in 1989 for pre-remedial, and
remedial management assistance. FY88 CORE
Grant
113
-------
REGION II
New Jersey
New York
114
-------
NPL sites
Proposed NPL
State list
unconfirmed sites
SITES
100
7
Status Report Update
(major sites over $100K)
-336 (includes ECRA sites
over $100K)
1200
NEW JERSEY
[8/11/89]
I.
/:••• ••;•• - ; l--' -; ••>; • STATUTES
Ntw Jersey Spill Cetttpertsatioif
-------
NEW JERSEY (continued)
ENFORCEMENT
Legal authorities include strict, joint and
several liability (not to exceed $50M per facility
for damages), with a treble damages provision.
Injunctive action, cost recovery authorized in
Act Civil penalties of $50K/violation, criminal
penalties of misdemeanor for false information,
in addition to provisions in criminal Code. The
Spill Act is interpreted to provide consent order
authority. Lien provision in statute has priority
over all other liens. Department policy, to
preserve treble damages provision, is to provide
RP notification and chance to cleanup.
CLEANUP ACTIVITIES
Of sites in State, approx. one-third State-
funded, one-third Federally-funded, one-third
privately-funded. Approx. half of NPL sites in
State are State-lead. Nine (9) of the top 10 NPL
sites will be in cleanup phase by end of FY89.
Between July and December 1988, 176
ECRA consent orders entered into, with
financial assurances over $90M.
CLEANUP POLICIES
AND CRITERIA
Use appropriate and applicable existing
criteria, or action levels. Standards assessed on
a site-by-site basis and should be consistent
with NCP.
PUBLIC PARTICIPATION
Act specifies that actions should "to the
greatest extent possible, be in accordance with
the NCP." Department policy is to generally
follow NCP procedures. State holds public
meeting prior to adopting RODs, public meeting
prior to RI/FS, upon completion of RI/FS, upon
completion of RD, at beginning of RA, at
conclusion of RA.
FEDERAL/STATE
PARTNERSHIP
No SMOA. State has received CAs
MAs. CORE Grant in FY88.
and
State source estimates that New Jersey
received $274M in Federal Superfund monies in
FY88-20% of the national site-specific dollars,
and 48% of Federal funds available for remedial
actions. In FY89, the State is expected to
receive over $12S.8M in Federal funds, 23% of
available CERCLA dollars.
116
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
73
3
1373; 1,091 on registry
(incl. NPL) plus 282
delis ted
615-546 under investi-
gation and 69 awaiting
investigation
NEW YORK
[8/11/89]
.' •. L .- -...- : .STATUTES'
1. Abandoned Sites Act of 1979 (1979» Chapter 282, Environmental Conservation Law article 27, title 13}
; mandates statewide inventory of sites, registry of sites, and provides order and cleanup authority.
2. New York State Superfund Act (1982, Chapter 857), establishes fund for cleanup of sites and State
: CERGLA match, !:-.
1985 Amendments to State Superfund Act (1985, Chapter 38} increased assessments and fees,
3. Environmental Quality Bond Act tf 1986, authorizes $1,28 in bonds to address inactive hazardous
waste sites. ;
STATE AGENCY
Appropriations for staff from State General
Fund transferred to Hazardous Waste Remedial
Fund. Department of Environmental Conserva-
tion (DEC) has approx. 300 staff working on
State and Federal Superfund activities-265
funded by State, approx. 35 funded by Federal
monies. Most of personnel in Division of
Hazardous Waste Remediation. Approx. 14-16
staff work on Superfund in the Division of
Environmental Enforcement
FUNDING
Current funding mechanism is Hazardous
Waste Remedial Fund, State Finance Law §97-
6. Prior to 4/1/87 hazardous waste assessments,
regulatory fees and an oil transfer surcharge
funded this "Investigation and Construction
Account" which DEC is drawing down. Balance
as of 2/28/89, $23M. DEC will not issue any of
the $1.2B authorized bonds until account
depleted. $1.2B cap on bonds.
Since 4/1/87, assessments, fees, and oil trans-
fer surcharge have been placed in "Industry Fee
Transfer Account," which will be used to pay
for one-half of debt service on bonds when
issued.
Waste end fee expected to collect $7.7M in
FY88/89, regulatory fees also expected to
collect $6M in FY88/89. Petroleum transfer fee
expected to collect $14M in FY88/89.
$10.6M from State Emergency Remedial
Action Fund Account. Fund used for emergency
response, removals, studies and design, remedial
actions, O&M, State CERCLA match.
117
-------
NEW YORK (continued)
ENFORCEMENT
Division of Environmental Enforcement and
AG's office involved in enforcement activities.
Legal authorities include orders for information
and site access, subpoena authority, administra-
tive order authority, consent order and injunctive
action authority. Civil penalties of $25K per
violation in addition to $2SK per day for con-
tinuing violation. Penalty doubles for second
violation. Criminal penalty up to $25K/day and/
or one year imprisonment Penalty doubles for
second violation. Cost recovery also authorized.
Preferred enforcement method is negotiated
settlement.
CLEANUP ACTIVITIES
Of the 1,091 sites on Registry, 860 have
action underway, 52 awaiting cleanup, 69
awaiting investigation, 61 others with deferred
action, 49 sites cleaned up of which 39 require
O&M, ten (10) require no O&M. 282 sites
delisted, 36 cleaned up, 246 required no action.
Goal is to remediating all sites by year 2000.
CLEANUP POLICIES
AND CRITERIA
Decisions on site-by-site basis in cooperation
with the Department of Health. DEC draft
policy is to encourage use of permanent
remedies. Standards under development by inter-
agency task force.
PUBLIC PARTICIPATION
Rules specify DEC must publish notice and
brief analysis of remedial program, allow 30
days for comments, provide opportunity for
comments at public meeting. DEC must solicit
view of Federal, State and local government
officials, local civic organizations, and local
residents. State Superfund Management Board
provides citizen oversight of remedial program.
FEDERAL/STATE
PARTNERSHIP
No SMOA planned. CORE Grants, CAs,
MAs, and four (4) TAGs awarded in State.
118
-------
REGION III
Delaware
Maryland
Pennsylvania
Virginia
West Virginia
119
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
12
8
48
investigated 200 sites
DELAWARE
[8/11/89]
STATUTE
Hazardous Waste Mawgtment Act, Det Code Ann. tit 7, §6301 through 6318
providing authority to engage in emergency response, removals-potential
abandoned/inaetive/uncontrolled sites.
A "state superfund-type'1 bill is currently before it» legislature,
§6308 added 1985)
for responding lo
STATE AGENCY
Department of Natural Resources and
Environmental Control (DNREC), Division of
Air and Waste Management, CERCLA Branch
has 16 staff funded through EPA giants.
Legal support is provided by the AG's office
with at least 50% of two (2) attorneys assigned
to CERCLA work.
FUNDING
No funding vehicle for long-term cleanups.
Legislative appropriations fund emergency
response and removal activities. Appropriations
currently $12SK annually. State CERCLA match
also through legislative appropriations.
120
-------
DELAWARE (continued)
ENFORCEMENT
State relies on "imminent hazard" provisions
in its Hazardous Waste Act, a RCRA-type
statute, for authorities including orders for infor-
mation, site access, subpoena authority, adminis-
trative order authority, injunctive action, civil
penalties, cost recovery, criminal penalties.
CLEANUP POLICIES AND
CRITERIA
DNREC follows EPA guidances.
CLEANUP ACTIVITIES
Five (5) NPL State-lead cleanups ongoing.
PUBLIC PARTICIPATION
DNREC has an active program that follows
requirements of Federal statute at NPL sites.
FEDERAL/STATE
PARTNERSHIP
SMOA signed 10/88. FY88 CORE
State also receives CA and MA grants.
Grant
121
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
7
3
Sites registry
identical to NPL
Approx. 300--
State master list
identical to CERCLIS
MARYLAND
[8/11/89]
STATUTE
Awatat&t Cede of Mtaytend, Environment Anfrk, Tifte ?-Haz$nto»$ MaSafiat and Hazardous Substances,
Subtitle 2-Coottolled Hazardous Substances, |§7-201 through 7*268 (1982* amended 1982, 1984, 1985,
1986, 1987 and 1989) provides for Hazardous Substance Control Fund and enforcement authorities.
STATE AGENCY
Department of the Environment (MDE),
Hazardous and Solid Waste Management
Administration, CERCLA/UST/LUST Program
has two divisions: (1) CERCLA Preremedial
Division, with approx. 20 full-time staff; and (2)
CERCLA Response Division, with 15 full-time
staff. 25 of these are professionals. There is
one (1) full-time community relations staff
person. AG's office has staff located at MDE,
two (2) attorneys devote approx. 75% of time to
CERCLA. Administrative costs from CORE
grant, appropriations.
FUNDING
Subaccount of State Hazardous Substance
Control Fund is funded by three (3) bond
issuances of S2.5M each. Fund balance of
S7.25M. No cap on Fund. To date the
subaccount has not been used. Department has
made first request to Board of Public Works to
allocate $2.5M to 15 projects. Fund monies
can be used for emergency response, studies
and design, remedial actions, operations and
maintenance and State CERCLA match.
Authorization required prior to expenditure.
122
-------
MARYLAND (continued)
ENFORCEMENT
No prerequisite to enforcement action,
however, the State prefers use of administrative
settlement The Department sends a demand
letter with a time-frame for compliance. AC
may bring cost recovery action on an apportion-
ment basis when there is reasonable basis for
determining contribution. Recovery otherwise
not apportioned. Statute authorizes orders for
entry and search but not for information.
State has injunctive action, corrective action,
consent order, and civil penalty authority.
CLEANUP POLICIES
AND CRITERIA
State hazardous waste regulations and State
hazardous substances response plan being
updated to include cleanup standards.
CLEANUP ACTIVITIES
Two (2) state-lead NPL sites.
PUBLIC PARTICD7ATION
No formal requirements or informal
procedures.
FEDERAL/STATE
PARTNERSHIP
SMOA in negotiations phase. State received
CORE Grant in FY89. CAs obligated at four
(4) sites.
123
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
71 [+5 sites cleaned
up and delisted]
24
no sites listed yet
2182 with completed PA
113 awaiting PA
PENNSYLVANIA
[8/11/89]
i • : : .: . j; i STATUTE
The Hazardous Sites Cleanup Act (HSCA)
-------
PENNSYLVANIA (continued)
ENFORCEMENT
The HSCA has comprehensive order and in-
junctive authorities, civil penalties, criminal
penalties, treble damages, and orders for infor-
mation and access. The HSCA 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
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, section 1301 requires DER to exhaust
its cleanup authorities under other state laws
(e.g. Clean Streams Law, Solid Waste Manage-
ment Act) against owners or operators before it
may do HSCA enforcement or cost recovery
against RPs.
CLEANUP ACTIVITIES
State has completed 2182 PAs at CERCLIS
sites. Approximately half require no further
action. Only 113 sites still need PAs. State has
lead at 14 NPL sites for RI/FS. State has
cleaned up four (4) State sites since HSCA with
the HSC Fund.
CLEANUP POLICIES
AND CRITERIA
Until the State promulgates its own
standards, HSCA provides that SARA §121
applies. On a case-by-case basis DER may add
more stringent standards, or it may waive or
modify otherwise applicable requirements under
HSCA §504.
PUBLIC PARTICIPATION
DER must take public comment and hold
public hearing on administrative record for
remediation. DER must respond to all signifi-
cant comments in making its decision on the
record. However, interim response action can be
taken for 30 days without an administrative
record being initiated.
HSCA has citizen suit provision.
FEDERAL/STATE
PARTNERSHIP
No SMOA; no CORE grants. Multisite
cooperative agreement for six (6) RI/FS.
Another cooperative agreement for PA/SI. State
also receives MA Grants. TAG awarded at one
(1) site.
125
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
11 [+1 cleaned up
and delisted]
140 in CERCLIS
through site
investigation phase
VIRGINIA
[8/11/89]
•'• "- STATUTE
Virginia Waste Management Act, Va. Code §§10.1-1400 through 10,1-1457 (1986, amended 1987 and 1988),
provides for the Solid and Hazardous Waste Contingency Fond for emargency response, stofies and design,
remedial actions, and State CERCLA match.
STATE AGENCY
The Department of Waste Management,
Division of Administration and Special
Programs, has three (3) branches dealing with
site cleanup: (1) the State cleanup program with
five (5) staff; (2) the pre-remedial program with
nine (9) staff; and (3) the Superfund remedial
program with 10 staff. The first program is
State-funded, while the remaining two (2) are
Federally-funded. State branch funded by
appropriations. The Department works with the
AG's office for enforcement and relies on the
Dept. of Emergency Services (under the Secre-
tary of Transportation and Public Safety) for
construction support on response actions.
FUNDING
Solid and Hazardous Waste Contingency
Fund contains $90K. The major source of the
Fund is solid and hazardous waste penalties and
fines. An initial 2-year appropriations of $2M
allocated for program support costs, not the
Fund. There is no cap on the Fund. The Fund
is authorized for emergency response, studies
and design, remedial actions, operations and
maintenance and State CERCLA match.
126
-------
VIRGINIA (continued)
ENFORCEMENT
State has statutory authority for administr-
ative orders, consent orders, injunctive action,
civil penalties, and cost recovery. The State also
has a lien provision and authority for criminal
penalties. The State's preferred enforcement
method consists of obtaining voluntary cleanup,
without a consent order. 28 RP cleanups
(voluntary) currently underway. No enforce-
ment or cost recovery to date-first enforcement
action planned for 1989.
CLEANUP POLICIES
AND CRITERIA
Cleanup standards are guided by health
assessments and State ARARs. Health assess-
ments performed by staff lexicologist. Risk
level of 10s is generally considered a baseline
cleanup level.
CLEANUP ACTIVITIES
State has lead at four (4) NPL sites.
State also actively involved in groundwater
modeling and innovative technologies at EPA-
lead NPL sites.
PUBLIC PARTICIPATION
No formal requirements or informal
procedures.
Community relations plan and administrative
record requirements for contested sites and fund
sites in draft form.
FEDERAL/STATE
PARTNERSHIP
SMOA signed 9/88.
and FY89 CORE Grants.
sites.
State received FY88
CAs obligated at 20
127
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
5
1
304 sites
on CERCLIS
WEST VIRGINIA
[8/11/89]
STATUTE
Waste Emergency Response FwdAct,yt?f*, Code §§2Q-5CH
emergency response and State CERCLA match. |
i>f
STATE AGENCY
The Division of Waste Management, within
the Department of Natural Resources, contains
the Site Investigation and Response Unit. Unit
contains 7.25 FTE staff working on four (4)
programs: (1) pre-remedial PA/SI; (2) remedial;
(3) CORE programs; and (4) emergency
response. There is an additional enforcement
unit within the Waste Management Division
with four (4) staff serving hazardous waste and
solid waste. The AC provides legal support with
one (1) staff member. State administrative costs
allocated from Fund.
FUNDING
Hazardous Waste Emergency Response Fund
contains $1.3M ($800K encumbered for one site
10% match). Main source of Fund is hazardous
waste generator fees assessed on 71 generators
in State. Fees set annually to approach revenue
limit of $SOOK per year and to maintain at least
$1M at the beginning of the calendar year.
Generator assessments cease if unobligated
balance exceeds $1.5M at year end. (Fees start
again when balance reaches $1M.)
Fund may be used for emergency response,
operations and maintenance and State CERLCA
match. The Fund may not be used for studies
and design or for other preparations for
remedial actions unless the Fund balance
exceeds $1M and the expenditure does not
reduce the balance below $1M.
128
-------
WEST VIRGINIA (continued)
ENFORCEMENT
Prior to Fund expenditure, director must
make "reasonable efforts" to secure agreements
from O/O or other RPs to pay cleanup and
remedial action costs. All monies collected
pursuant to enforcement action or cost recovery
deposited in Fund. No enforcement action or
cost recovery taken to date. Under Fund statute,
State has authority only for cost recovery, and
interest collection for unpaid/late paid generator
fees. Other enforcement action taken under State
RCRA equivalent
CLEANUP POLICIES
AND CRITERIA
Not developed.
CLEANUP ACTIVITIES
No NPL State-lead sites.
Ten Sis underway since 1988, almost 200
PAs completed since program inception.
PUBLIC PARTICIPATION
No formal requirements or informal
procedures.
FEDERAL/STATE
PARTNERSHIP
Draft SMOA. CAs and FY88 CORE Grant
awarded.
129
-------
REGION IV
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
130
-------
SITES
NPL sites
Proposed NPL
suspected and
unconfirmed sites
10
2
500+
ALABAMA
[5/2/89]
STATUTE
Hazardous Substance Cleanup fund (S. 132) (19$&)
establishes cleanup fond.
provides enforcement authorities and
STATE AGENCY
Alabama Department of Environmental
Management, Special Projects Office has no
staff authorized for State Superfund. Two (2)
in-house attorneys are assigned to RCRA and
Superfund, but work primarily on RCRA. The
AG's office assists on investigations.
FUNDING
Alabama Hazardous Substance Cleanup Fund
has a balance of $100K from FY89 appropria-
tions. $500K authorized for cleanup but not
appropriated. Cost recoveries and penalties/fines
accrue to Fund.
Fund may only be used at sites that are not
on NPL at time activity starts. Fund primarily
used for small-scale emergency removals of
drums.
No cap on Fund.
131
-------
ALABAMA (continued)
ENFORCEMENT
Liability is proportional, not joint and
several, and State determines proportional con-
tributions; if it cannot it must file declaratory
action and court determines proportions.
Legal authorities include administrative and
site access orders, civil penalties, and cost
recovery. Criminal penalties are available only
through the regulatory programs but not the
cleanup statute. Hearing required before issuance
of administrative order unless imminent threat to
human health or environment State prefers
voluntary agreements with RPs, if not it takes
small-scale removal actions itself or refers the
case to air or water programs for enforcement.
CLEANUP POLICIES
AND CRITERIA
"Necessary to protect human heath and the
environment" but, in practice, use site-specific
risk assessments.
CLEANUP ACTIVITIES
State has only conducted removals.
PUBLIC PARTICIPATION
30-day comment period on Cleanup Plan
required by statute. Single publication of notice
in paper in county. Hearings required prior to
issuing AO unless imminent threat to human
health.
FEDERAL/STATE
PARTNERSHIP
State has a SMOA, CORE Grants, and CAs
for PA/SI.
132
-------
SITES
NPL sites 32
Proposed NPL 15
State list 500+ (less than CERCLIS)--
all sites have some evidence of
contamination, but are not scored.
FLORIDA
[8/11/89]
STATUTES
1, FterifaPotttttwt &ti
-------
FLORIDA (continued)
ENFORCEMENT
Legal authorities include strict, joint and
several liability, administrative and consent
order authority, and cost recovery. Civil
penalties available under hazardous waste
statute. No authority for information orders or
site access orders. Department does not have
unilateral order authority. Enforcement process
includes warning notices, consent orders, notices
of violations, civil suits and appeals.
CLEANUP POLICIES
AND CRITERIA
Site-specific based on risk assessments and
any existing standards. Cleanup to water
standard or ambient quality.
CLEANUP ACTIVITIES
State-lead cleanups on about 50% of NPL
sites. Ten State cleanups completed, work in
progress on 28 sites. 200+ RP cleanups in RI
phase, 40 in RA phase.
50% of State sites addressed by RPs, 25%
need no action, 25% are State lead.
PUBLIC PARTICIPATION
No citizen participation or administrative
record requirements. Involvement varies on site-
specific basis.
FEDERAL/STATE
PARTNERSHIP
No SMOA. No CORE Grants. CAs awarded.
134
-------
SITES
NPL sites
Proposed NPL
Total identified
State sites (GAO)
7
6
753
GEORGIA
[5/15/89]
I STATOTE
Georgia Hazardous Waste Management Act, OA Code Ann. §§12-8-60 ftrcogb 12-8-83 (197$) establishes
the Hazardous Waste Thrust F»nd and authorizes cleanup by State and makes generators, transporters, and
ownCTs/operators liable. This is primarily a regulatory statute as is the program. Statute amended effective
7/1/89 to increase public partlcipaiion.
STATE AGENCY
Land Protection Branch of the Environmental
Protection Division of Department of Natural
Resources. No staff for State or Federal Super-
fund. Entire hazardous waste program is RCRA
oriented with 41 staff. All legal support handled
by Department of Law, with four (4) attorneys
and one (1) supervisor for all of DNR's work.
FUNDING
Hazardous Waste Trust Fund has a balance
of about $2M, funded from settlements with
RPs and all penalties. Amounted collected per
year is rising, approximately $500K FY88.
Virtually all hazardous waste activities are
through RCRA 75% EPA grant with 25% State
match.
Trust Fund may not be used for normal
operating expenses, must be used only for
mitigating environmental problems.
135
-------
GEORGIA (continued)
ENFORCEMENT
State RCRA/HSWA corrective action pro-
vision is major authority used to obtain
cleanups. Provision covers more than RCRA.
Past or present generators, transporters and
owner/operators who contribute to a release are
liable.
Statute requires agency to seek consent order
first RCRA statute includes authority for site
access, information gathering, subpoenas, admin-
istrative orders and injunctive actions. No lien
authority or punitive damages.
CLEANUP POLICIES
AND CRITERIA
All cleanups under State's RCRA corrective
action authority. State corrective actions must be
consistent with RCRA and CERCLA.
CLEANUP ACTIVITIES
All cleanups done under State's RCRA/
HSWA permit program. 80 RCRA permits with
75% required to do corrective action. About 40
are active.
PUBLIC PARTICIPATION
Statute requires consistency with Federal
RCRA and CERCLA. Local officials must be
notified of RCRA permit applications and a
hearing held if requested more than 25 persons.
FEDERAL/STATE
PARTNERSHIP
Grant for 22 sites under EPA's Environ-
mental Priorities Initiative. Had CA to do PA/SI
until 12/88 when decided to concentrate on
RCRA. No CORE grants or MA grants.
136
-------
SITES
NPL sites
Proposed NPL
Potential sites
12
5
500
KENTUCKY
[4/28/89]
STATUTE
Rev. Stat. Ann. §224.876X13) <1980) establishes die Hazardous Waste Management Fand. Other
224 outline ^on^oieiiiE aafeoiities, i r i ;
STATE AGENCY
Division of Waste Management, Uncontrolled
Waste Sites Section has three (3) full-time pro-
fessional staff plus one (1) clerical staff for
NPL sites, and nine (9) staff under PA/SI grant
Two (2) attorneys in the Natural Resources and
Environmental Protection Cabinet assigned to
division.
FUNDING
Hazardous Waste Management Fund has a
balance of $2.2M with $200K collected annually
from penalties/fines, cost recoveries, interest,
generator fees and transfers from the Abandoned
Nuclear Waste Site Fund.
There is a $6M cap on Fund, with fees
suspended until Fund balance falls below $3M.
Fund unavailable unless RPs unable to
address site and there is imminent danger to
both health and environment. Fund may not be
used if Federal Superfund money is available
except in emergencies.
137
-------
KENTUCKY (continued)
ENFORCEMENT
Legal authorities include administrative,
information and site access orders, subpoena,
injunctive action, liens, civil and criminal
penalties.
Statute authorizes Cabinet to order cost
recovery or compel performance by "any person
responsible for release or threatened release of a
hazardous sustance."
State negotiates settlements, then, if settle-
ment not reached, issues administrative orders.
Enforcement efforts to date have focused on
removals.
CLEANUP POLICIES
AND CRITERIA
Cleanup to background, but, in practice, site-
by-site standard used in consultation with the
Air and Water Divisions.
CLEANUP ACTIVITIES
State actively involved in 70 sites.
PUBLIC PARTICIPATION
No formal requirements but try to involve
public as much as possible through public
meetings.
FEDERAL/STATE
PARTNERSHIP
State negotiating SMOA. CORE Grant
awarded. Five (5) CAs awarded in State and
one (1) TAG approved.
138
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
2
1
347 CERCLIS sites
MISSISSIPPI
[8/11/89]
STATUTE
Mississippi Solid Waste Disposal Act of 1974* amended numerous times (roost recently in 1987), Miss,
Code Ann,: |l?-17-29(4) jantf <®; enables State to take rehouse *ri0n twi Jfass fc «& ^ecffic Sipsrftjnd
law, 1988 Legislature created Pollution Emergency Fond §49-17-68 ml * UST Trust Fund, Miss, Code
i. §4947-401,
STATE AGENCY
Department of Environmental Quality,
Pollution Control Bureau, Hazardous Waste
Division has a RCRA and CERCLA section.
The CERCLA section has ten employees. These
positions are funded almost entirely by State
and Federal dollars. One (1) attorney from the
AG's office handles all Pollution Control Bureau
work. 1988 legislation authorized 20 positions
within DEQ. Four (4) of these positions were
allocated to the Hazardous Waste Division, with
three (3) of the four (4) in the CERCLA
section.
FUNDING
The Pollution Emergency Response Fund was
created in 1988 and has a balance close to
$300K. The Fund is authorized to receive
money from civil penalties from the pollution
regulatory programs, cost recovery and any
other sources. The Fund may be used to
mitigate, abate, cleanup or remediate pollution.
The State appropriates funds on a site-by-site
basis for CERCLA match.
139
-------
MISSISSIPPI (continued)
ENFORCEMENT
The Department must use its general enforce-
ment authorities or its authorities in other regu-
latory statutes to compel RP action and for
enforcement action. The Act provides that any
person responsible for creating immediate need
for remedial or cleanup action involving solid
waste shall be liable for the cost of such action
and that the Department may recovery its cost
of response.
State has RPs coming forward voluntarily
signing "Agreed Orders." Orders issued at each
stage of process outlining work to be done.
CLEANUP POLICIES
AND CRITERIA
State makes site-specific risk assessments and
follows standards such as MCLs when they are
available. Attempt is made to be consistent with
NCP.
CLEANUP ACTIVITIES
45 sites in RI/FS stage.
PUBLIC PARTICIPATION
No formal requirements but informal efforts
made. Local committees formed to keep abreast
of situation. Local governments and governor
notified when emergency order issued.
FEDERAL/STATE
PARTNERSHIP
State says they have a one-year SMOA in
place. Not confirmed by EPA data.
State has CORE Grant and CA for PA/SI.
140
-------
SITES
NPL sites
Proposed NPL
State Priority List Sites
Sites Listed in State
Inactive Hazardous Waste
Inventory
15
7
85
781 (excludes
NPL sites)
NORTH
CAROLINA
[8/29/89]
STATUTES
I, North Carolina Comprehensive Environmental Response AM, RC Gen. Slat §|130A-310 througn *
51042 (July 1987, amended June 1989), authorizes the Inactive Hazardous Sites Cleanup Fond and
provides authority to order RPs to conduct cleanup and to recover costs.
2. North Carolina Oil Po^vaim and Hazardous Substances Control Act of 1978, N,C. Gen, SM 11143-
215.75 through 215.103 {first passed 1973} provides a fund and authority & clean up releases similar
to §311 of the Clean Water Act
3. North Carolina Waste Management Act, N,C Gen. StaL §130S-306, authorizes the Emergency
Response Fund for emergency hazardous waste cleanup.
STATE AGENCY
Superfund Section of Solid Waste Manage-
ment Division of Environment, Health &
Natural Resources (DEHNR) has 20 positions
(two (2) vacancies; two (2) additional positions
added by '89 legislature; one (1) attorney and
one (1) clerical are in AG) and administers the
Inactive Hazardous Sites Cleanup Fund. The
Emergency Response Fund is administered by
the Hazardous Waste Section of the Solid Waste
Management Division. One (1) other attorney in
AG office handles State Superfund issues part
of her time. Twelve of the positions are funded
by CERCLA for PA/SI, five (5) are State-
funded, and three (3) are CORE.
The Environmental Management Division and
the Environmental Management Commission
administer the Oil or Other Hazardous Sub-
stances Pollution Protection Fund (OOHSPPF)
and the Oil Pollution and Hazardous Substances
Control Act.
Administrative support is derived from State
appropriations and Federal grants.
FUNDING
Inactive Hazardous Sites Cleanup Fund
(IHSCF) has a balance of $256K as of 8/28/89
and may be used for remedial actions, emer-
gency responses, removals, and studies and
design of responses. IHSCF funded by appropri-
ations of $100K FY87-88 and $500K FY88-89
and cost recovery (no cases yet), penalties, and
fees (but none have been established). No
appropriations to the Fund were made for
FY89-90. Monies in the Emergency Response
Fund above the $500K cap go into IHSCF.
Administrative support is from general appropri-
ations.
Oil or Other Hazardous Substances Pollution
Protection Fund (§143.215.87) may be used for
emergency responses, removals and actions at
LUST sites. It is funded by cost recovery, civil
penalties and fees (authorized).
Emergency Response Fund (§130A-306) is
funded solely by RCRA penalties and is capped
at $500K. It may be used for CERCLA match
(but hasn't been to date-special appropriations
have been used instead).
141
-------
NORTH CAROLINA (continued)
ENFORCEMENT
Secretary of DEHNR must seek voluntary
action by RPs before issuing orders or taking
direct action. Joint and several liability for oil
or hazardous substance discharges. Definition of
RP similar to CERCLA §107 with similar
defenses. State must show danger to public
health or environment and that it has complied
with statute in order to recover its costs.
Cap on liability of $3M for implementation
of RA program for RPs that volunteer. State
has authority to issue orders for information,
site access, subpoenas, and administrative orders
for monitoring, analysis and emergency
response. There is a general judgment lien
provision. Civil penalties for negligent discharge
of oil or hazardous substance. No punitive
damages. Register of Deeds records notice of
hazard and Secretary cancels it when hazard
eliminated.
CLEANUP ACTIVITIES
One (1) removal in SepL-Oct 1988. Five (5)
RP-lead cleanups in FY88-89.
CLEANUP POLICIES
AND CRITERIA
Site-by-site. Groundwater standards used and
are below detection limits for non-naturally
occurring organics.
PUBLIC PARTICIPATION
Statute requires Secretary of DEHNR to
develop plan for public notice and local
government involvement in RA program.
Secretary must also notify and involve local
board of health and health director. Notice and
summary of RA plan published weekly for three
weeks in local newspaper and copy of plan
filed with register of deeds before approval. 45-
day public comment period with public meeting
at discretion of Secretary. Public participation
requirements reduced for RP voluntary cleanup.
FEDERAL/STATE
PARTNERSHIP
Draft SMOA submitted to EPA Region IV.
PA/SI CA effective 4/1/89. Have applied for
MA grant for eight (8) sites. FY CORE Grants
also awarded.
142
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
14
7
42 (7/88) (all sites
with 0-28.5 HRS scores
are placed on list)
410 (CERCLIS)
SOUTH
CAROLINA
[8/11/89]
Hazardous Waste Management Act (1980), South Carolina Code Aim
Ann. §44-56-10-330 the more general cite), authorbes Fund
action, ;
J£C Code
to fe&e oic epinpel
STATE AGENCY
Department of Health and Environmental
Control, Environmental Quality Control, Solid
and Hazardous Waste Management Bureau has
five (5) divisions. The Site Engineering and
Screening Division has two (2) sections. The
Site Assessment Section, funded totally by a
CA has eight (8) staff who handle the PA/SI.
The Site Engineering Section has six (6) staff
funded mostly by State who handle State and
NPL sites. Legal support is located in the
Office of the Commissioner. Eight (8) attorneys
are assigned to geographical districts to handle
all environmental work.
FUNDING
Hazardous Waste Contingency Fund is
umbrella for two (2) separate accounts, the
permitted sites (RCRA) and uncontrolled sites
(Superfund). The latter account comprises
approximately 75% of the Fund. The unobli-
gated Fund balance in the uncontrolled sites pan
of the Fund was S4.2M as of 7/1/88. 80-90% of
revenues come from fees. Appropriations,
interest, cost recovery, and penalties also
contribute. Actions including emergency
response, removals, studies and design, investi-
gation, remedial action, O&M, and CERCLA
match, but excluding victim compensation may
be funded after Federal or RP dollars are
exhausted or unavailable.
143
-------
SOUTH CAROLINA (continued)
ENFORCEMENT
Statute explicitly adopts CERCLA §107 and
implicitly CERCLA in toto. To date, State has
only sought negotiated agreements.
Statute requires Department to exhaust RP
and Federal funds before using its own. Depart-
ment policy is to serve RPs notice with dead-
lines and inform EPA at same time.
CLEANUP POLICIES
AND CRITERIA
Baseline is background or drinking water
standards. Site-by-site decisions to be consistent
with the NCP.
CLEANUP ACTIVITIES
One (1) NPL State lead negotiating RI/FS
with RPs. Three (3) sites State funded in RI/FS
stage; negotiating RP lead on another site. RPs
voluntarily seeking consent decrees for several
other sites.
PUBLIC PARTICIPATION
No formal requirements or informal
provisions.
FEDERAL/STATE
PARTNERSHIP
SMOA signed 8/88 covering primarily NPL
sites. Currently being renegotiated to include
language on all sites, primarily for emergency
response. CAs, MAs, and FY88 CORE Grant in
place.
One or two TAGs may have been applied
for, but unsure of status.
144
-------
SITES
NPL sites 10
Proposed NPL 3
State list 281; 3 in rulemaking stage
unconfirmed sites 800-900 sites on State
suspected list analogous
to GERCUS
TENNESSEE
[8/11/89]
STATUTE
Tennessee ffattaritotts Waste Management Act o/ JS*Sl Amended 1986,19S8) (efcefl). Part I covets RCRA,
Part H (Teiuu Code Ann, ||<58-46-201 through -221) ©oven? SijjKrJpnd, fcrthorizes Jhe Hazardous Waste
Remedial Action Fund, and provides authority to take or compel remedial actions. 1988 amendments
required notice to register deeds for any site listed.
STATE AGENCY
Tennessee Department of Health and
Environment (DHE), Division of Superfund
(created 1/86) has four (4) regional offices with
a total of 63 staff authorized, SO established,
funding for 46; 37 are filled, recruiting for nine
(9). Superfund supports two (2) attorneys in
DHE and receives some AG attorney support on
a cost reimbursement basis.
Administrative costs are funded out of
Hazardous Remedial Action Fund and from
Federal grants.
FUNDING
Hazardous Remedial Action Fund had a
balance of $S.1M as of 9/1/88 with S2.1M
projected to remain as of 7/1/89. Fund is
comprised mostly of fees on transporters and
generators which must be matched equally by
an appropriation of equal value or the authority
to collect fees lapses. Cost recovery, penalties
and fines, and interest may also contribute.
Fund may be used for emergency response,
removals, remediation, studies and design,
O&M, and CERCLA match.
145
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TENNESSEE (continued)
ENFORCEMENT
Statute provides for strict and several liability
and AG equitably apportions liability. The
statute provides for a lien that is limited to
marginal improvement in cost of land and does
not have priority.
Director of DHE is authorized to issue orders
for information, access and remedial response,
assess civil penalties, and impose punitive
damages of up to 150% of the State's costs.
CLEANUP ACTIVITIES
668 PAs and 410 Sis (1/31/87) have been
completed for sites on State suspected list Two-
thirds (2/3) of sites determined not to be a
hazard to health and environment have been
placed on inactive list. RAs completed at one
(1) NPL and 12 State-listed sites. No completed
RAs at "significant" sites, numerous removals
and containments.
CLEANUP POLICIES
AND CRITERIA
No standards in Superfund statute. To the
extent practicable, remedies are consistent with
the NCP. Use State ARARs, seek compliance
with environmental laws, protection of human
health and environment and cost-effectiveness.
PUBLIC PARTICIPATION
Division has a policy of promoting public
participation but no formal procedures.
FEDERAL/STATE
PARTNERSHIP
SMOA in draft; CA, MAs, CORE Grant in
place.
146
-------
REGION V
Illinois
Indiana
Michigan
Minnesota
Ohio
Wisconsin
147
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
23 final
16
29
1325
ILLINOIS
[6/13/89]
Envirwunentgl
Hazardous Waste Fund and
recovery, and punitive daiijages.
civtl
1986, 1987, 1988) establishes
and criminal penalties, cost
STATE AGENCY
The Division of Land Pollution Control in
the Illinois Environmental Protection Agency
(IEPA) administers State cleanup program with
26 technical and six (6) management staff
working solely on Superfund. AG provides all
legal support for agency.
The Illinois Pollution Control Board (EPCB)
adopts all regulations to implement the Illinois
Environmental Protection Act, including State
contingency plan. IPCB also is only agency
authorized to issue unilateral orders but only
after a hearing.
FUNDING
There are three (3) sources of funds for
Superfund work: the Hazardous Waste Fund
(HWF), the Clean Illinois Program (CIP), the
Build Illinois Program (BIP).
The HWF, with a balance of $4.25M as of
1/1/89, receives 90% of the fees collected for
transportation and disposal of hazardous wastes
and monies collected in consent agreements. An
average of S1.2M is collected each year and the
Fund is capped at $10M in unobligated funds.
The HWF is primarily used for State work and
for CERCLA match. A separate Hazardous
Waste Research Fund is allotted the remaining
10% of fees. Fund can be used for emergency
response, removals, studies and designs,
remedial actions, and CERCLA match. No more
than $1M can be used on any single incident
without legislative appropriation.
The BIP is funded from a bond authoriza-
tion; the Agency must request BIP funds from
the legislature each year. Currently, $7M in BIP
funds obligated~$2M rollover from previous
year and $SM new appropriations.
The CIP funds originate from general
revenues with about $2.5M appropriated
annually. Funds are primarily used for the
operations cost of State.
148
-------
ILLINOIS (continued)
ENFORCEMENT
State has authority to issue notices for
information gathering and to enter sites; IPCB
may issue unilateral administrative orders after a
hearing. State is authorized to take injunctive
action and may impose civil and criminal
penalties. State may seek cost recovery and
punitive damages. IEPA requires written
notification of real estate transfers. State has
strict liability, with joint and several liability
assumed. State also has lien provision.
Approximately 65 §4(4) notices have been
issued through 4/89 for immediate removals and
voluntary cleanups. Approximately 60% of sites
are handled by RPs.
CLEANUP POLICIES
AND CRITERIA
Cleanup objectives set on a site-by-site basis
by two Agency committees. Initial standards are
set by a technical committee. These standards
are evaluated by an administrative management
committee based on other site issues; this
committee makes the final recommendation for
cleanup standards. An ARARs manual has been
published by State.
CLEANUP ACTIVITIES
Three (3) sites on State Remedial Action
Priorities List have completed RAs. Of the
approximately 1245 sites on State CERCLIS
list, 95% have completed PA, 65% have
completed SI, 25% require not further action.
IEPA has secured over 60 RP cleanups since
1984.
PUBLIC PARTICIPATION
Majority of Superfund sites and many RP-lead
sites are assigned community relations coordina-
tors from the Division of Land Pollution
Control
FEDERAL/STATE
PARTNERSHIP
CAs for 29 sites. MAs have been awarded.
Three (3) CORE Grants awarded.
SMOA in final development stage. No TAG
awarded.
149
-------
SITES
NPL sites
Proposed NPL
State list
suspected and
unconfirmed sites
30
7
No list yet; one under
development pursuant to
statute effective 7/1/89.
about 1200 on
CERCLIS
INDIANA
[5/15/89]
STATX3TES
Indiana Hazar4otts Waste 'A& C$805* Snvtranwntal Management Act* and Hwtardtiw Waste Land
Tax Ac/ (1981), combine to authorize cleanup activities in die State, Indiana Code |J3-7 et seq, and Ind
; Code §§6-6-6.6-1 teough -3. The statute was most rewnUy amended effectiive7/J^ jot(C^olida|e;;: aaifl
clarify cleanup provisions, require development of .$ Stelfc priority list, bcre$» ^:^:^:'ipa|tJfl|fy:''JfeniJ|''':
the cleanup fund, and provide new authority to the Commissioner including authority for mixed funding
consent agreements. I.' " .•,;;"v;''.' --'V !'• •':'-----'--'-":':-":
STATE AGENCY
Project Management Branch in Office of
Environmental Response in Department of
Environmental Management The State cleanup
section has nine (9) project managers and the
Federal sites section has 12. A technical support
section with 12 staff serves both sections and
LUST. Attorney General represents IDEM in all
proceedings, with 3-4 attorneys working on all
cleanup issues. IDEM has six (6) attorneys for
all cleanup work in the Branch.
FUNDING
Hazardous Substances Response Trust Fund
(§13-7-8.7-1 through -6) is funded by taxes,
penalties, cost recovery, punitive damages, gifts,
interest, grants, and appropriations (effective
7/1/89). Biennium beginning 7/1/89 legislature
authorized $5.7M ($2.85M/year) to be spent
entirely on site-specific activities. Administrative
costs come from general appropriations. There
is no cap on the Fund. Funds may be used for
studies, emergency actions, removals, remedial
actions, State CERCLA match and actions at
non-petroleum LUST sites, and preauthorized
mixed funding claims.
150
-------
INDIANA (continued)
ENFORCEMENT
CERCLA §107 is adopted as liability
standard-strict, joint and several. Commissioner
has authority to issue orders for information,
site access, and, under amendments effective
7/1/89, for unilateral administrative orders. The
State may also sue for injunctive relief, cost
recovery, punitive damages (effective 7/1/89),
civil penalties and criminal penalties. Effective
7/1/89 the Commissioner will be authorized to
enter mixed funding consent agreements. The
majority of cases have been agreed orders. No
cases have yet been decided by a court. Owners
of sites must record restrictive convenant with
County Recorder, and Commissioner determines
if one is necessary to warn future buyer.
CLEANUP ACTIVITIES
18 non-NPL sites currently active.
CLEANUP POLICIES
AND CRITERIA
No formal standards yet Policy is to be
consistent with NCP and statute will require
consistency effective 7/1/89. Use risk ranges of
105 to 10* or use MCLs and ARARs.
PUBLIC PARTICD7ATION
No formal rules yet All final orders subject
to comment period under Administrative Adjudi-
cation Act Policy is to be consistent with NCP.
New rules plan to include 60-day comment
period on final remedy selection and will
require local governments receive annual update
of new State priority list
FEDERAL/STATE
PARTNERSHIP
CORE Grant in FY88, 14 CAs and 12 MA
grants awarded.
151
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SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
65
15
2019 (FY90)
(add about 240/year)
2000-3000
(1/28/87)
MICHIGAN
[8/11/89]
" .. .:. . • .... • • - '••- h STATUTE • ' '
IHiehjgw Environmental Response Act fMERA* or *Acl 30T), Mieh, Cornp, laws Ann, §§299J601, et
seq., (1982) (amended 1984 to allow Department of Natural Resources (DNR) to reimburse individuals that
replaced own water supplies due to hazardous waste discharge), primarily intended to allow DNR to clean
op abandoned hazardous waste sites. Statute has no enforcement provisions^ directs AG to pursue cost
recovery but provides no legal remedy. State relies on air, water and hazardous waste regulatory laws far
cost recovery or enforcement authority. Emergency rules to administer program adopted in 2/89 expire 2/90,
proposed permanent rules in hearing. Bill in legislature would add enforcement authorities. Te» related
pollution control acts supplement cleanup program authorities.
STATE AGENCY
Environmental Response Division in Depart-
ment of Natural Resources leads cleanup and
response work. 24 positions for original State
program in 1984 and 54 positions added after
bond issue passed. Still hiring to fill the 54.
About 30 positions will be in central office and
about 40 in nine (9) field offices (15 of initial
24 were in field).
AG's office handles all legal work and the
State program uses approximately two (2)
positions. AG files all enforcement and cost
recovery actions. Michigan Department of
Public Health replaces water supplies on
contract with DNR.
FUNDING
Environmental Response Fund (§299.609) has
a balance of S6.3M but all but $1.7M is obli-
gated and State expects to obligate remainder by
6/30/89. ERF is funded by appropriations ($58M
'84-88 and $30.1M for FY89, bonds (voters
approved $425M 11/8/88), cost recovery and
CERCLA funds ($500K/year average).
Hazardous Waste Service Fund is also
funded by appropriations and may be used when
DNR declares hazardous waste emergency, but
none declared in past five (5) years.
152
-------
MICHIGAN (continued)
ENFORCEMENT
No enforcement authority or liability
provisions in MERA. State uses pollution
regulatory statutes and appends MERA cost
recovery claims.
Most RP lead response actions are negotiated
with DNR. 832 of sites on State list have RP
lead work.
Liens are authorized under the Hazardous
Waste Management Act (regulatory statute).
State first negotiates with RPs then seeks
Federal response and CERCLA funds prior to
using State funds.
CLEANUP POLICIES
AND CRITERIA
Current policy is "any detectable level" of
volatile organic compounds is unacceptable.
DNR has proposed rules that would be risk-
based using 107 for carcinogens and a 20% of
lifetime risk for non-carcinogens.
Remedy selected must achieve level such that
further cleanup would not reduce risk further.
State has a non-degradation standard for ground
water.
CLEANUP ACTIVITIES
607 actions at 388 sites by DNR since 1984.
389 were temporary or permanent water
replacement 49 RI/FS (9/30/88) costing $17.6M
completed. Six (6) RAs completed at $3.9M
(9/30/88). Estimate 250 RP lead RD/RAs.
PUBLIC PARTICIPATION
Public hearing when State list updated.
Emergency rules in effect till 2/90 allow public
comment at delisting (but hearing not required).
Proposed rules would provide public hearing
during remedy selection. State models its system
on CERCLA.
FEDERAL/STATE
PARTNERSHIP
SMOA being negotiated. 61 CAs and 48
MAs awarded. CORE Grant application
submitted for FY90.
153
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
40
0
157
118
300
MINNESOTA
[8/11/89]
STATUTE
Minnesota Environmental Response
-------
MINNESOTA (continued)
ENFORCEMENT
MERLA requires State to seek RP cleanups
prior to use of MERLA Fund All cost recovery
and penalties/fines are returned to MERLA
Fund. Although State has no statutory authority
to issue administrative orders for information or
site access, MERLA requires RPs to answer
MPCA requests. State has had an estimated
$130M of RP cleanups at 73 sites conducted
through 6/30/88. $4.7M in costs recovered
since 1983, and seven (7) major lawsuits have
been filed.
CLEANUP POLICIES
AND CRITERIA
Cleanup decisions are made on a case-by-
case basis with similar criteria as the NCP. The
MPCA seeks a cost-effective cleanup and uses
ARARs. A 105 cancer risk factor is used in the
absence of applicable standards. The Depart-
ments of Health and Agriculture are consulted.
A groundwater bill which would set standards
currently passed during the last legislative
session. A non-degradation policy applies to
cleaner sites.
CLEANUP ACTIVITIES
MPCA has lead for all but two (2) NPL
sites, with RI/FSs averaging 18-24 months and
S300-500K. RD averages 6-10 months and RA
averages 12-18 months and $1-8.5M. There
have been response actions at 104 sites since
1983. 38 sites have RA completed with O&M
in place. 11 sites have been delisted.
PUBLIC PARTICIPATION
Entire process is public with notification of
RPs and approval of all State actions at a
public meeting of Pollution Control Board.
As a matter of policy, MPCA conducts
public meetings after completion of the RI/FS.
FEDERAL/STATE
PARTNERSHIP
SMOA development is underway. FY88
CORE Grant, no TAG grants awarded. CAs and
MAs awarded to date.
155
-------
SITES
NPL sites
Proposed NPL
State list (informal)
suspected and
unconfirmed sites
29
3
430 (includes
NPL sites)
1074
OHIO
[8/11/89]
STATUTE
Ohio Solid and Hazardous Waste Disposal law, OJNio Key.Qxte §5^34.01
contains provisions for two cleanup funds and enforcement authorities.
$88}
STATE AGENCY
The Office of Corrective Actions and Office
of Emergency Response in the Ohio Environ-
mental Protection Agency (OEPA) jointly
administer the cleanup program. These offices
will be merged in FY90.
The Office of Corrective Actions has 52
authorized positions with several current
vacanies. The Office of Emergency Response
has 18 staff.
Program has four (4) full-time staff attorneys,
AG's office supplies three (3) full-time Assistant
AGs plus 2-3 FTEs (funded by OEPA).
FUNDING
State has two (2) Funds available for
cleanups; Hazardous Waste Cleanup Fund has
about $7M balance. Approximately 20% is from
penalties and 80% from solid waste disposal
fees. Money recovered from RPs also goes into
HWCF, but has been insignificant to date. This
Fund is used for day-to-day activities. The Fund
may also be used to build additional hazardous
waste facilities and to buy sites. Hazardous
Waste Facility Management Fund has a balance
of about $13M, all from fees although
recovered costs may return to the Fund. This
Fund is used for CERCLA 10% matching
funds, State level-of-effort contracts and non-
investigatory emergency response actions.
Approximately $12M/yr in fees is collected
and distributed between the two funds according
to a sliding scale that considers where the waste
was generated and disposed.
156
-------
OHIO (continued)
ENFORCEMENT
Statute is silent on liability standard; OEPA
has argued for strict, joint and several liability
but no decision in pending court case. 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. There is no provision for punitive
damages.
The State is prohibited from taking action if
USEPA is pursuing a claim.
State must attempt to reach a consent agree-
ment with an owner/operator before OEPA may
do the work. State does not mix State and
Federal claims. State prefers to use CERCLA
§107 for cost recovery.
CLEANUP ACTIVITIES
Approx. 85 sites being addressed (most in
RI/FS stage), two (2) sites are in RA construc-
tion phase.
CLEANUP POLICIES
AND CRITERIA
State ARARs apply, standards consistent with
EPA, 10* risk from carcinogens and less than
one non-carcinogen case.
PUBLIC PARTICIPATION
Limited statutory authority; policy to expand
public participation under development Current
policy is to be not inconsistent with NCP.
FEDERAL/STATE
PARTNERSHIP
SMOA in draft. Four (4) CAs and four (4)
MAs awarded. First TAG in Region V made to
citizen group at Industrial Access site.
157
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
35
4
60 (including NPL)
173 (7/87 inventory)
2700 known landfills
WISCONSIN
[8/11/89]
: .;. ... "; . . :: .. STATOTES: :—''vj •-'•- ---,,':: --H;^. ....':"
I. Environmental Repair Statute, Wis. Stat §144^442 (1984). Enacted as; part of the GflJibdwater bill,
this section creates the Environmental Repair Fund, requires a State ranking system and authorizes
DNR to take emergency and remedial actions, recover costs and obtain RP lead cleanups.
2. Abandoned Containers Statute, Wis. Stat §144.77: (1987), authorizes J8SR to »se money; appropriated
for ERF to remove and dispose of abandoned containers that have hazardous substances. : :
3. Hazardous Substance Spill Statute, Wis. Stat §144J6;(?), authorizes P&R to use money; appropriated
for ERF to respond to discharges of hazardous substances, requires development of a contingency
plan. • i ....=.'- ---; : • • -- ' • - ; •
The State also uses authorities under solid waste law and assorted regulations, f ;
STATE AGENCY
Department of Natural Resources, Bureau of
Solid and Hazardous Waste Management,
Environmental Response and Repair Section,
Superfund Response Unit with 17 FTE in head-
quarters and 23 field officers. It is a decen-
tralized program with no direct supervision of
field offices. About 40 staff total.
Legal support comes from two (2) attorneys
in the DNR's Bureau of Legal Services and on
a case-by-case basis from the environmental unit
of Wisconsin's DOJ (3-4 attorneys).
FUNDING
The Environmental Repair Fund (ERF) has a
balance of $3.7M as of 6/30/89. $4.2M was
appropriated in FY89 with $1.7M carryover. A
variety of fees provide more than $1M annually
and cost recovery actions and interest also
contribute.
Legislature established separate account for
funds from cost recovery and oversight ($300K
in FY89) to be used for "administration of
program." Primarily used to fund safety
equipment and training.
ERF may be used for emergency response,
removals, O&M, CERCLA match, and studies,
designs and construction of remedies. Construc-
tion of remedies is subject to prior administra-
tive hearing and judicial review.
158
-------
WISCONSIN (continued)
ENFORCEMENT
The State has strict liability under the Aban-
doned Container and Spill Laws but under the
Environmental Repair Statute the standard is
explicitly not strict The burden of proof is on
the State.
The State estimates a 65% rate of RP
cooperation. When they don't comply the State
tries to initiate a Federal Superfund or LUST
action at the site. As last resort will use ERF
for a State-funded action when RPs are non-
existent or insolvent.
CLEANUP ACTIVITIES
Either State or Federal action underway at all
but three (3) of NPL sites. 11 Fund-financed
NPL sites. 40 State-funded projects ongoing.
CLEANUP POLICIES
AND CRITERIA
Have promulgated groundwater standards in
NR140 with a minimum enforcement standard
and a prevention action standard. Also have
internal guidance on soil and groundwater
remedies. Department of Health does risk
assessments at sites where promulgated
standards do not apply.
PUBLIC PARTICIPATION
The State list is subject to public notice, 30-
day comment period and hearing requirements.
Remedial actions are subject to public notice
and a public hearing if requested within 30
days. There have been no formal challenges by
the public to State-funded RAs.
FEDERAL/STATE
PARTNERSHIP
SMOA under negotiation to cover remedial
and preremedial actions. Have a "mini SMOA"
on State enforcement lead. State received CAs
covering 17 sites, CORE Grant, and MAs
covering 12 sites.
159
-------
REGION VI
Arkansas
Louisiana
New Mexico
Oklahoma
Texas
160
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
10
0
7 (includes 2 NPL)
5
26
ARKANSAS
[6/14/89]
STATUTES
The Rew&al Action Trust Fwd Act (RATFA) {Act 479 of 1385* as amended by Acts 380, 761 of
1987) establishes the Hazardous Substance Remedial Action Trust (HSRAT) Fund, which replaced the;
Hazardous Substance Response Trust Fund (enacted in 1983). L '•'
Emergency Response fund Act (ERFA) (Act 432-F of 1985) establishes the Emergency Response
Fund (ERF). Both RATFA and ERFA provide for {ffopottional liability, civil and criminal penalties,
treble damages, cost recovery, and
STATE AGENCY
The Superfund Branch of the Hazardous
Waste Section is located in the Dept. of
Pollution Control and Ecology. The Branch is
staffed by 1.5 employees, with legal support
available from Dept. attorneys. A staffing freeze
has limited program operations.
FUNDING
HSRAT Fund, with balance of $1.6M
(5/15/89) derives primarily from annual fees
(approximately $400K/year) on hazardous waste
generators within State or those accepting waste
generated outside State for transport/storage/
disposal. The Fund also receives some revenues
from penalties and some appropriations.
HSRAT Fund can be used for studies and
design and remedial actions at State-listed sites,
and for CERCLA match. (Approximately 80%
is designated in 1989 far CERCLA match.)
The ERF is used only for emergency response
action and is funded by civil penalties. It is
capped at $150K; funds accruing above this
level are deposited in the HSRAT Fund.
161
-------
ARKANSAS (continued)
ENFORCEMENT
RATFA provides State authority to issue
administrative orders for information, site
access, and remediation. Although injunctive
action is not expressly provided for, State may
proceed under RCRA-type law. RATFA autho-
rizes civil and criminal 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 orders, treble damages, cost
recovery and superliens.
CLEANUP POLICIES
AND CRITERIA
Air and water regulations used as standards
for hazardous waste cleanup.
CLEANUP ACTIVITIES
State has lead on one (1) NPL site which is
currently in RD phase.
PUBLIC PARTICIPATION
Public hearing may be held on site listing.
Comments received on site become part of
administrative record.
FEDERAL/STATE
PARTNERSHIP
MSCA for three (3) sites, CAs for eight (8)
sites. Eight (8) MAs. A CORE Grant was
awarded in FY88.
162
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
9
2
should be promulgated
by the end of 1989
506 on CERCLIS
LOUISIANA
[5/12/89]
STATUTES
Several Chapters of the Louisiana Environmental Quality Law, La. Rev, StaL Ann. §§200l-2J9l (1979),
provide relevant authority. Tte Hazardous Waste Control law {La. Rev, Stat. Ann. §§2171-2206), Inactive
and Abandoned Hazardous Wast* Site Law (La, Rev. Stat Arm. §§2221-2226), and chapter 12 entitled
Liability for Hazardous Substance Remedial Action (La. Rev, Slat, Ann, ||2271-2280), together establish
several funds and provide fte strict, joint and several liability- information-gathering', administrative order
authority; injunctive reM; cost recovery; Hens; and treble damages. Site access and civil and criminal
penalties are provided by the ^ Environmental Quality Law's general enforcement provisions.
STATE AGENCY
The Inactive and Abandoned Sites Division
in the Department of Environmental Quality's
(DEQ's) Office of Legal Affairs and Enforce-
ment is the lead agency. The Division has 19 of
its 25 authorized positions currently funded.
About 80% of the Division's S5.9M budget is
federally funded.
FUNDING
The primary cleanup fund is the Hazardous
Wate Site Cleanup Fund. The Fund's balance is
$0 (5/89); in 1987, monies from all funds not
constitutionally protected were divested by the
legislature due to budgeting difficulties. In
normal times, the Fund's primary source of
monies is penalties, with some funding from
appropriations, cost recovery, and gifts. The
Fund can be used for emergency response,
removals and remedial actions, studies and
design, O&M, and CERCLA match.
Two other funds, which were not divested,
are the UST Trust Fund and the Motor Fuels
Underground Tank Trust The UST fund is used
for administrative costs associated with the UST
program and UST cleanups. The Motor Fuels
Trust can be used for certain UST response
actions when the UST owner is in compliance
with State law.
163
-------
LOUISIANA (continued)
ENFORCEMENT
The State will negotiate a settlement with
PRPs or issue a remedial demand order
wherever possible. The State has administrative
order and injunctive authority, cost recovery,
liens, treble damages; and has strict, joint and
several liability. The State has the lead at one
(1) final NPL site; there is a State-lead enforce-
ment agreement at one (1) of the proposed sites.
CLEANUP ACTIVITIES
Of the 17 completed RAs, 15 were con-
ducted by PRPs at a total cost of $15M, and
two (2) were State-funded.
28 PRP-lead cleanups are scheduled at an
estimated cost of $200M. An additional 24 site
cleanups are expected to cost $800M.
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
environment DEQ makes substantial use of
EPA procedures and guidance. Aim for
permanent remedies.
PUBLIC PARTICIPATION
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. Prior to
concluding settlement agreements, DEQ makes
them available to the public and holds public
meetings.
FEDERAL/STATE
PARTNERSHIP
SMOA signed 3/88. One MSCA covering
seven (7) sites; 10 site-specific CAs. Nine (9)
MAs incorporated into MSCA. No TAGs.
CORE Grant for FY88.
164
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
6
4
Same as CERCLIS list
NEW MEXICO
[5/10/89]
STATUTE
Hazardous Waste Emergency Fund, MM Stat, Aim, 74-4-8 within ttazarfaw Waste Ac(>
744*1 to 74443 (1988) provides funds for removals, emergencies, and State
enforcement authorities.
STATE AGENCY
The Department of Health and the Environ-
ment, Environmental Improvement Division,
Bureau of Hazardous Waste has three (3)
divisions: (1) UST; (2) RCRA-Hazardous Waste,
with four (4) staff on permits and corrective
action; (3) Federal Superfund with IS staff. The
Superfund program is supported by $1.5M in
Federal funds.
OGC provides legal support with additional
special AGs housed in DHE. Approx. 1.5 FTE
of legal support works on hazardous waste
cases.
FUNDING
Hazardous Waste Emergency Fund funded by
appropriations, bonds, cost recovery, and
penalties and fines. Balance in the Fund approx.
S320K. No cap on the Fund. Penalties and fines
are the only continuing source of funds.
Funds can be used for emergency response,
studies and design for emergency and removal
response, State CERCLA match, and remedial
actions pursuant to court action. No State long-
term cleanups.
165
-------
NEW MEXICO (continued)
ENFORCEMENT
Enforcement authorities include orders for
site access and information, administrative and
consent order authority, injunctive actions, civil
penalties and cost recovery authority.
Statutory standard interpreted as joint and
several. No cases litigated to date.
Preferred enforcement method includes
sending notice of violations with a time period
for compliance and a proposed penalty or
injunction.
CLEANUP POLICIES
AND CRITERIA
No promulgated standards-use State ARARs,
particularly GW standards and water quality
rules.
CLEANUP ACTIVITIES
No State-lead NPL sites.
PUBLIC PARTICIPATION
State follows CERCLA/NCP procedures at
NPL sites.
FEDERAL/STATE
PARTNERSHIP
SMOA signed 12/87. CAs, MSCA, and MA
Grants, CORE Grant in FY88.
166
-------
SITES
NPL sites
Proposed NPL
State list
Total identified State
sites (GAO)
8
3
11 (NPL)
30
OKLAHOMA
[5/25/89]
STATUTES
I. Controlled Industrial Waste Disposal Act
-------
OKLAHOMA (continued)
ENFORCEMENT
Orders for site access are provided under
general authorities granted to the Department of
Health. The State has authority to issue sub-
poenas, administrative orders, and consent
orders under a general procedures law.
CIWDA authorizes injunctive action and both
civil and criminal penalties. No cost recovery
except under Federal CERCLA.
CLEANUP POLICIES
AND CRITERIA
Air and water cleanup levels are determined
on a site-by-site basis.
CLEANUP ACTIVITIES
RA completed at one (1) NPL site under the
direction of State Water Resources Board.
PUBLIC PARTICIPATION
No formal requirements or informal
provisions.
FEDERAL/STATE
PARTNERSHIP
SMOA in process. CAs cover nine (9) sites,
MSCAs for five (5) sites. CORE Grant awarded
FY88. Eight (8) MAs awarded.
168
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
24
4
29 (28 Non-NPL)
over 350
over 1000
TEXAS
[7/12/89]
'" • ;f."7'."^ STATUTE
The Texas Solid Weste tyytiwtAet, Tex. Health & Safety Code Ann, Art* 4477-7, was amended in 1987
to establish the Hazardous Waste Disposal Fee Fund (Fund 550), In 1989 the statute was substantially
amended to strengthen the Fond program and its enforcement provisions, Texas also has 8 Spill Response
Fund* established under the i ttezantows Substances Spill ftevenlioti & OjnfcOl Act, fexas Water
126.261 et seq. (amended 1983,1985).
STATE AGENCY
Texas Water Commission, Hazardous &
Solid Waste Division, Contract & Remedial
Activities Section--33 positions. There are five
(5) staff devoted to the State list Superfund
program; the remainder work on NPL and pre-
remedial programs, and LUST. Commission
legal staff and three (3) attorneys with the
Attorney General's office provide enforcement
support as needed. The Fund covers administra-
tive costs for the State-list Superfund unit
FUNDING
Fund "550" has a balance of $11-12M (as of
5/89) and is primarily funded by fees on
hazardous waste disposal. The Fund also
receives interest, cost recovery, penalties and
interest on late fees. Revenues are
approximately $7M/year.
The Spill Response Fund receives appropria-
tions, and fines and penalties under the Texas
Water Code. It is capped at $5M, exclusive of
fines and penalties.
169
-------
TEXAS (continued)
ENFORCEMENT
Comprehensive order and injunctive author-
ity, civil penalties, cost recovery, liens, de
mnims settlement, mixed funding, double
damages are available to State. Liability is joint
and several unless proved by preponderance of
the evidence to be "divisible."
Commission issues a notice of proposed
listing of the site and gives 90 days for RPs to
offer to do RVFS and 60 days thereafter to
negotiate agreed order; if not, then RI/FS is
financed by State Fund. After RI/FS is
completed, the Director proposes a remedy,
solicits public comment and holds a meeting.
RP has 60 days after meeting to offer to
perform remedy, and 60 days to negotiate
agreed order. If not, then Commission lists the
site and issues the order.
CLEANUP ACTIVITIES
Of seven (7) pre-1989 administrative orders
on State-listed sites, RPs at three (3) have
complied and are doing RI/FS, the four (4)
others appealed in court.
Eight (8) negotiated RP cleanups at State
sites.
CLEANUP POLICIES
AND CRITERIA
Remedy based on "the lowest cost alternative
that is technically feasible and reliable and
which effectively mitigates and minimizes
damage to and provides adequate protection of
public health and safety or the environment"
The Commission may approve remedial action
that does not meet ARARs in certain circum-
stances, including-for State-funded cleanups
only-where ARARs will not provide a balance
between public health and safety vs. need to
conserve Fund for use at other sites "taking into
account the relative immediacy of the threats."
PUBLIC PARTICIPATION
Public notice and comment required in order
to list a site. Public meeting required after
RI/FS prior to remedy selection.
FEDERAL/STATE
PARTNERSHIP
No SMOA. FY88 CORE Grant, 24 site-
specific cooperative agreements, 17 sites under
multi-site agreement. 18 site Management
Assistance Grants. No TAGs.
170
-------
REGION VH
Iowa
Kansas
Missouri
Nebraska
171
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed State sites
9
15
19 (37 proposed)
(includes NPL sites)
384
IOWA
[8/11/89]
1977,1978,
1979,1980, 1981,; 1982,1983,1984,1985,; "•"^'•' •'• •
Significant amendments concerning cleanup authority for abandoned and uncontrolled sites enacted in 1979,,
1981, and 1987,
1984 amendment establishes Hazardous
Reroed|^ Fund,
STATE AGENCY
Two (2) .subdivisions of the DNR's Solid
Waste Section are connected with State Super-
fund program: one (1) is responsible for
enforcement/remedial activities, the other
handles registry (SAUSR) of sites. Total staff
for the two (2) subdivisions is 13. Legal support
is provided by DNR attorneys for administrative
actions; AG's office institutes all legal pro-
ceedings. Administrative costs of State Super-
fund subdivision covered by HWR Fund, EPA
grants, and appropriations; costs of SAUSR
covered by Oil Overcharge Fund.
FUNDING
Hazardous Waste Remedial (HWR) Fund
balance of approx. $230K with an average of
$140K/yr collected primarily through fees on
the transport, treatment, and disposal of
hazardous waste.
HWR Fund can be used for emergency
response, removals, studies and design, remedial
actions, O&M, CERCLA match, and develop-
ment of alternatives to land disposal.
172
-------
IOWA (continued)
ENFORCEMENT
The State must try to negotiate a settlement
with RPs prior to using Fund monies for
cleanup. The State can issue orders and
injunctions against RPs to clean up sites.
Although the State cannot impose civil penalties
for RP failure to clean up, it can collect treble
damages for willful failure to clean up.
Negotiated settlements have been generally
successful. The majority of sites are RP
cleanups.
CLEANUP POLICIES
AND CRITERIA
Cleanup decisions are made on a site-by-site
basis. Recent regulations include cleanup goals
for ground water.
CLEANUP ACTIVITIES
Approximately 20 RP cleanups are either
completed or ongoing for non-NPL State sites.
PUBLIC PARTICIPATION
No formal requirements or informal
procedures.
FEDERAL/STATE
PARTNERSHIP
Multi-site CA to identify sites, classify
according to hazard level, and place on State
registry. CAs and 16 MAs obligated. CORE
Grant in FY88.
173
-------
SITES
NPL sites
Proposed NPL
Non-NPL sites (state cleanups)
unconfirmed sites
9
2
12
489
KANSAS
[5/12/89]
• • STATUTE':. :::"':' :'fv - '"•". ""::/vI"':c"':":;;..'
Environmental Response Act (ERA), K.S. Ann. |65-3452 et seq. (1988), amends Kansas* hazardous waste
law, enacted 1981 and amended 1984 and 1985. The Act established the Environmental Itesjpojise Bund
(ERF) which replaces the Hazardous Waste Cleanup Fund and the Pollutant Discharge Cleanup Fund, and
provides enforcement authorities for hazardous $ufrsfrfflses as well as hazardous wastes. / ;: j i: : •: :;
STATE AGENCY
Kansas Department of Health and
Environment's Bureau of Environmental
Remediation (BER) is responsible for Federal
and State Superfund, cleanups, LUST, and
emergency response. 23 of its 32.5 employees
are assigned to Superfund duties, in addition to
two (2) Department lawyers who work on
Superfund. Administrative costs are covered by
appropriations from the State's general Fund.
FUNDING
ERF balance of $4.5M (anticipated, 7/1/89).
Virtually all funds are from appropriations.
Fund can be used for emergency response
removals, studies and design, remedial actions,
oversight and management, CERCLA match,
and action at LUST sites.
Funding for state action at non-NPL sites is
appropriated on a site-specific basis through
legislation.
174
-------
KANSAS (continued)
ENFORCEMENT
The ERA authorizes the State to issue orders
and injunctions against RPs to effect site
cleanups. Civil penalties for violation of an
ERA order are not available, however. Penalties
are available under RCRA, nuisance, or water
laws; and State can use these authorities for
enforcement (including cleanup of groundwater
and soil).
CLEANUP POLICIES
AND CRITERIA
BER can adopt standards which the Bureau
of Water Quality and Health will set-expected
within two years.
CLEANUP ACTIVITIES
RP investigations, remedial design or
remedial action underway at 78 hazardous waste
sites and 59 leaking underground storage tank
releases.
PUBLIC PARTICIPATION
No formal requirements or informal pro-
cedures. State is developing a contingency plan
which will include guidelines on community
participation.
FEDERAL/STATE
PARTNERSHIP
SMOA currently in draft CAs have been set
for 10 sites, MAs have been set for four (4)
sites. CORE Grant was awarded for FY90.
175
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
14
7
54*
1400 CERCLIS
* State ranking system establishes 5 priority
categories for State registry: 11 are priority one,
requiring immediate action; 24 are priority two,
requiring action; 16 are priority three, action
may be deferred; 3 are priority four, site closed
with continuing management; 0 are priority five,
site closed with no further action required.
MISSOURI
[5/15/89]
STATUTE(;S) '
Hazardous Waste Management Z*w, Mo. Rev. Stat, §§260.350 - 260,552 (197?,
1983, 1985, 1987, 1988) authorizes Fond and provides for strict IfabiBtyv site access,
Order authority, civil and criminal penalties, and punitive damages. .; : : -:"^ /:.
STATE AGENCY
Department of Natural Resources (DNR),
Division of Environmental Quality, Waste
Management Program has four (4) sections:
Superfund Section, Hazardous Waste Section,
Solid Waste Section, and an Enforcement
Section which handles only solid waste and
RCRA sites. The Superfund Section has 16
technical and administrative staff. About 10 lab
technicians are located in the Lab Services
Program, which handles much of the field work
and Sis. Three (3) attorneys in the Department
are available for the Division of Environmental
Quality. The AG's office handles all litigation.
With Federal and State funds combined Super-
fund program has an annual budget of $4.6M
with S1.7M for personnel and support.
FUNDING
The Hazardous Waste Remedial Fund has a
balance of $5.9M (4/1/89) primarily provided by
taxes on hazardous waste generators based on
tonnage and the method of handling waste.
There is a $1.5M/yr cap on this tax. Fees on
landfilled waste also contribute, though the
amount is down to about $500K/yr because of
increasingly strict land restrictions. Cost
recovery, penalties/fines, donations, and appro-
priations are all potential contributors.
The Fund may be used for emergency
actions, removals, studies and design, and
remedial actions. It may also be used for the
non-Federal share of O&M costs and to meet
the State's CERCLA match. The Fund can be
used for health studies, acquisition of property,
and to study the development of a hazardous
waste facility in the State.
176
-------
MISSOURI (continued)
ENFORCEMENT
State tries to get RPs to do cleanup first If
RPs are recalcitrant or insolvent, and site is
small, the State will fund removal-type actions.
If the cleanup is costly, State will try to use
EPA authority and funds. The State has had
substantial success in convincing PRPs to
conduct cleanups.
CLEANUP POLICIES
AND CRITERIA
DNR is currently developing standards.
Meanwhile, the Department sets standards on a
site-by-site basis in consultation with the Dept.
of Health and using published lexicological data
from ATSDR and other sources.
CLEANUP ACTIVITIES
To date DNR has completed approximately
265 PAs, 120 Sis. There are 26 ongoing
cleanups in State including work at NPL sites,
RCRA closures, EPA removals, two (2) State-
funded cleanups (basically drum removals), and
16 RP cleanups.
Seven (7) of 14 NPL sites are State lead and
the State plans to take lead on new sites added
to NPL.
PUBLIC PARTICIPATION
Annual meeting required to report status of
hazardous waste program to public. Public has
access to information collected under various
authorities unless it is a trade secret or
otherwise exempted from disclosure. Local
governments must be notified of sites in their
jurisdiction and sent copy of registry.
FEDERAL/STATE
PARTNERSHIP
No SMOA, CAs for 23 sites, MA grants at
IS sites. State received CORE grant for FY88,
one (1) TAG.
177
-------
SITES
NPL sites
Proposed NPL
Total identified State
sites (GAO)
3
2
40
NEBRASKA
[5/15/89]
STATUTE
Legislation is pending to establish Superfund; enactment is unlikely this year, Nebraska Environmental
Protection Act (N;et». Rev, SW,§8H501:through §814533) does not cover Saperfand si^s;
However, State uses Tide 118 of its regulajions* i^ulgated under 181-1501 tp
groundwafer and set standards for cleanup. Applies ®&y to actions after i978.;
STATE AGENCY
The Superfund unit of the Hazardous Waste
Section (Department of Environmental Control)
has five (5) professional staff; three (3) support
staff also work within the Section. Legal
support is provided by Department attorneys and
one (1) attorney from AG's office who works
with the Department Administrative support
costs are covered by CORE grants and EPA
funding.
FUNDING
No Superfund
178
-------
NEBRASKA (continued)
ENFORCEMENT
Title 118 authorizes the State to issue
administrative orders and injunctions against
RPs generating 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.
CLEANUP POLICIES
AND CRITERIA
Title 118 sets standards for groundwater
cleanup.
CLEANUP ACTIVITIES
PUBLIC PARTICIPATION
Tide 118 requires RP to submit Remedial
Action proposal based on "detailed site assess-
ment." 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.
FEDERAL/STATE
PARTNERSHIP
CAs covering seven (7) sites and five (5)
MAs. CORE Grant awarded.
179
-------
REGION VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
180
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
13
3
400 sites in CERCLIS
through initial site
investigation
COLORADO
[8/11/89]
STATUTES
ti tf&ardows Sfdxtmces Response Fwd, Colorado Rev, Stat. Section 35-16-101 et seg.* J085
, : amended, provides funds for State CERCLA match, some administrative costs, and some
! futuie £ost&. ; ;
CERCLA Recovery FoiK?, Colorado Rev, Stat. Section 25-16-201, 1985 as amended,
account for natural resource damages. ;
STATE AGENCY
Within the Office of Health and Environ-
mental Protection of the Department of Health,
the Hazardous Materials and Waste Management
Division contains three sections with Superfund
staff in each: (1) Remedial programs with 14
staff working on Superfund; (2) hazardous waste
control (RCRA type program) with two (2) staff
working on Rocky Flats cleanup and; (3) Solid
waste and incident management with two (2)
staff working on PA/SI and emergency
response. AG's office provides legal support
with 18 staff handling natural resource damages
litigation.
FUNDING
Hazardous Substances Response Fund balance
of approx. $3M, collected from solid waste
disposal fees (approx. $1.3M/yr) and site-
specific settlement costs. Fund used for
CERCLA match, 5% for administrative costs,
and site-specific operations and maintenance
costs. There is no cap on the Response Fund.
CERCLA Recovery Fund does not disburse
funds. It is an account for receipt of natural
resource damages for transfer to the legislature
or general fund.
181
-------
COLORADO (continued)
ENFORCEMENT
State's cleanup fund statute contains no
enforcement authorities. Colorado may use
authority under other statutes (e.g., Water
Quality Control Act and hazardous waste law)
for cleanup of some sites. The AC has filed
seven (7) CERCLA natural resource damages
lawsuits, of which three (3) have been settled
with remedial action underway. Two (2) others
have received favorable court rulings, one (1)
has joint agreement with RP for RI/FS and one
(1) is being addressed under Federal Superfund.
State has used its hazardous waste law at Rocky
Flats and Rocky Mountain Arsenal; no other
enforcement has taken place at inactive or
abandoned sites.
CLEANUP POLICIES
AND CRITERIA
Cleanup standards are determined on a site-
specific basis, using State ARARs where
applicable.
CLEANUP ACTIVITIES
State has lead on two (2) NPL fund-lead
cleanups.
PUBLIC PARTICIPATION
No formal public participation requirements.
AG follows NCP procedures under natural
resource damages cases.
FEDERAL/STATE
PARTNERSHIP
SMOA in draft form. State has received
CAs, MSCAs, and MA Grants.
182
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
8
2
159 (includes NPL)
149
at least 151;
undetermined
MONTANA
[8/11/89]
STATUTES
Until 5/10/89, the law in effect was ifce EnvtMnmrud Quality frote&km Fund Aett Mont Cede Am
§§75-10-701 to -715 (1985), which provides for strict HabiKty, judicial civil penalties, ;
damages, and cost recovery. .
A new law, (he Montana Comprehensive Enw&menial Cfeantip and JtesponsibiUty Act (CECpSA) has
been passed by the legislature and was signed by the governor 5/10/89. CECRA provides the
Mowing additional authorities: joint and several liability, information gathering and site access,
subpoena and administrative order authority, administrative civil penalties, liens, and administrative
condemnation power. j ;
STATE AGENCY
MDHES, Solid and Hazardous Waste Bureau,
Superfund program has 14.5 people, mostly
funded through EPA cooperative agreements.
Staff includes one and one-half (1.5) attorneys
from AG's office, assigned to the agency.
FUNDING
Although law was enacted in 1985, funding
was not appropriated until 1987 for the 1989-91
biennium. Fund balance is technically $0 as of
5/11/89, but a recent settlement will yield
$160K when finalized. Funding will come pri-
marily from a trust fund that collects taxes on
natural resource extraction, with additional
funding expected from cost recovery, penalties,
and appropriations. The tax and other sources
are expected to generate $250K/yr.
The Fund can be used for emergency
response, removals and remedial actions, and
investigations. Funding for O&M, State
CERCLA match, and actions at LUST sites are
provided by other statutes.
183
-------
MONTANA (continued)
ENFORCEMENT
Montana Department of Health and
Environmental Sciences (MDHES) is required to
make a good-faith effort to have RP clean up
prior to using the Fund. Money obtained from
cost recovery and civil penalty assessments are
returned to the Fund. At sites worked on this
far, the State is still at the study stage.
CLEANUP POLICIES
AND CRITERIA
CECRA requires standards that assure present
and future protection of public health, safety
and welfare, and the environment
CLEANUP ACTIVITIES
MDHES has issued two (2) negotiated orders
for RI/FSs. It has issued two (2) unilateral
orders for conduct of RI/FS at third site, and
one (1) unilateral order for an emergency
cleanup. In addition, the DOD has completed
cleanup at two (2) sites pursuant to a negotiated
order.
PUBLIC PARTICIPATION
CECRA requires public notice of administra-
tive orders and consent decrees.
FEDERAL/STATE
PARTNERSHIP
SMOA development underway, but outcome
uncertain. Draft SMOA with Dept. of Defense,
but State has serious concerns. CORE Grant in
FY88. One (1) multisite CA; several others for
individual site work. One (1) TAG awarded.
184
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
2
0
46-47 on CERCLIS
NORTH DAKOTA
[5/22/89]
STATUTE
North Dakota does not have; its own State Superfund &w,
agreements with EPA, Its Hawrtous Waste p^$&twt Act
10 (1981, amended 1983 and 1987) provide^ Some authority
but is limited. -- -i - '-: "Li:"-" "......
administers CERCLA through cooperative
vmkNJVQjnt Cote;§m~%)34\ to -
can be used in conjunction with cleanups,
A bill just enacted by the 1989 legislature creates die Environmental Quality Restoration Fund. This fund
provides cost recovery authority but no liability standard, and applies to all environmental programs; it
becomes effective 7/1/89, i :; v ;!?: ; : k > f
STATE AGENCY
The lead agency is the Division of Waste
Management, in the Dept. of Health & Consoli-
dated Laboratories' Environmental Health
Section. Two (2) of the Division's 16 staff do
some Superfund work. The Division's legal
support is an Assistant Attorney General,
assigned to the Department, who works on all
environmental programs.
FUNDING
The State program is currently funded by
appropriations and EPA cooperative grants.
The new Environmental Quality Restoration
Fund will receive cost recovery monies and
contributions from settlements. The Fund may
be used for emergency response, removals,
remedial action, and O&M, possibly studies and
design, and administrative expenses.
185
-------
NORTH DAKOTA (continued)
ENFORCEMENT
Voluntary cleanup is the preferred enforce-
ment method and the State has had a 95% PRP
cleanup rate to date. Where voluntary
compliance is not obtained, the State will obtain
a judicial order, although no such actions have
been taken.
The HWMA authorizes administrative orders,
injunctive relief, civil and criminal penalties.
CLEANUP POLICIES
AND CRITERIA
Standards are determined on a site-by-site
basis. Federal guidelines will be used where
applicable.
CLEANUP ACTIVITIES
Most of the CERCLIS sites have undergone
PAs and Sis, and the State expects to complete
all of these studies by the end of 1989.
Cleanup costs have diverged widely,
mostly range around $100-200K.
but
PUBLIC PARTICIPATION
Very few statutory requirements exist for
public participation, but the Division notifies
local officials with information about a site.
Local communities can become involved in site
activities.
FEDERAL/STATE
PARTNERSHIP
No SMOA signed and none in progress.
One (1) MSCA covering three sites. Several
CAs for site work and PA/SIs. No TAGs
awarded; two (2) communities have applied.
CORE Grant for FY88.
186
-------
SITES
NPL sites
Proposed NPL
Non-NPL sites
1
0
56 on CERCUS
SOUTH DAKOTA
[8/4/89]
STATUTES
i. South Dakota's Regulated Substance Discharge Law, S.Dak. Codified Laws Ann, ||$4A42-1 to -IS
(enacted 1988, amended 1989), establishes a cleanup fund and provides for strict liability,
administrative order authority, injunctive relief, cost tecovery, and Bens.
.2, The Hazardous Waste Management Act. S.DaL Codified Laws Am. §§3441-1 to '23 (1983> amended
most recently in 1988), provides for civil and criminal penalties, information orders, and site access.
STATE AGENCY
The Department of Water and Natural
Resources is the lead agency. Only State
activities have been PAs performed with EPA
funding.
The Attorney General's office provides legal
support as needed.
FUNDING
The Regulated Substances Response Fund
has a balance of $710K. Funding sources are
appropriations, cost recovery, penalties, and
gifts. The legislature authorized a one-time
transfer of $350K from the Petroleum Release
Compensation Fund (UST Fund) to the Fund in
1989. A temporary fee increase on pesticides
also provided some monies. The Fund may be
used for administrative activities, emergency
response, removals, and investigations and
managerial activities.
187
-------
SOUTH DAKOTA (continued)
ENFORCEMENT
The law makes discharge of a "regulated
substance" a "violation," and authorizes orders
and injunctive actions to cause the "responsible
person" to conduct "corrective action." The law
defines liability for expenditures by the
Department as "strict," and provides for a lien
on property cleaned up by the Fund.
CLEANUP POLICIES
AND CRITERIA
State indicates that it expects to use EPA
standards.
CLEANUP ACTIVITIES
The only NPL site is at FS stage.
PUBLIC PARTICIPATION
No formal provisions.
FEDERAL/STATE
PARTNERSHIP
One (1) MA; no SMOA, CAs, TAGS, or
CORE Grants.
188
-------
SITES
NPL sites
Proposed NPL
State list
unconfirmed sites
5
7
required by new law,
but not yet promulgated
191 on CERCUS
UTAH
[8/11/89]
• '= Uv-V" STATUTE
The Utah Hazardous Substance? Mitigation Act, Utah Code Ainu ||26-l4d-lOl K» -801 (!$$> ttfce& e#e#
on 6/30/89* This statute repeals part of an older law, the Utah Hazardous Materials fmestigaftMt and
Response Act, §§26*1449 and r20. The new taw provides for strict liability, site access, administrative
order authority for direct and; immediate threats, mjunctive relief, civil penalties, and *?ost
and several liability is explicitly unauthorized.
STATE AGENCY
The lead agency is the Department of Health,
Division of Environmental Health, Bureau of
Solid and Hazardous Waste. The Superfund
Branch in the Bureau has primary responsibility;
it has a staff of 16, of which two (2) are State-
funded. Of the remaining 14 positions, four (4)
are funded by a CORE grant and 10 are funded
by a multisite cooperative agreement One (1)
staff attorney at the Bureau level handles most
legal duties, although the AG's office is
available for administrative negotiations, as well
as litigation, as needed.
FUNDING
The Hazardous Substances Mitigation Fund
has had $3M appropriated for startup; of this,
$1.6M is the State's match for the Sharon Steel
NPL site and $120K is designated for the UST
program, leaving $1.28M for use by die agency
for general cleanup activities. Funding will
primarily come from annual appropriations,
although cost recovery monies and penalties will
also be deposited into the Fund.
The Fund can be used for emergency
response, removals, remedial investigations, and
the State's CERCLA and RCRA LUST match.
The Fund cannot be used if the site can be
cleaned up under any other State statute.
189
-------
UTAH (continued)
ENFORCEMENT
The State strongly desires PRP leads with
State oversight, since its funding will be limited
and it has no authority to conduct remedial
actions. The State intends that most remedial
investigations will be performed by RPs. In the
absence of RP action, the State will pursue
enforcement and/or initiate an RI using the State
Fund. Remedial actions will be conducted either
under State enforcement authorities or Federal
Superfund.
CLEANUP POLICIES
AND CRITERIA
The State has adopted a flexible cleanup
policy that addresses sites on a case-by-case
basis. The policy requires that the source of
contamination must be eliminated or controlled.
Residuals will be evaluated according to other
background contaminants, environmental con-
siderations, technical feasibility, and economic
considerations. Use MCLs where applicable.
CLEANUP ACTIVITIES
Under the old law, one PRP cleanup with
State oversight took place. There are currently
three (3) State leads at NPL sites, with plans
for two (2) more.
PUBLIC PARTICIPATION
Records obtained by the department are to be
made available to the public unless entitled to
confidentiality. Rules providing for public par-
ticipation during the remedy selection process
will be promulgated in the near future.
FEDERAL/STATE
PARTNERSHIP
Second SMOA signed 12/88 which covers
issues such as CAs, lead designations, adminis-
trative record development, enforcement, and
Federal facilities responses. MSCA covers nine
(9) sites; site-specific CAs for seven sites. Nine
(9) MAs provided for in MSCA. No TAGS.
CORE Grant for FY87.
190
-------
NPL sites
Proposed NPL
unconfirmed sites
SITES
1 (Baxter/Union Pacific
Tie Treating site in Laramie)
100-120 sites
on CERCLIS
WYOMING
[8/11/89]
STATUTE
The Wyoming Environmental Quality Arr(EQA), Wyo, Stats, §§35-llrl01 b -1207 (1987), doe* not
provide a fund for state cleanup actions. Other funds, however, enable state cleanup in emergencies (see
"Funding" below). The EQA requires containment and notification of releases and grants the Department of
Environmental Quality (DEQ) authority to gain site access, issue administrative orders, and seek injunctive
relief and civil or criminal penalties through the State's Attorney General, Interested citizens may bring civil
suits to compel compliance to the extent that such action could have been brought in Federal district court.
STATE AGENCY
The Solid Waste Management Program
(SWMP) within the Department of Environ-
mental Quality leads State hazardous waste
efforts. The SWMP has 12 positions authorized;
these positions cover RCRA and solid waste.
Superfund activities are covered by DEQ's
Water Quality Division (WQD). The WQD
already has led most activity at the Mystery
Bridge proposed NPL site, and its mandate is
broader than that of the SWMP.
The Environmental Quality Council is an
independent body of seven (7) members serving
an administrative judicial role. The Council
conducts hearings and hears appeals, and
approves all regulations recommended by DEQ.
FUNDING
The EQA provides no statutory funding for
remedial actions; DEQ has sought line item
appropriations only for pre-remedial adminis-
trative costs on a case-by-case basis in the past.
Under the Wyoming Oil & Hazardous Sub-
stances Pollution Contingency Plan, under the
EQA, releases posing an imminent threat to
public health or safety may be contained,
cleaned, or disposed through the governor's con-
tingency fund upon gubernatorial authorization.
Effective June 8, 1989, a new provision
under the EQA will enable DEQ to fund emer-
gency actions without the Environmental Quality
Council's approval, through the existing DEQ
Trust and Agency Account The current balance
in this fund is $1.1M. The fund, previously
limited to abandoned mine reclamation
activities, is funded by penalties and fines.
EQA also provides a cleanup fund for UST
sites.
191
-------
WYOMING (continued)
ENFORCEMENT
DEQ does not consider itself to be an initial
response agency. During releases, the agency's
first priority is to contact responsible parties to
determine if they have conducted or will con-
duct cleanup. When RPs are unwilling or unable
to act, DEQ seeks funds from the governor's
contingency account, seeks approval from
Council to spend Trust and Agency account
funds, or contacts the EPA Regional Response
Team. It has been several years since money
was sought from the contingency fund.
Notices of violation and administrative orders
are issued as a last resort when negotiations
fail.
CLEANUP ACTIVITIES
Using Federal management assistance monies,
DEQ has conducted PA/SI work for the pro-
posed NPL site as well as the F.E. Warren
A.F.B. site, which is being considered for NPL
proposal, and which is the only Federal facility
of concern in the State at this point. All
CERCLIS-listed sites have undergone PAs, and
several have undergone Sis.
CLEANUP POLICIES
AND CRITERIA
The State has no general cleanup or design
standards. Standards are developed on a site-by-
site basis, with guidance coming from Federal
standards such as MCLs 'and ACLs. The State
does, however, have standards for inorganic
compounds in water.
PUBLIC PARTICIPATION
The public is able to participate in a variety
of informal ways. First, any information
obtained by DEQ under the EQA is available
for public review. Second, citizens may
comment on rulemaking and permitting
decisions. Finally, the governor created a citizen
commission for the Mystery Bridge NPL site to
comment on site activities.
FEDERAL/STATE
PARTNERSHIP
No SMOA is planned, but the State's
relations with EPA are mostly limited to remedy
selection. No CORE grants have been awarded,
and no community has received a TAG grant
No MSCA is currently in place. State involve- .
ment in pre-remedial activities in prior years
was covered under an MSCA.
192
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REGION IX
Arizona
California
Hawaii
Nevada
193
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites
unconfirmed sites
5
4
23
5 emergency action sites
about 700 on CERCLIS
ARIZONA
[8/11/89]
STATUTE
The Arizona Environmental Quality Act, Ariz, Rev. Stat Amu $$4&2$t 10 -2$7 {1986, amended 1987)*
establishes the Water Quality Assurance Revolving Fund (WQARF, pdpotarly
-------
ARIZONA (continued)
ENFORCEMENT
The State must demonstrate culpability before
initiating enforcement actions, as RPs have the
right to a review hearing. Generally, responsible
parties are encouraged to voluntarily perform
work. Site investigations, RI/FS, risk and health
assessments and a remedial action plan must be
developed before an order may be issued.
Strict, joint and several liability applies.
Administrative orders, treble damages, injunctive
actions, and civil penalties are authorized.
By statute, enforcement actions are handled
by the AG's Office, which has two (2) assistant
attorneys general assigned to the Office of
Waste Programs (1 FTE).
CLEANUP ACTIVITIES
WQARF rules require prior approval for
remedial actions by private parties when a cost
recovery action is contemplated. A number of
voluntary cleanups are being supervised. The
State has completed nine (9) cleanup projects,
14 projects are ongoing, and six (6) are
proposed.
CLEANUP POLICIES
AND CRITERIA
Remedial actions must assure the protection
of public health and welfare and the environ-
ment, allow the maximum beneficial use of
State waters, and be cost effective over the
period of potential exposure to hazardous
substances. The State uses federal MCLs where
applicable and "Arizona action levels," which
impose a 10* risk for unregulated carcinogenic
chemicals.
PUBLIC PARTICIPATION
Important site and program actions are
announced in two (2) state-wide newspapers.
Public comment is required for the annual
priority list and elective for other remedial
actions. Comment summary and response is
required for the annual list and others for which
comment has been invited. Any political
subdivision that uses, has or will use the waters
of the State and State agencies may apply for
matching funds for remedial actions.
FEDERAL/STATE
PARTNERSHIP
Arizona receives federal funds under
MSCAs. Since 1987 DEQ has received approxi-
mately S2.19M in EPA grants. There are no
current plans to develop a SMOA.
195
-------
NPL sites
Proposed NPL
State list
unconfirmed sites
SITES
52
36
Three-tiered--
approx. 328 total
Approx. 5000 sites on the
Abandoned Site Program
Information System (ASPIS)
List includes CERCLIS
(about 4000).
CALIFORNIA
[8/11/89]
:... -. p • . - pV ; STATUTES
California Hazardous Substance Account Act* Cat Health & Safety Code §|25300 et seq. (1981, amended
1982, 1983, 1984, 1986, 1987, 1988), which includes fee Hazardous Substance Cleanup Bond Act of 1984,
§§25285 through 25386.6, and the Hazardous Substance Cleanup Financing Authority Act. §§25392 through
25395 (1984), establishes site mitigation program nod provides cleanup fund.
STATE AGENCY
Department of Health Services (DHS), Toxic
Substances Control Division, Site Mitigation
Unit is staffed with 170 people in four regional
offices and headquarters. Budget for site
mitigation activities $62.37M~approx. $24M for
staffing. However, bond fund no longer viable
and Hazardous Substance Account has $15M
cap, so remaining funds from emergency appro-
priations.
DHS has in-house legal staff, with 4-5
attorneys assigned to Site Mitigation Unit. AG's
office has two (2) attorneys assigned to Toxic
Substances who devote approx. 50% of time to
Site Mitigation. DHS also works with California
Air Quality Resources Board and the Regional
Water Quality Control Boards. The Water
Quality Control Boards also undertake their own
cleanups in cases of "classic" groundwater
contamination.
FUNDING
(1) Hazardous Substance Account, in the
General Fund, §25330. Primary source of
funding for Account is tax on disposal of hazar-
dous waste (cap $15M per year). Balance of
$1.8M, collects an average of $15M per year.
Fund used for removal and remedial actions
(prohibited until RPs given notice and oppor-
tunity to cleanup), studies and design, O&M,
and State CERCLA match.
(2) Hazardous Substance Cleanup Fund
§25385.3, known as "bond fund," authorized
debt of $100M~exhausted since 12/88.
(3) Hazardous Substance Clearing Account,
to pay off bond debt, receives cost recovery.
(4) Superfund Bond Trust Fund, to ensure
payment of interest on bonds, receives $5M
annual transfer from Hazardous Substances
Account
(5) Appropriations authorized for Hazardous
Substance Victim's Compensation Fund ($2M/
year authorized; small amounts expended).
(6) §25354 creates Emergency Reserve
Account ($lM/year) for spill response.
(7) Additional authorization for health effects
studies, funding local agencies for hazardous
materials equipment, and other items.
196
-------
CALIFORNIA (continued)
ENFORCEMENT
Legal authorities include strict liability, yet
apportionment is required. State has authority
for orders for information and access, subpoena
authority, administrative order authority. Civil
penalties up to $25K/day or up to $2SK/
violation, criminal penalties up to $2SK/day
and/or imprisonment for up to one (1) year.
(Penalties associated with hazardous waste
management law rather than Superfund
specifically.) Treble damages available. Citizen
suit provision under Proposition 65. PRP may
seek judicial review of final remedial action
plan, RP must be given notice and opportunity
to assume cleanup responsibility and fail to
comply in order for State to undertake cleanup
or enforcement activity. Preferred method is
negotiated settlement, consent order with
stipulated penalties for noncompliance.
CLEANUP ACTIVITIES
As of 1/89, remedial actions (State and
Federal) have been completed on 176 sites-
approx. 20 of those were State-funded, a small
percentage Federal, the remainder are RP
cleanups.
Of the sites on the priority list--approx. 64
undergoing RP cleanup, 60 in negotiations with
RP, 20 are State-funded cleanups, the remaining
sites have unidentified RPs, no agreement, are
potential orphans, or are backlogged.
CLEANUP POLICIES
AND CRITERIA
State has Applied Action Levels (AALs)
based on 10"* risk for carcinogens. 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.
State has promulgated MCLs for many water
contaminants and a number of other standards
including air toxics.
PUBLIC PARTICIPATION
DHS must hold at least one public meeting
before adopting a remedial action plan and must
review and consider any public comments.
Anyone affected by a removal or remedial
action must be provided with the opportunity to
participate in DHS's decisionmaking process.
DHS must develop and make available to the
public a schedule of activities for each site.
FEDERAL/STATE
PARTNERSHIP
Had MSCA from 1/1/88 to 12/31/88 covering
State oversight expenses at NPL sites-currently
renegotiating. Draft SMOA also scheduled to be
finalized in 1989.
State has CAs, MAs, and CORE Grant in
FY89.
Two (2) TAGs awarded in State.
197
-------
SITES
NPL sites
Proposed NPL
State list
Total identified
State sites
0
6
not yet promulgated
no information
HAWAII
[6/1/89]
StATUTE
Hie Hawaii Environmental Response Act, Haw. Rev, Stats. §§148.1 to .7 (1988), establishes a rqnd (or
emergency response actions and provides for strict liability, administrative order.."
civil penalties, and cost recovery. I " ''•• \ :i \:^ ,
STATE AGENCY
The Hawaii State Department of Health,
Environmental Protection and Health Services
Division, Hazard Evaluation and Emergency
Response Program is the lead agency. The
program has 10 staff members and a budget of
approximately $300K/yr. Legal support is
located in the AG's office.
FUNDING
The Environmental Emergency Response
Revolving Fund has a balance of $150K
(6/1/89). Sources of the Fund are appropriations,
cost recovery, and penalties. The Fund may be
used for emergency response actions, removals,
and the State CERCLA match.
198
-------
HAWAH (continued)
ENFORCEMENT
There do not appear to have been enforce-
ment activities yet by the State. The State is
using two EPA Region IX IPAs to help develop
regulations and policies.
Liability is strict, and includes liability for
natural resource damages. Orders and injunctive
authorities are available. Punitive damages for
failure to perform removal or remedial actions
are treble.
CLEANUP POLICIES
AND CRITERIA
CLEANUP ACTIVITIES
No information available as of 6/2/89.
PUBLIC PARTICIPATION
There are no public participation require-
ments under the Superfund law. The State's
hazardous waste management law requires the
Department of Health to develop a public
education program for hazardous waste issues.
FEDERAL/STATE
PARTNERSHIP
No SMOA. No CAs, MAs or TAGs. CORE
Grant for FY89.
199
-------
SITES
NPL sites
Proposed NPL
Non-NPL sites
None
None
115 on CERCLIS,
of which about 85 are
mining sites.
NEVADA
[6/6/89]
'... :.. 7 "" ""...[.. STATUTE
Stat. $§4$9JQQ~459.6Qp (1981, amended :1983V 1985, mi 1987) laefcs a specific naihe,vbiat Slate
officials refer to it as the "hazardous waste statute," Primarily covering operating facilities, this law gives
authority foe spill cleanup by either the State or responsible parties. This statute also established a hazardous
waste management fund, which may be iised for Kano»alsv oversight, and site operations and maintenance
STATE AGENCY
Housed within the Division of Environmental
Protection, which itself is part of the Depart-
ment of Conservation and Natural Resources,
the Waste Management Section oversees the
State's hazardous waste, solid, waste, and UST
programs. The Waste Management Section has
the lead on activities governed by the hazardous
waste statute. The Section has a staff of 11
people; seven (7) of these positions cover hazar-
dous waste work. One (1) attorney within the
Department is shared by the air, water, and
waste programs.
A variety of other agencies are involved in
the hazardous waste program secondarily. The
most important, the State Environmental
Commission, is the rulemaking and hearing
body for all environmental matters in the State.
Other agencies with intermittent roles include
the Division of Emergency Management, the
Division of Water Resources, the State Fire
Marshal, and the Divisions of Forestry and
Wildlife.
FUNDING
Most of the State's funding for cleanup
comes from EPA RCRA and UST grants.
Roughly three-fourths of the monies in the
hazardous waste management fund (balance
$lM-5/89) derive from waste volume fees~$20
per ton for out-of-state waste, $10 per ton for
waste generated in-state. Cost recovery,
penalties, and permit fees provide the remaining
funds. There have been no State appropriations.
Fund covers emergency response, removals, and
activities related to oversight of the management
of hazardous waste.
200
-------
NEVADA (continued)
ENFORCEMENT
Though the hazardous waste statute sets no
standard for liability, this law provides admin-
istrative order authority, including orders for
information and site access, subpoena authority,
injunctive action, civil and criminal penalties,
and cost recovery. Cost recovery is generally
secured in consent agreements.
The State encourages responsible party par-
ticipation, but it intends to issue orders for
recalcitrants. No orders have yet been issued,
nor have injunctive actions been sought, but the
State has collected approximately $100K in
penalties in the last two (2) years.
CLEANUP ACTIVITIES
While the State keeps no site list nor does it
have any State-funded sites, it has overseen
several cleanup actions. An Anaconda Copper
Company site suffering groundwater contamina-
tion is being cleaned under an administrative
order. Also, a stretch of the Carson River
roughly 75 miles long, from Carson City to the
Stillwater Wildlife Refuge, has been contami-
nated with mercury by previous mining
activities; monitoring activities as well as a
health advisory on fish have occurred. Last, the
State is attempting to identify PRPs at a mining
site; it is currently negotiating with Anaconda
and several other PRPs.
CLEANUP POLICIES
AND CRITERIA
Drawing from Federal guidelines on UST
cleanups, as well as those from California, the
State has created its own hybrid of cleanup
standards. Specific standards are determined
site-by-site, but the State usually refers to EPA
guidelines.
PUBLIC PARTICD7ATION
There are no statutory requirements or
program policies for public participation.
Citizens, however, usually notify the Department
of hazardous waste problems, and the Depart-
ment typically informs concerned citizens of site
progress.
FEDERAL/STATE
PARTNERSHIP
The State is currently seeking a Federal
CORE program grant, but it has not developed
a SMOA, CAs, or MAs. The State hopes to
gamer additional Federal monies, at least to
provide administrative support. A larger concern
of the State is that it not be regarded as a
national dumping ground by any entity-Federal
or State.
201
-------
REGION X
Alaska
Idaho
Oregon
Washington
202
-------
SITES
NPL sites
Proposed NPL
State list
Non-NPL sites and
unconfirmed sites
1
0
1
277
ALASKA
[8/11/89]
•; • - ...; ; - STATUTES
Alaska Oil and Hazardous Substance Releases Law, Alaska Stafcj- ||46.08-005 & M& {19B6), authorizes a
fund and provides for administrative and consent order authority, injunctive relief, civil and criminal
penalties, and cost recoveiy.
Hazardous Substance Release Control law, Alaska Stats. §§46.09*010 to ,900 (1386), covers enforcement
and other provisions.
Mobility and Cost for OH and Hazardous Substances Discharge Law, Alaska Stats. §§46.03.822 eJL^Sfiu
(1989), was enacted in response to the Exxon Valdez spill, and provides for strict, joint and several
liability.
STATE AGENCY
The Department of Environmental Conserva-
tion's Oil and Hazardous Substance Spill
Response Section is responsible for cleanup
activities.
The Office of the Attorney General provides
legal support.
The Department of Emergency Services also
has involvement in emergency situations.
FUNDING
The Oil and Hazardous Substance Release
Response Fund ("the 470 Fund") has a balance
of $1.5M as of 5/30/89, which is supplied by
appropriations. Following the Exxon Valdez
spill the Fund was supplemented with $20M,
which the State expects to recover. Fund monies
may be used for emergency response, remedial
actions, and the State's share of Federal oil
discharge cleanups and CERCLA match.
Monies from forfeited performance bonds,
cost recovery and penalties are placed into a
"mitigation account" separate from the 470
Fund, but available for the same purposes.
203
-------
ALASKA (continued)
ENFORCEMENT
Liability is strict, joint and several.
CLEANUP POLICIES
AND CRITERIA
No information available as of 671/89.
CLEANUP ACTIVITIES
Focus on site identification--!^ the Kenai
Special Project, which was designed to locale
and identify all potentially contaminated sites on
the Kenai Peninsula.
PUBLIC PARTICIPATION
No formal policies.
FEDERAL/STATE
PARTNERSHIP
No SMOA, CAs, MAS, or TAGs. CORE
Grant for FY88.
204
-------
SITES
NPL sites
Proposed NPL
unconfirmed sites
4
0
about 175 on CERCLIS
IDAHO
[5/23/89]
' ; . : I : : "" 7 (STATUTE
Idaho has no State Superfund law. The Idaho Hazardous Waste Management Act (HWMA)* Idaho Code
.. J0N4W to -4*32 (1983, amended 1984, 1986, 1987, and 1988), estaWIsbes two foods tot povides only
minimal legal authority for site cleanups. ; :
STATE AGENCY
The lead agency is the Department of Health
and Welfare, Division of Environmental Quality,
Bureau of Hazardous Materials. CERCLA
responsibilities are split between the Policy and
Standards Section and the Remedial Action
Section. The Policy and Standards Section
handles CORE grant funding, pre-remedial
activities, and support services; the Remedial
Action Section handles site-specific remedial
work. Of a total of 38 personnel in the two (2)
sections, about 10 work primarily on Superfund.
Two (2) deputy AGs are assigned to the Bureau
of Hazardous Materials.
FUNDING
Funding for cleanups is generally obtained by
legislative appropriations. The HWMA, however,
establishes the Hazardous Waste Emergency
Account, which has a balance of $82K (5/89)
and can be used for emergency response. The
fund's primary source of monies is penalties,
and is not relied on heavily by the agency.
The HWMA also establishes the Hazardous
Waste Training, Emergency, and Monitoring
Account The HWMA authorizes use of this
fund for necessary removal and remedial
actions, but program staff caution that this is
primarily a hazardous waste management fund,
not a cleanup fund. The fund's balance is $1.6M
(5/89), primarily obtained through a waste
disposal fee.
205
-------
IDAHO (continued)
ENFORCEMENT
The State prefers RP cleanup, particularly
since it has no funding of its own. The State
has essentially no enforcement authorities under
the HWMA. For emergency conditions, the
State has injunctive and order authorities under
the Idaho Environmental Protection and Health
ACL
CLEANUP POLICIES
AND CRITERIA
The State has not yet developed cleanup
standards.
CLEANUP ACTIVITIES
There is a joint state/federal lead at one of
the four (4) NPL sites (Bunker Hill). Of the
four (4) sites, one (1) cleanup is virtually
complete (Arrcom site, EPA cleanup); one (the
joint lead) is in the middle of the RI; cleanup is
scheduled to be started at the third site by RPs
in summer 1989; and the RI/FS is just getting
underway at the fourth site.
PUBLIC PARTICIPATION
A full-time on-site community relations
person has been hired for the Bunker Hill NPL
site. This person coordinates monthly public
meetings, manages media contact, and deals
with community health concerns.
FEDERAL/STATE
PARTNERSHIP
No SMOA. One MSCA covers the four NPL
sites; CAs cover two (2) sites. One (1) MA
exists for each NPL site, plus a second MAG at
Bunker Hill (two operable units). No TAGs.
CORE Grant for FY89 and FY90.
206
-------
SITES
NPL sites
Proposed NPL
State list
suspected sites
6
1
under development
750
OREGON
[8/4/89]
"'.; ' "', T. "•;:•;, STATUTE •
Oregon Environmental Cleanup Law, Ot. Rev. Statt, §§46&54G - 390 (198?* amended !$$»>, establishes
the Hazardous Substance Remedial Action Fund (HSRAF) m& provides for strict liability, ^dmiJiisttative
order authority for cleanup^; injunctive relief, cfyil penalties, cost recovery, liens, and pmutive damages.
Amendments establish Orphan Site Account within HSRAF and modify the inventory provisions for State
sites (ORS §466,557).
STATE AGENCY
Lead agency is the Environmental Cleanup
Division (BCD) in Dept. of Environmental
Quality (DEQ). Program has 30 permanent staff
and nine (9) temporary positions in four (4)
sections: (1) Site Response, (2) Site Assessment,
(3) Policy and Program Development, and (4)
Underground Storage Tank Cleanup. AG staff,
one to two (1-2) attorneys, handles litigation,
and advises BCD as requested. The Fund
supports a little over half the agency's admin-
istrative budget.
FUNDING
HSRAF has a balance of S4.5M (4/89), with
an average of $2.25-2.5M/yr collected from
appropriations, cost recovery, penalties and
fines, and a monthly fee on the operator of the
State's only hazardous waste and PCB disposal
facility.
The Fund can be used for emergency
response, removals, studies and design, remedial
actions, O&M, State CERCLA match, and
actions at LUST sites up to the State's 10
percent match.
The Orphan Site Account within the HSRAF
may provide an additional $3M/vr with equal
amounts collected from hazardous substances
fee, petroleum fee, and solid waste tipping fee.
207
-------
OREGON (continued)
ENFORCEMENT
ECD favors an approach that seeks voluntary
cleanup from PRPs prior to issuance of orders;
use of the Fund is agency's last choice. As of
4/89, ECD is involved at all seven (7) NPL
sites and has 24 voluntary PRP cleanups.
Although the statute is not clear, ECD assumes
liability is joint and several; this has not yet
been challenged.
CLEANUP ACTIVITIES
ECD has asked for one (1) NPL lead, and
may consider a second one.
CLEANUP POLICIES
AND CRITERIA
Regulations require cleanup to background
(pre-release) levels. If this is infeasible, a
remedial action is to be selected that attains the
lowest concentration level that satisfies certain
protective and feasibility requirements.
PUBLIC PARTICIPATION
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.
The law mandates public notice of DEQ's
program for identifying releases, proposed settle-
ment agreements, and all proposed remedial
actions with a 30-day comment period. Public
meetings are required for proposed remedial
actions if requested by a minimum of 10
people. Public notice provided for final remedial
action.
FEDERAL/STATE
PARTNERSHIP
SMOA in plans, MAs, CAs for all seven (7)
NPL sites, multisite CAs for PAs and Sis. One
(1) community is considering a technical
assistance grant There is a CORE Grant for
FY88.
208
-------
NPL sites
Proposed NPL
State database
SITES
25
20
700 (includes NPL sites,
State sites, and sites which
have been cleaned up)
WASHINGTON
[8/11/89]
• .O ' : ' T STATUTE *.'•
Model T&xics Control Act (Initiative No. 97), voted into Jaw Nov. 1988, effective Ma«* U 1989 (teplaced
Hazaidoss Waste Cleanup LJIIW, Wash. Rev, Code eh. 70J05B {198?)), M&rtiye authorises funding for
two accounts, enforcement and public participation procedures.
STATE AGENCY
Department of Ecology, under the Assistant
Director for Waste Management, has 110 staff
on the Hazardous Waste Investigations and
Cleanup Program. 20 of the positions are
federally funded-the remaining are supported by
the State Toxics Control Account and General
Fund (starting July 1, 1989 all administration
funding from Account). The Attorney General's
office, handling cost recovery and settlements,
has approx. 3-4 FTEs working on cleanups.
FUNDING
Two accounts: (1) State Toxics Control
Account and (2) Local Toxics Control Account
State account from tax on wholesale value of
hazardous substances funded by 47% of tax
revenue, cost recovery, appropriations (ending
after July 1, 1989), penalties and fines, and any
earnings on Fund balance. Balance in Fund
estimated to be under $1M on 6/30/89. Amount
collected per year available for cleanup $8.SM.
No cap on Fund. State account funds other
agencies, in addition to various divisions within
Ecology.
Fund can be used for emergency response,
studies and design, remedial actions and O&M,
State CERCLA match. Part of cleanup Fund set
aside for LUST hardship cleanups. Penalties
and fines earmarked for best management
practices and recycling, not cleanup.
Local account receives 53% of tax revenue
from tax on wholesale value of hazardous sub-
stances to help local governments pay for site
cleanups, waste planning, reduction and
recycling.
209
-------
WASHINGTON (continued)
ENFORCEMENT
Initiative provides for strict, joint and several
liability, subpoena authority, orders for site
access, administrative and consent order
authority, injunctive action, civil penalties (up to
$25K/day), cost recovery, treble damages.
Citizen suits and contractor indemnification
authorized. Consent decree must be obtained by
AG and issued by Court. Approx. 60-70% of
cases resolved through negotiation, 30-40%
through enforcement orders. Only one (1)
traditional cost recovery action at NPL site-cost
recovery usually built into consent decrees.
CLEANUP ACTIVITIES
12 NPL State-lead sites (in addition to
Hanford site which is a mix of authorities).
Fewer than 20 sites with completed remedial
actions, 101 State and 45 NPL cleanups in
progress.
CLEANUP POLICIES
AND CRITERIA
At least as stringent as all applicable State
and Federal laws, including health-based
standards under State and Federal law. State
standards under development.
PUBLIC PARTICIPATION
DOE must establish regional citizens'
advisory committees, notify public of develop-
ment of investigating or remedial plans, give
concurrent public notice of all compliance
orders, enforcement orders, or notices of viola-
tion. Provisions do not necessarily apply at
remedial selection phase. Dept in process of
developing administrative record and ROD
policy. Initiative authorizes public participation
grants to affected persons or not-for-profit
public interest organization.
FEDERAL/STATE
PARTNERSHIP
State in process of converting operating
agreement into SMOA.
CORE Grant in FY87. State has MSCA,
MA, and CAs.
210
-------
APPENDIX
SAMPLE INFORMATION
WORKSHEET
211
-------
STATE NAME
A. ENABLING LEGISLATION AND REGULATION
Enabling Legislation or Regulation and Date of Enactment
[if amended, describe significant changes]
Related Legislation or Regulations and Date of Enactment
[including funding mechanisms]
B. STATISTICS [please note when statistics compiled]
# of suspected and unconfirmed sites:
# of sites on State's priority list:(including NPL sites?)
# of sites on NPL final (proposed):
# of Federal Facilities:
Additional Statistical Information;
C. PROGRAM DESCRIPTION
Overview of Program
[division, offices, responsibilities & division of labor]
[do they work only on Superfund?]
[ "as of _/_/__" # of staff, size of budget]
[ where is legal support located?]
1. Organization and Personnel
Lead Agency
Other Agencies
2. Funding
Funding Vehicle(s): [name of Fund]
212
-------
Funding Source(s): [give approximate proportions]
appropriations
bonds
cost recovery
penalties/fines
taxes
fees
transfers from other funds
others
Balance in Fund as of / / ;
Average Amount Collected per FY:
Cap on Fund:
Source of Administrative Support Costs
Use of and Restrictions on Fund Monies
emergency reponse
removals
studies and design
remedial actions
operations and maintenance
State CERCLA match
actions at LUST sites
victim compensation
Monies collected in enforcement actions
$ recovered:
$ collected in fines and penalties:
Where are these $'s placed?
3. Contracting Practices
Procurement Practices
REMs
ARCs
Lab Work (State/contract)
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Program Functions
1. Ranking System
[if different than EPA's - describe factors]
2. Standards for Cleanup and Design
[types of remedies undertaken]
3. Additional Prerequisites for Remedy Selection
[administrative record, citizen participation/comment period]
D. LEGAL AUTHORITIES
1. Authorities Available (note § of statute)
Liability Standard
Orders for Information
Orders for Site Access
Subpoena Authority
Administrative Order Authority
Consent Order Authority
Injunctive Action
Civil Penalties
Cost Recovery
Liens
Punitive Damages
Criminal Penalties
Citizen Suits
Other
2. Preferred Enforcement Method
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E. OTHER INFORMATION
Federal/State Relationship
Superfund Memorandum Of Agreement (SMOA)
Cooperative Agreements (CAs)
Site-Specific Enforcement Agreements
Management Assistance Grants (MAs)
Technical Assistance Grants (TAGs)
CORE Grants
Local Government Involvement
Public Participation
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CONTACT SHEET
NAME OFFICE/TITLE PHONE
.S.GOVERNMENT PRINTING OFFI CEI I 98g_748- 1 59/00364
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