Analysis Of State Superfund Programs 50 State Study 1991 Update


                                      .
           United States       Office of Emergency and    PublicationJ}375.6-08B
           Environmental Protection   Remedial Response     PB92-9634t8
           Agency          Washington, DC 20460    December 1991

           Superfund
&EPA    An Analysis of State
           Superfund Programs:
           50-State Study

           1991 Update

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                             Publication 9375.6-08B
                             December 1991
          AN ANALYSIS OF STATE
         SUPERFUND PROGRAMS:
        50-State Study, 1991 Update
                                                 , ft "'-.-.->
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     Office of Emergency and Remedial Response
          Hazardous Site Control Division
             Washington, DC 20460

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                           ACKNOWLEDGEMENTS
      This report was prepared by the Environmental Law Institute under Cooperative
Agreement CR-817553-01 with funding from the U.S. Environmental Protection Agency.
Environmental Law Institute staff contributing to the report were Marta Costanzo, Kathryn
Groothuis,  Heather Hewett,  Suellen Keiner,  Moira Mcdonald, James McElfish, John
Pendergrass and Anne Platt. Rebecca Donnellan also contributed to this report. EPA staff
were Hugo Fleischman, Ann McDonough, William Ross and Murray Newton.  The
assistance of state program officials is gratefully acknowledged.

      The information in this document has been funded wholly or in part by the United
States Environmental Protection Agency under assistance agreement CR-817553-01 to the
Environmental Law Institute.  It has been subjected to the Agency's peer and administrative
review and has been approved for publication as an EPA document. Mention of trade
names or commercial products does not constitute endorsement or recommendation for use.
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                        TABLE OF CONTENTS
                                                             Page No.
LIST OF ACRONYMS  	    v
I.    INTRODUCTION	    1
II.   DEVELOPMENTS IN STATE PROGRAMS 	    5
HI.   STATE "SUPERFUND" PROGRAMS  	    7
     Overview of Cleanup Activities and Capabilities	    7
     Statutes	    8
     Hazardous Waste Sites  	    9
     Program Organization	    13
     Funding	    19
     Enforcement	    31
     Cleanup  Policies and Criteria	    37
     Public Participation	    40
IV.   STATE PROPERTY TRANSFER PROVISIONS	    43
V.   50-STATE TABLES 	    51
VI.   STATE SUMMARIES  	    135
     Region I 	    137
     Region II	    151
     Region HI	    159
     Region IV	    173
     Region V	    191
     Region VI	    205
     Region VH 	    217
     Region VIII	    227
     Region IX	    241
     Region X	    251
                                  ui

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                           TABLE OF CONTENTS


Table                                                                  Page No.

V-l   Overview of State Cleanup Activities
      and Capabilities	    51

V-2   Statutory Authorities and Provisions	    55

V-3   Hazardous Waste Sites  	    61

V-4   Program Organization	    66

V-5   Program Administration and Staff:
      Funding Sources  	    71

V-6   State/Federal Partnership 	    75

V-7   Funding of State Cleanup Activities	    78

V-8   Fund Expenditures	    87

V-9   Uses  of State Cleanup Funds	    93

V-10  Liability Standards	    102

V-ll  Penalties and Damages Available in State
      Superfund Statute  	    106

V-12  Natural Resources Damage Assessment	    110

V-13  State Cleanup Policies and Criteria 	    115

V-14  State Public Participation Procedures	    123

V-15  Property Transfer Provisions  	    130
                                        IV

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                          LIST OF ACRONYMS
AG         - Attorney General
ARARs     - Applicable or Relevant and Appropriate Requirements
ASTSWMO  - Association of State and Territorial Solid Waste Management Officials
CA         - Cooperative Agreement
CERCLA    - Comprehensive Environmental Response, Compensation, and Liability
              Act of 1980
CERCLIS    - Comprehensive Environmental Response, Compensation, and Liability
              Information System
CPCA       - Core Program Cooperative Agreement
DSMOA     - Department of Defense and State Memorandum of Agreement
ELI         - Environmental Law Institute
FTE        - Full-time Equivalent
GAO       - General Accounting Office
HRS        - Hazard Ranking System
LUST       - Leaking Underground Storage Tank
MCL       - Maximum Contaminant Level
MSCA       - Multi-Site Cooperative Agreement
NEAR       - Non-Binding Allocation of Responsibility
NCP        - National Oil and Hazardous Substances Pollution Contingency Plan
NPL        - National Priorities List for Uncontrolled Hazardous Waste Sites
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

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SACA       -  Support Agency Cooperative Agreement
SARA       -  Superfund Amendments and Reauthorization Act of 1986
SMOA      -  Superfund Memorandum of Agreement
TAG        -  Technical Assistance Grant
UST        -  Underground Storage Tank
                                    VI

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CHAPTER I

INTRODUCTION
In the eleven years since passage of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA, generally referred to as Superfund),
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, they will have to be cleaned up 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 depend on the willingness and capacity of States to develop
effective programs, and obtain adequate State 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 updates the results of a study initially conducted in 1989, and updated
in 1990, by the Environmental Law Institute (ELJ) for the U.S. 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
SO States and provides descriptions of statutes, program organization, funding, and cleanup
procedures. This year the District of Columbia and the Commonwealth of Puerto Rico were
added, so that the "50-State Study" now contains information from 52 jurisdictions. In place
of the 1990 update's analysis of political subdivision involvement in the cleanup process, this
1991 update analyzes the property transfer provisions of States superfund programs in
Chapter IV. The report provides detailed information for each State in a "State Summaries"
chapter and in all State tables that facilitate comparisons between States. The 1991 Tables
include the District of Columbia and the Commonwealth of Puerto Rico but the 1989 and
1990 Tables did not. Thus, comparisons of aggregate data must take into account the
addition of the two jurisdictions. Throughout this report, references to "States" are intended
to include both the District of Columbia and Puerto Rico.

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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. As part
of its responsibilities, the SLCB tries to maintain comprehensive information about State
capabilities to contribute to or manage cleanups at hazardous waste sites. Under a
cooperative agreement with EPA, ELI has collected, organized, and summarized the
information presented here on State cleanup programs.
Research Methodology

To ensure that the information for this report is complete, accurate, and up to date,
the project team spent several weeks gathering and analyzing research reports, statutes,
regulations, and other State documents, interviewing State program staff by telephone, and
confirming information for each State. ELI initially reviewed both information gathered for
the 1990 version of the report and newer information concerning State cleanup programs
as found in State documents, legislative reporting services, newsletters, and EPA documents.
Worksheets were developed to organize information on each State. Based on the contents
of these worksheets, ELI drafted requests for information tailored to each State program.
A detailed request for information was sent to each State, along with a general request for
copies of any relevant legislative amendments or State reports. In addition to the responses
to the detailed requests for updated program information, ELI received a variety of
materials from the States, including annual program status reports, legislative amendments,
program descriptions, and regulations.

ELI then conducted telephone interviews to obtain information that was not provided
in response to the requests for information, to clarify ambiguities in the information
provided, and to confirm information that had previously been compiled. ELI used this new
information to update the two-page summaries of State programs. ELI then sent each State
program office the revised 1991 summary for that State for review; appropriate changes
were made in response to State officials' corrections. The 1990 set of tables for all the
States was also revised to reflect the new information, including information for the two
jurisdictions added to the 1991 update. These are presented in Chapters V and VI.
Organization of the Report

The remainder of this report is divided into three substantive chapters. Chapter II
highlights the more noteworthy developments in State capabilities that emerged in
comparing the 1991 information with the 1989 and 1990 data. An overview of State
superfund programs is provided in Chapter III. This overview examines statutes, program
funding and organization, enforcement, and the remediation process. Chapter IV discusses
State property transfer programs. Chapter V presents program information arranged in
tables that facilitate comparisons between States. Chapter VI contains the two-page

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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.  ^
                                                                         i
      In assembling this report, ELI has tried to take 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 December 2, 1991. States were provided an opportunity to review
and update  all  of the  information in the State Summaries; 38 States provided revised
program information and the remaining 14 States affirmed that the State summaries were
accurate.

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CHAPTER n

DEVELOPMENTS IN STATE PROGRAMS
The extent of the States' involvement in the remediation of hazardous waste sites is
a function of their capacity to develop and implement effective cleanup programs. This
capacity can be assessed through an examination of the resources available to the States for
cleanup purposes-statutory authority, funding, and staff-as presented in this report. In
comparing the 1989 and 1990 data concerning these resources with the information that was
collected in 1991 for the current version of this study, it is clear that the States' programs
have continued to develop, but that the changes are less dramatic and more incremental
than was the case in the late 1980s. The recession affected a number of States' programs,
particularly New Jersey's where $153.8 million was reallocated from a cleanup fund to
balance the State budget.

An additional two States (Alaska and Kentucky) are now operating cleanup programs
supported by enforcement authorities and dedicated funds, bringing the number of complete
programs to 29. Only one State made fundamental changes to its statutory authority in the
past year. In October 1990 Michigan's Governor signed legislation creating specific
enforcement authority (effective July 1, 1991) under the State's superfund law.

The funding available at the State level has decreased 16% since 1990 but is still
significantly higher than in 1989. The total of the unobligated balances available in the State
Funds as reported in 1991 is $586.2 million compared to $699.4 million in 1990 and $415
million in 1989. The entire decrease can be attributed to the decrease in New Jersey's
balance in excess of $148 million. The average of the Fund balances is $11.27 million,
compared to $14.27 million in 1990 and $8.3 million in 1989. Fifteen States, one more than
1990, have Fund balances in excess of $10 million; there were nine such States in 1989.
(These 15 large Funds, however, contain over 91% of the total State superfund balance.)
Twenty nine States have less than $5 million available for cleanups. A few States report that
all or part of their relatively large cleanup funds were used to balance their State budgets
at the end of Fiscal year 1991.

States spent or encumbered a total of at least $427.7 million for cleanups in the past
year. One State (California) encumbered more than $50 million for cleanups in fiscal year
1991 and ten other States spent or encumbered more than $10 million during the year
(83.4% of the total).

Despite lower total funding levels, cleanup program staff levels continued to
experience noteworthy increases during the past year, with 30 States reporting more staff
in 1991 than in 1990. Only seven States report a decrease in cleanup program staff. A total
of 3,656 State personnel, including attorneys, work on superfund programs.

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      These few statistics are simply the more outstanding indicators of an overall trend
toward increased State cleanup capacity. A close examination of the information contained
in this updated report will lead to a fuller understanding of the cleanup programs that are
emerging as States continue to address the hazardous waste sites within their borders.

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CHAPTER

STATE "SUPERFUND" PROGRAMS
The passage of CERCLA in 1980 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. For the purposes of this study 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 50
States, the District of Columbia, and the Commonwealth of Puerto Rico. The latter two
jurisdictions were added to the study in 1991 and are included in all the "Fifty-State" tables.
This 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 is to provide a general assessment of States' efforts
and capabilities to address hazardous waste sites. This is a formidable task because of the
dynamic nature of funding and the many changes that have occurred in the last few years.
A number of States have enacted or amended existing "superfund" legislation within the last
four years. Some of these States' programs have not reached optimal 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.

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A second project goal is to illustrate areas where the States are making progress in
enhancing their cleanup capabilities. For some States, this may mean the passage of
enabling legislation, while for others it may entail an increase in available funding or
program staff.

Table V-l summarizes States' capabilities and cleanup activities at the present time.
Twenty-nine States with Funds and enforcement authorities are conducting programs for
removals and remedial actions at non-NPL sites. This is an increase of two States with active
cleanup and oversight programs (Alaska and Kentucky) since 1990. Some of these States
also manage or oversee cleanups at NPL sites as well.

Twelve additional States have the legal capability to conduct public or RP-lead
cleanups at non-NPL sites but have limited cleanup activities at present. Typically, the
limited activity is attributable to relatively low Fund balances and/or inadequate staffing
levels. In some instances, the State's Fund is replenished at specific time intervals and the
lull in cleanup activities is temporary. Activities have so far been limited in several States
as they establish program offices and hire staff. In some cases this is because legislation was
only recently enacted (e.g., Delaware), while in others the legislation has existed for several
years but funding has been lacking (e.g., Alabama).

Of the remaining eleven States, some lack enforcement authorities, others have funds
only for NPL CERCLA match requirements (but not for state-lead removals or cleanups),
and others lack any program. Nebraska and the District of Columbia are the only States
without a cleanup Fund of any kind.
B. Statutes

Beginning in the early 1980s, many States enacted laws in the image of CERCLA that
established State response funds. These statutes 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, and restrictions. Table V-2
provides a summary of the principal cleanup statutes and selected provisions for the fifty
States, Puerto Rico and the District of Columbia.

The pace of change in State superfund statutes has slowed in the past two years,
partly due to the fact that virtually all the States now have some type of cleanup statute. In
1991, only one new state, Michigan, passed a comprehensive Environmental Response Act
that expanded its existing fund and program to include enforcement authorities and a
property transfer program. A total of thirty-nine States now have statutes providing full
Fund and enforcement capabilities. The remaining States have funds with limited
capabilities and/or enforcement authorities in statutes that were not specifically intended
to address hazardous waste sites. Ten States and Puerto Rico fall into this latter category
(see section F of this chapter for more details). All States, except Nebraska and the District
of Columbia, have a cleanup fund or an account that can be tapped for some or all types
of cleanup costs (greater detail on funding is provided in Section E).

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The greatest change occurred in the number of States which either make use of or
are authorized to develop a priority list for State sites. Twenty-four States, three more than
last year, reported the use of priority lists; Oregon, which was previously developing its list,
now has it in place. 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; or (3) a multi-tiered list indicating
the urgency and extent of remediation required. A number of States also have an inventory
or registry of sites which are of particular interest to the State (see Section C below).

Seventeen States, two more than last year, 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
civil penalties in civil actions filed by citizens. Citizen suits and property transfer programs
(discussed below and in Chapter IV) provide alternative methods for accomplishing cleanups
outside of the superfund process.

Fourteen States have provisions for compensating victims of hazardous waste
releases. In eight States, this compensation is limited to reimbursement for costs of securing
temporary or permanent alternative water supplies. The remaining five 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. For this Update, more extensive information was collected about property transfer
programs in the States. A detailed analysis of these programs is contained in Chapter IV.
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 that they pose, the number
of sites reported in a State can be indicative of the level of program activity, as well as the
need for future cleanup activity. Table V-3 reports the number of sites contained in various
categories of hazardous waste sites in each of the 50 States. Figure III-l on page 10 shows
the number of sites on the Federal NPL in each State.

The numbers of sites listed in each state are not always comparable. Different States
use vastly different criteria to determine placement on the State's list of hazardous waste
sites. For example, Vermont lists 1100 sites on its State Registry. This figure is high in
comparison with other States of similar size. Vermont combines all hazardous waste issues
into one program and includes all petroleum cleanup sites on its list of hazardous waste
sites.

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Each of the States lists the number of total known and suspected sites in the State
(often this number is taken from CERCLIS, a database maintained by the EPA). The Total
Number of Sites Needing Attention are those sites of the previous list that have been
evaluated and determined to require some level of action. In addition to these two
categories, some states maintain either a State registry or a priority list. In this year's study,
the two separate categories of registry/inventory and priority list were merged into one
category. This change was made because investigation revealed that some "priority lists"
were not actually used to determine which sites should be addressed first while some
"registries" were used for that purpose. Given this overlap in function continuing to
distinguish the two categories seemed inappropriate.
Priority Lists and Registries

Many States have developed a registry or priority list to determine the order in which
State sites will be remediated. Although each State attaches its own meaning to the priority
list or registry, generally these lists indicate that the sites on the list have undergone an
additional level of analysis. For the most part, such a list requires prioritization of sites
though a ranking, scoring, or formal screening procedure. In Texas, the State Registry is
statutorily mandated, and sites listed on it are ranked by priority.

In most cases, the list includes all the sites listed on the NPL. Some States, such as
Connecticut, keep a registry that includes NPL sites as well as a sub-list of State-lead NPL
sites, which in Connecticut includes five sites. Maryland compiles a Disposal Site Registry
which is a list of ranked sites, including NPL sites, requiring remedial action. 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 fires and explosion, toxic
hazard and other criteria established in CERCLA

Ten States organize their ranked lists into priority areas or tiered ranks. California,
for instance, has a three tiered priority list that includes immediate, substantial and limited
threats for sites needing cleanup. Iowa and Missouri both maintain registries of hazardous
waste sites that classify sites in a five-tiered system where sites are ranked in categories from
immediate action required to no action required. Ohio's list is less formal, but contains sites
categorized after a preliminary assessment as high, medium or low priority.

Ranking Systems

Not all States have a formal ranking system. Many, however, do categorize sites
using one of several systems including the Federal Hazardous Ranking System (HRS II),
modified HRS II, and other non-quantitative systems. Most States which use a formal
ranking system use HRS II or HRS II with some modifications. HRS II, the ranking system
that is used to determine the National Priorities List, was developed by the EPA and
implemented in 1990 (replacing the original HRS). The original HRS was altered to be
more encompassing. It now takes into consideration potential for air release and two new
routes of exposure; exposure through soil contact and exposure through the human food
chain. South Carolina uses the original HRS system to score sites and includes on its State

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priority list all sites that score less than 28.5 according to the HRS (in other words, those
that do not qualify for the NPL).

       HRS II includes  a  more  extensive evaluation  of factors  such as surrounding
population, groundwater,  and wind patterns than the previous HRS system. Because the
new system requires more staff time, many States, such as Minnesota, have modified the
HRS II system to make it more practicable for State use. The Michigan Site Assessment
Model (MSAM) differs from HRS II in various ways.  MSAM measures potential exposure
by fire and explosion - factors not included in the current HRS II numerical score.

       New York has 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.
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        FIGURE III-l
FINAL AND PROPOSED NPL SITES
        January 1992
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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 the Illinois
Environmental Protection Agency, or its duties may be broader, e.g., Colorado's Department
of Health. Table V-4 lists the responsible agencies for the 50 States, Puerto Rico, and the
District of Columbia.

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 the program administration. Table V-4 presents by name the specific units
within the State agencies that constitute the State's cleanup programs, as well as their staff
levels. The examples highlighted below represent some of the more noteworthy
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 Department of Environmental
Protection's Site Investigation and Remediation Division consists of 27 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 program cooperative agreement (CPCA) with the U.S. EPA.
The site management units supervise sites from discovery through cost recovery.

In Pennsylvania, the Department of Environmental Resources has approximately 127
staff in the State superfund program and funded by the Fund--30 in the Hazardous Waste
Sites Cleanup Program in the Bureau of Waste Management, 77 in the six regional offices,
12 in fee collection, four in construction management, and four, added in FY91, in advanced
science and research.
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Case Management Team

Several States (e.g., Maine, Minnesota, New Jersey, and Oregon) 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 assumes oversight responsibility. For a more detailed discussion of State
cases management teams see Enhancing State Superfund Capabilities: A Nine State Study.
U.S. EPA (PM-220) (1990).

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. During 1991, Vermont added Corrective Action
and LUST activities to the authority of the eleven technical personnel who work in the
Section.
Intragency Activity

In many States, other divisions within the responsible agency provide support to
cleanup personnel. For example, air quality 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.

Arizona's Department of Environmental Quality has 14 technical staff who manage
site activities in the Office of Waste Programs and seven hydrologists who work on site
cleanup issues in the Office of Water Quality. Upon request under interagency agreements,
the Department of Health Services performs epidemiological studies for the State Superfund
Program.
Program Changes

Since 1990, there have been basically two types of program changes-changes which
affect the State Superfund process and changes which affect enforcement authorities and
program structure.

In terms of process change, South Dakota designated its Division of Environmental
Regulations to serve as the lead agency. Two staff members are dedicated to work full-time
on the State Superfund program. It should also be noted that the number of identified sites
has increased from one to 73 in the past year.

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Program structures changed in several states over the past year, Iowa eliminated its
State Abandoned and Uncontrolled Sites Registry and added one staff member to the Solid
Waste Section for a net loss of three staff members. Maryland removed LUST and UST
activities from the CERCLA program. In reorganizing its program, Vermont expanded the
scope of the Hazardous Sites Management Section to include Corrective Action and LUST
activities in its State superfund program.

Tennessee, Utah and California shifted the authority of their State superfund
programs from one department to another. Other states reorganized Superfund divisions,
bureaus, and sections, often because of changes in funding levels.

Staffing Levels

The number of personnel devoted to site cleanup varies greatly, from the
approximately 800 people in New Jersey's Divisions of Publicly Funded Site Remediation
and Responsible Party Site Remediation (with some RCRA-type responsibilities), to
Wyoming which has one full-time person in the Water Quality Division. Program staff
levels are indicated on Table V-4. In total 3,394 personnel in the States are working on
cleanup programs, with an additional 262 attorneys handling cleanup cases and issues. Ten
States, an increase of two since 1990, have over 100 people working on cleanup activities:
California, Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania,
Washington, and Wisconsin. Michigan and Wisconsin both increased their staff levels over
100 in the past year. These States all have very large numbers of confirmed or suspected
sites; Washington with 950 sites on its State database has the fewest number of sites among
these ten States.

Only three States have staff levels between 51 and 100 people: Florida, Minnesota,
and Oregon. Again, each of these States has a great many sites, at least 400 confirmed or
suspected. The largest number of States (28) have between 11 and 50 personnel, while 11
States have 10 or fewer people assigned to their programs. Figure III presents the staffing
distribution for the 50 States.

Staff levels increased in 30 States over the levels reported in 1990, including Puerto
Rico and the District of Columbia. Seven States reported a decrease in cleanup program
staff over the year, while the number of personnel remained constant in 15 States.

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 those personnel devote to cleanup activities. In Table V-4, the number of personnel
with split duties is indicated by a footnote, with the explanation that some staff also perform
non-superfund work. Seven States have more program positions authorized than are
currently filled, due largely to lack of funding. In Massachusetts, for example, 460 (up from
286 in 1990) superfund-related positions are authorized within the Department of
Environmental Protection, but only 208 are filled.
15

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PROGRAM STAFF LEVELS

Number of Personnel Number of States
Over 100
51-100
11-50
0-10
10
3
28
11
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. Over 15 States rely
on their Departments of Health or equivalent agencies for assistance and guidance in risk
assessment and standard-setting. Generally, either the State's Department of Natural
Resources (DNR) or the Department of Environmental Protection (DEP) is the lead agency
for program administration. In cases where the DNR or DEP are not one of the lead
agencies, they are consulted regarding natural resources damages and related issues.
Emergency response activities often involve the State Department of Transportation.
Regional Water Quality Control Boards in California have asserted jurisdiction over some
remediation activities, as have Regional Groundwater Management Districts in Kansas.

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. In many
States the attorneys assigned to handle superfund cases and issues also handle other types
of cases. Approximately 260 attorneys were reported by the States to be working on
superfund issues. Twenty-six States report that the State AG's Office is the primary source
of legal support for the cleanup program, while agency legal personnel provide the primary
support for ten State programs. Fifteen States rely upon a combination of attorneys from
both the AG's Office and the responsible agency. The District of Columbia indicates that
their program is receiving no legal support. Table V-4 presents sources of legal support for
the 50 States, Puerto Rico and the District of Columbia.

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
16

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States reporting staff levels at the AG's Office, 23 reported that they have four or fewer full-
time employees working on cleanup cases. Only Colorado (14), California (9),
Massachusetts (8), Michigan (7.5), and New York (7) reported higher figures. The most
significant change in legal staffing occurred in New Jersey. As part of a general
reorganization of legal staff, attorneys formerly assigned to the DEPE were reassigned to
the AG's Office. A new Hazardous Waste Litigation Section, which has 30 full-time
attorneys, was created in the AG's Office. Twenty-six States reported agency staff levels;
of these States, 13 devote five or fewer full-time employees to cleanup cases, and seven
States have between six and ten full-time staff. New York's Department of Environmental
Conservation Division of Environmental Enforcement has 20 staff (a decrease of five since
1990), while the Chief Counsel's Office in Pennsylvania's Department of Environmental
Regulation has 18 cleanup-related legal support staff (an increase of six since 1990).
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 States are presented in Table V-5. Forty-nine States fund their program
staffs through a combination of Federal grants and State monies. State funding is obtained
only through general fund appropriations in fifteen of these States, while fourteen States rely
only upon their separate site cleanup funds for the State share of administrative and
personnel costs. Fifteen States use a combination of general fund appropriations and
cleanup fund monies to pay staff and administrative costs, and one State (Nevada) obtains
all of its State funding for administration through its Hazardous Waste fees. A few States
have incidental funding sources, indicated under the "Other" heading on Table V-5.

Two States (Nebraska and Oklahoma) rely solely upon Federal funding to support
their cleanup programs. These two Federally-supported programs are relatively small,
however, each having less than ten staff. In past years Delaware's program was also entirely
federally funded, but in 1991 it received funding for program administration from its new
Hazardous Substance Cleanup Fund and from the State's general fund. The District of
Columbia has no staff and no funding for program administration.

Table V-6 presents the various Federal CERCLA grants available to the States-Site
Specific Cooperative Agreements (SSCAs), Multi-Site Cooperative Agreements (MSCAs),
Support Agency Cooperative Agreements (SACAs), and Core Program Cooperative Agree-
ments (CPCAs)--and indicates which States receive funds through these grant mechanisms.
A SSCA 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. An SACA grant provides funding to States with limited cleanup staffs to enable
them to provide oversight assistance on EPA-lead sites. CPCAs are available to fund non-
site-specific program administration activities, such as database maintenance.
17

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         FIGURE III-2
STATE "SUPERFUND" PROGRAM STAFF
                         O
                         O
                     O  O
                  O O  T-
                  m ^~
                         O
                   o  o  -*-1
              18

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Forty-five States report having CPCAs, 30 have SACAs, 22 have SSCAs, 38 have
MSCAs, and one State has a draft MSCA. Since 1990, four more States reported having
CPCAs and 16 more reported having MSCAs. Only two States, North Dakota and
Wyoming, 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.
STATES RECEIVING FEDERAL CERCLA ASSISTANCE

SSCAs MSCAs SACAs CPCAs

22 38 30 45
States with Superfund Memoranda of Agreement (SMOAs) are also indicated on
Table V-6 and Figure III-3. 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. Unlike cooperative agreements with
EPA, SMOAs do not provide funding for States. SMOA terms range from very broad to
very specific. Eighteen States currently have signed SMOAs, three have draft SMOAs, and
six States are negotiating with EPA over SMOA terms.
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 expenditures for 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
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.
19

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               FIGURE III-3
SMOAS SIGNED OR IN NEGOTIATION/DRAFT STAGE
                      >     0
                     U3     u-
                     t5  "   Q
                      o .
                        
                     D
                   20

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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. Of course, in order to
effectively clean up sites the Fund must be large enough to pay for whatever cleanup
activities may arise. If the State can clean up the site and recover its costs in a timely
manner then RPs may decide that it is in their interests to agree to conduct future cleanups.
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 50 States (including Puerto Rico) for one
or more purposes relating to mitigation of hazardous waste risks (see Table V-7). Nebraska
and the District of Columbia are the only States without an authorized cleanup Fund. Not
all State Funds or accounts are included in Table V-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 included in the State summaries in
Chapter VI.

Eighteen States have more than one Fund or account for handling hazardous waste
site cleanups (an increase of two since 1990). 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 DEPE taps the latter Fund first for
cleanups.

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 Table V-7 and Table V-9. A synthesis of State trends in
funding is presented below.
Fund Balances and Additions

Analysis of Fund balances and additions would ideally provide a sense of the States'
capacities to pay for cleanups. The Fund balance measures the current availability of funds
while estimated additions to the Fund provide a sense of a State's potential to sustain and
increase the Fund over time. Both measures of capacity are flawed, however, particularly
when comparisons are made across States. Some of the problems:

1. Up-to-date balances as of a single date cannot be obtained for all Funds
from every State-dates span a year's time ranging from October 1990
to December 1991.

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. At least one of California's Funds, for
example, has had a balance of $0 at the end of the fiscal year in each
of the last two years, even though its annual expenditures on cleanups
are in the $50 million range.

3. A distinction should be drawn between authorizations and
appropriations. Authorization may provide a better sense of capacity, if
appropriations are 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 if some portion of a Fund is
encumbered (e.g., CERCLA cost share) and thus there is actually a
smaller amount of funds available.

With these caveats in mind, the total unobligated State "superfund" balance for all States,
including Puerto Rico and the District of Columbia, is approximately $603.7 million, a
decrease of $95.7 million from the balance of $699.4 million in 1990 (13.7%) but still 45%
higher than the $415 million in 1989. Since obligated funds have been earmarked for a
particular use and are therefore not available for use on new projects, they are not counted
in the balance totals. An additional $1,614.8 million in bonds is authorized in six States-a
decrease of $114.4 million from 1990 and a total decrease of $366.2 million since 1989.

As in 1989 and 1990, the distribution of Funds continues to be heavily weighted
towards lower levels of funding: including bond authorizations, 13 States have less than $1
million, 14 States have from $1 million up to $5 million (1 less than 1990), 5 States have
from $5 million up to $10 million (1 more than 1990), 14 States have from $10 million up
to $50 million (1 more than 1990), and 4 States have more than $50 million (unchanged)
(see Figure III-4).

As was the case in 1990, a disproportionate amount (35%) of the total State
superfund balance for all States is in New Jersey. New Jersey's share of the total is,
however, significantly less than 1990 when its share was greater than 50%. This is due to
a sharp decline in New Jersey's balance from $358.5 million in 1990 to $210.1 million in
1991. In fact, New Jersey's decrease accounted for the entire decrease in the total Fund
balance and even offset an increase of $52.7 million in the balance for all the other States
combined.

The total amount of money available in Fund balances continues to be concentrated
in a few States. The 15 States with the largest Funds comprise 87% of the total State
"superfund" balance (compared to 90% in 1990 and 78% in 1989). If bond authorizations
are included the disparity between the two groups becomes even larger. The total amount
of funds available for the 18 States with Fund balances (including bonds) of $10 million or
more is $2.140 billion or 96% of the total amount authorized within the States, and $1.854
billion (84%) is in just four States with balances (including bonds) greater than $50 million.

-------
       As noted above, New Jersey reported that $153.8 million from the State's Capital
Fund was returned to the State Treasury or reserved for the purpose of balancing the
budget.

       Thirty four States were able to provide specific information about annual infusions
of money to their Funds.  Most of the other States reported that annual additions to their
Funds were too variable to estimate reliably. The total estimated annual additions to the
Funds of the 34 States reporting figures was $381.6 million, a 13% increase over 1990 when
39 States reported a specific amount.  As with Fund balances, a few States will receive most
of this new funding.  Pennsylvania expects $89 million to be added to its Hazardous Sites
Cleanup Fund and California expects its Hazardous  Substance  Account to receive  $50
million. Another seven States (Alaska, Florida, New Jersey, New York, Ohio, Texas  and
Washington) expect to receive between $10  and $50 million in annual additions to their
Funds.  At the other end of the scale nine States expect to receive less  than $1 million
annually (Alabama, Arkansas, Georgia, Iowa, Montana, New Hampshire, Oklahoma, South
Dakota and West Virginia).  Among the more significant changes in annual additions were
the decrease from $71-76 million to $19.4 million in New Jersey and the increase in Alaska
from $1 million to up to $50 million.
       Sources of Funds

       Table V-7 indicates the sources for State Funds or funding mechanisms and whether
each is a major (contributing more than twenty percent of the Fund's total revenues) or
minor  source.  There are nine 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. 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.
                                        23

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              FIGURE III-4

FUND BALANCE INCLUDING AUTHORIZED BONDS

      (As of date indicated in Table V-7)
                                  o:
                                  LJ
                     {/>  o  o  -Z °
                     U* +* •*•'  ^ ^
                     UJ        O O
                     -j T- m  ^- in
                     D
                    24

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A total of 73 Funds or funding mechanisms for handling cleanup of hazardous waste
sites were identified among the States (18 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
and the number of States that rely on each of the nine types of sources described above,
either as a major or minor source.
SOURCES OF FUNDS
Maior Source For: Minor Source For:

Fees
Appropriations
Penalties/fines
Bonds
Taxes
Cost recovery
Transfers
Interest
General funding
No. of
Funds
25
19
15
15
13
11
2
2
~
No. of
States
22
17
14
13
12
10
2
2
—
No. of
Funds
6
15
34
—
3
44
5
26
12
No. of
States
6
15
30
—
3
39
5
24
10
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 25 Funds in 22 States (an increase of one State since
1990 and three since 1989), and a minor portion of six Funds in another six States. In
addition to 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 have been raised each year between FY 1989 and 1991 to increase the
Fund and discourage hazardous waste generation. 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. 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. South Carolina charges a land disposal fee of $5.00 per ton for hazardous waste
originating within the State, and a minimum of $7.50 per ton for wastes generated outside
25

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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 types of 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 unobligated 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, the 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 fee receipts collected in Missouri; treatment and
disposal fee receipts have declined in Iowa as well.

Appropriations are also a primary source of State cleanup funds or funding
mechanisms. Nineteen Funds (down three from 1990) in 17 States (down one from 1990)
derive a major portion of their revenue from appropriations, and an additional 15 States
provide some level of appropriations for their cleanup Funds. The manner in which funding
is appropriated by State legislatures indicates the flexibility with which a State can handle
hazardous waste cleanups. Many States allocate funding to their superfund programs on a
regular, typically annual, basis. In some States, such as Kansas, however, appropriations for
state-Fund cleanups must be requested on a site-specific basis. Alaska is anomalous in that
the appropriations to the Oil and Hazardous Substance Release Fund come from a tax on
each barrel of oil transported in the Trans-Alaskan pipeline.

Bonds are a major source of funding for 15 Funds in 13 States. Four of these States
(New York, New Jersey, Massachusetts, and Michigan) have been authorized to issue $2.01
billion in bonds, of which $313 million have been issued to date. New York has issued
approximately $227 million out of a total bond authorization of $1.2 billion. Similarly,
Michigan has issued about $38 million of its $425 million authorization, and Massachusetts
has issued $48 million of the initial authorization of $85 million. New Jersey has not issued
any bonds in 1991, reporting that it still has $200 million authorized.

Taxes are a major revenue source for 13 cleanup funds in 12 States (up two since
1990 and three since 1989). 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 and reinstated if it falls below $5 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 and is capped at $1.5 million 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. After November 1992,
Pennsylvania's taxes on capital stock and franchises will be either increased or decreased by
$500,000 depending on whether the Fund balance is below or above the previous year's
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.

Penalties and fines provide a major source of revenue for 15 Funds in 14 States (up
from 12 Funds in 12 States in 1990), and cost recoveries provide a major source for 11
Funds in ten States (an increase of one Fund since 1990). 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.
Fund Expenditures

The amount of money spent by States on cleanups in the past year provides another
indication, in addition to Fund balances and annual additions to Funds, of States'
capabilities to clean up sites contaminated by hazardous substances. The annual additions
to Funds should theoretically be an accurate predictor of States' capabilities to pay for
future cleanups, while Fund balances should indicate capabilities for the coming year.
Reality does not, of course, accord with theory and these two measures do not necessarily
accurately indicate States' cleanup capabilities.

For the 1991 Update a third measure, expenditures from Funds, was added to help
give a more complete picture of States' financial capabilities to conduct cleanups. Fund
expenditures gives some idea of a State's past cleanup capabilities. This can be a good
indicator of future capabilities if other factors show that the State is maintaining a stable
cleanup program.

This year each State was asked how much money had been spent from the State's
Fund(s) during the most recent past fiscal year. Some States did not have figures for the
amount actually spent but did have records for amounts encumbered, i.e. where contractors
have been authorized to do specific work but have not been paid. Other States could not
readily separate amounts spent from those encumbered. Two States did not provide any
information about expenditures. Table V-8 presents the amounts States reported that they
spent or encumbered or a combined figure or both figures separately.

This variation in the basis of the data provided by the States means that comparisons
between States cannot be made across the board. Completely valid comparisons can be
made only after ensuring that the amounts being compared represent the same concept; that
amounts spent are compared with amounts spent and totals that include expenditures plus
encumbrances are compared with similar combined totals. The aggregate figure for all

-------
States is also somewhat misleading since it includes all the amounts reported by States,
whether they were spent or encumbered.

With these caveats in mind, fifty States reported spending or encumbering $427.7
million from State Funds on cleanups in the previous fiscal year. California spent the most
at $57 million, followed by New Jersey ($48.9M) and Alaska ($47M). These three States
accounted for 36% of the total spent or encumbered by all States and eleven States
accounted for $356.8 million or 83% of the total. The majority of the States (33) spent or
encumbered less than $5 million on cleanups.

California is an example of how one measure of capacity can be misleading. Since
1989 its Fund balance at the end of the fiscal year has never exceeded $10 million, yet it
spent more on cleanups in 1991 than any other State. In this case the Fund expenditure
total is a better indicator of the program's capabilities than is the Fund balance, which is
always near zero at the end of the fiscal year because the agency spends all the available
money.

Comparing Fund balances, annual additions to Funds and Fund expenditures can be
an indicator of the stability of a State program. Annual additions that significantly exceed
past annual expenditures may indicate that a State is expanding its program or preparing
to pay for the relatively more expensive remedial actions. Pennsylvania, with a current
balance of $21.8 million and annual additions of $89 million compared to expenditures last
year of $38 million, is an example of a relatively new program that is expanding its resources
and activities. Where annual expenditures exceed additions by a significant amount the
Fund balance becomes critical to the State's ability to maintain its program at the same
level of activity. Decreases in the funding available for New Jersey's cleanup program may,
for example, eventually force it to reduce its cleanup activities, although other factors (see
Chapter IV State Property Transfer Programs) may mitigate the impact of decreased
funding. For the near future, however, New Jersey's Fund balance of $210.1 million plus
$200 million in authorized bonds can absorb expenditures that significantly exceed its annual
additions. In fact, despite the fact that one entire Fund was made unavailable to the
cleanup program, the aggregate balance of the other two Funds grew by $6 million in fiscal
year 1991.

Focusing only on Fund expenditures can also be misleading. Enforcement and other
tools can be effective in obtaining cleanups, rendering Fund-financed cleanups unnecessary.
A number of States have reported, however, that the willingness and demonstrated ability
to cleanup a site by spending State funds provides significant incentive to RPs to agree to
conduct or fund cleanups. Thus, Fund expenditures may be most useful as an indicator of
State cleanup capabilities after several years of data are collected, allowing comparisons
within a State over the years.
28

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Uses of Funds

Table V-9 indicates the uses of State cleanup Funds. There are nine basic types of
activities for which Fund monies may be used: remedial actions, CERCLA match,
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, as well as the number of States having at least one Fund whose monies are or may
be applied to each activity.
USES OF

Emergency response
Removals
Studies and design
Remedial actions
CERCLA match
Operation and maintenance
Victim compensation
Site investigation
Grants to municipalities and
local governments
FUNDS
No. of
States
49
47
45
47
44
42
13
39

No. of
Funds
64
63
58
61
52
52
14
50

12
Emergency response actions remain the most common activity for which Funds
monies are authorized~64 Funds in 49 States may be used for this purpose. Removals, as
part of both emergency and remedial actions, are also widely authorized. At present, 63
Funds in 47 States may be used for this purpose. The gap in the number of States that
authorize remedial actions (47) and the number that authorize operation and maintenance
(42) has narrowed a little, from seven in 1989, perhaps because a few more States have
reached this final stage in the remedial process.

Victim compensation is authorized in 14 States, but in North Carolina water
replacement is authorized under its Solid Waste Management Laws not under its two
cleanup Funds. Thus, victim compensation is an authorized use of the Funds of 13 States.
The nature of compensation is limited to providing alternative drinking water supplies,
except in five States: California, Minnesota, New Jersey, Rhode Island, and Vermont (see
Table V-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,
29

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the State must settle the claim against the Spill Compensation Fund. Seventy eight million
dollars in claims have been filed. Minnesota may partially compensate innocent landowners
for 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 found. With money 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. Other Funds are designated strictly for hazardous waste sites for very limited uses.
Ninety-five percent (95%) of the Colorado Hazardous Substances Response Fund, for
example, must be used for federal CERCLA match.

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 funds a number of activities in addition
to hazardous waste site cleanup, including hazardous and solid waste planning, management,
regulation, enforcement, technical assistance, and public education.

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.

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, due to low funding
levels, it has been used mainly for CERCLA matching funds. The Virginia Fund may be
used for the full range of remedial activities but, containing under one hundred thousand
dollars, its actual use is quite limited. Alabama's Hazardous Substance Cleanup Fund may
be used for remedial actions and operations and maintenance, but with a balance of
$147,000, is primarily used for small-scale emergency removals of drums.

Utah allows a range of site activities, including site investigation and studies and
design, but the State agency may not use the Fund for remediation. Similarly, Colorado's
Fund may be used for site investigation, but not for removals or remediation.
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Special Conditions on Fund Use

Restrictions and preconditions on Fund use are primarily of two types: those that
statutorily require the State to exhaust every funding alternative, whether Federal or private
party, before drawing upon State cleanup monies, and those that require the State cleanup
agency to obtain specific authorization before undertaking any response action. In Alabama,
sites receiving funds must not be on the NPL at the time activity starts; and in several other
States, State funds may be used only where Federal funds are not available or sufficient.
Eighteen States require that an attempt be made to obtain responsible party participation
in site cleanup before State funds are used; many States waive this restriction in the
presence of an imminent threat to public health or the environment. Virtually all States
pursue RP participation first as a matter of practice and policy. Although it appears that
only a relatively small number of States are required to seek alternative fund sources before
using State monies, it is probably safe to assume that many more do so as a matter of policy.

Six States require that the State agency responsible for cleanup obtain prior approval
from some administrative authority before undertaking one or more types of response or
remedial action at hazardous waste sites. All expenditures must be approved by the governor
in New Hampshire, the Pollution Control Board in Minnesota, the Environmental Quality
Council in Wyoming, the Board of Public Works in Maryland, and the agency's Commis-
sioner in Indiana. Arkansas requires a commission to approve expenditures over $30,000.
In six States the agency must obtain prior legislative approval for some types of
expenditures. Washington requires that any expenditure from its State or Local Toxics
Control Account first be appropriated by statute. Oklahoma requires a site-specific appropri-
ation whenever site costs are expected to exceed $1 million; Illinois must get a similar
appropriation if site expenditures will exceed $1 million for a single incident. According to
Illinois program officials, this cap has not affected the program's effectiveness. In Vermont,
non-emergency expenditures over $50,000 must be approved by the legislature or its joint
fiscal committee. Similarly, Delaware's joint fiscal committee must approve any expenditures
that would exceed 15% of the Fund balance. Finally, Nevada's Interim Finance Committee
must approve any studies not already budgeted.

California is the only State that restricts Fund use based on the origin of
contaminants-monies from the State's primary cleanup vehicle, the Hazardous Substance
Account, cannot be used for removals or remedial action if a significant portion of
hazardous substances originated outside the State.
F. 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.
These States may also use other enforcement authorities in dealing with sites, such as water
quality and hazardous and solid waste laws.
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Some States have no enforcement provisions directly linked to State remediation
programs for hazardous sites, either because they have no such program independent of
CERCLA (e.g., Idaho, Nebraska), or because the State's cleanup fund statute was enacted
without supporting enforcement provisions (e.g., West Virginia). Michigan was in this
position until 1990, when it enacted enforcement provisions for its State superfund law.
States without specific superfund enforcement provisions must rely on RCRA-type
authorities, or on enforcement authorities found in water quality or solid waste statutes and
regulations.
Who is Liable?

A key issue for State programs is whether State enforcement provisions can reach all
potentially responsible parties to the same extent that CERCLA can. Owners and operators
of disposal sites can be enforced against under virtually any of the existing State programs.
A more difficult issue is whether enforceable cleanup orders can be issued to generators and
transporters. The ten States that rely on non-superfund enforcement 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. Under these authorities the mere
release of hazardous substances at a site does not support enforcement against former lawful
disposers at that site. Some State solid waste laws or "imminent danger" provisions have a
potentially longer reach. State water quality laws may also 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. Most States define "waters of the State" to include groundwater. (See
Novick, Environmental Law Institute, The Law of Environmental Protection, section
6.03[l][a] (Clark Boardman, 1987, 1988, 1989, 1990)). Because generators or transporters
placed the material when it pollutes or threatens to pollute surface or groundwater they may
be held liable, even though the original placement of the material was lawful. Thus, a
State's most useful enforcement authority, absent a superfund-type enforcement provision,
may well be found in its water quality law.
Liability Standards

Apart from the issue of who may be held liable, there is also the question of the
standard of liability. There are two aspects to the question of liability. First, is the state
standard one of strict liability-that is, based solely on the occurrence of a release or
potential release~or is liability based on proof of 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 State programs.
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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.

Thirty-six States have some form of strict liability standard (see Table V-10). In other
States, however, the standard of liability is not clear. Proof of fault or causation may be
required in order to sustain enforcement orders or to recover costs. 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.

How liability should be divided among responsible parties who have contributed to
hazardous conditions at a site is another important issue. 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. Eighteen States have enacted (or asserted) a strict, joint and
several liability standard. Michigan joined this group in 1990 with new enforcement
legislation. Eight additional States have a strict, joint and several liability standard but have
added a further provision that allows an RP to prove its "proportional" contribution to the
site and thus limit its liability.

Several States (Hawaii, Missouri, Nevada, and South Dakota) have adopted a strict
liability standard, but do not prescribe whether liability is joint and several or proportional.

Six States (Alabama, Arkansas, California, Maryland, Tennessee, and Utah) provide
expressly for a "proportional" liability scheme. (Arkansas does use joint and several liability
for administrative enforcement purposes, but must use proportional liability in judicial
actions and in cost recoveries). Under proportional liability schemes, each RP is responsible
for no more than its proportional share. 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 increases the probability that there may be "orphan" shares of cleanup costs with no
corresponding RPs which must ultimately be borne by the State. Also, to the extent that
proportional liability is applied to enforcement-based actions (orders to conduct studies or
remedial action, as opposed to cost recovery), 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.
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Order Authorities

Forty States and the District of Columbia have the power to issue administrative
orders compelling responsible parties to conduct cleanup activities under "superfund"-type
statutes. (Table V-2). The majority of these States also have administrative order authority
to require responsible parties to provide information and to conduct studies.

Ten States and Puerto Rico rely on RCRA-type, solid waste, or water quality
enforcement authorities to order cleanups. These authorities, as noted above, do not apply
in all circumstances or to all potentially responsible parties.

The fact that a cleanup order may be issued by a State, however, is only partially
informative. State cleanup orders are not always identical to CERCLA section 106 orders,
which provide for no pre-enforcement review. Nor are State orders 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 issue either type of order. In Texas,
the recipient of a cleanup 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, whether it be pre-enforcement or in the
context of agency enforcement of an order or a cost recovery action. 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
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 civil injunction
actions, either to obtain a direct injunction, to enforce an administrative order, or both.
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Enforcement Sanctions

The most important "enforcement" tool under any of the State cleanup programs is
the potential ability to expend the State Fund and recover those costs from RPs. This is
reported by many States 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 threat 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, or where it may be expended on State
sites only after a lengthy and laborious listing process, or only pursuant to site-specific
authorization by the legislature. By contrast, in those States where expenditures can be
authorized and made relatively quickly-as in New Jersey and Minnesota, for example-the
potential State Fund/cost-recovery option produces substantial enforcement success.

The effect of the Fund/cost-recovery threat is enhanced in those States that have a
punitive damages provision. (Table V-ll). These provisions have become increasingly
common, and now exist in 24 States, up from 23 States in 1990 and 22 States in 1989.
Nineteen 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.

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 statute requires "willful" failure to comply. The New Jersey courts have created
a "good faith" defense to such damages.

Civil penalties exist in virtually all of the State enforcement laws as well. Forty-five
States and Puerto Rico report civil penalty provisions. These appear to be less important
in influencing behavior, and are not often assessed. Given the cleanup function of State
superfund programs, the penalties typically apply to failure to comply with an order.
Penalties range from $1,000 per day (Kentucky) to $50,000 per day (Louisiana, Vermont and
New Jersey).

Criminal penalties are not really a factor in most State cleanup 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 Waste
Crimes," 17 Envtl. Law Rep. 10465 (1987) for a list of these crimes and sanctions.)
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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 V-2). A number of States
do, however, have express provisions for furnishing alternative water supplies or providing
reimbursement for the cost of water supplies in the event of contamination from a site.
Natural Resource Damages

A few 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. Table
V-12 shows the current status of natural resource damage enforcement work in the States.
A majority of States have had no activity in this area, but a substantial number have
undertaken assessments (NRDAs), recovered damages, or commenced development of
natural resource damage enforcement policies.
Other Enforcement Provisions

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.

A number of States foster or mandate cleanups through property transfer programs.
These programs are discussed in detail in Chapter IV.
Evaluating Enforceability of Programs

It is difficult to evaluate the enforcement component of any State program. Both
strong and weak programs can produce a significant number of "Voluntary" settlements and
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 detailed review is to ascertain whether each State has available to it sufficient tools
for enforcement that allow it to exert significant and credible leverage.

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State programs are weaker 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 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. State programs with sufficient
enforcement options, the ability to reach generators and transporters as well as site owners
and operators, a strict liability standard, and the ability to resort credibly to the State fund
appear to have the greatest potential for enforcement success.

Nothing definitive can be said in this study about the efficacy of "proportional"
liability schemes. Strict, joint and several liability makes the State's burden of proof much
simpler, however, and also provides a greater likelihood of a full recovery of costs. 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 for a release (particularly in the case of a generator or transporter) may be
quite difficult.

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 remedial action.
However, as the stringency of cleanup goals increases, the costs of mitigating the site risks
also increase. State superfund programs face challenges in effecting private cleanups that
meet increasingly stringent standards; when enforcement efforts fail or there are no RPs,
a greater proportion of the State's fund will be needed to meet stricter remediation goals.

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 cleanup standards.
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Table V-13 indicates a number of criteria that are used by States to determine
cleanup standards at hazardous waste sites. Only one State (West Virginia) did not report
specific policy guidelines for determining cleanup levels. Two states (Louisiana and Idaho)
reported that they used only EPA guidelines. Rhode Island uses only risk assessment; and
Oregon reported only one standard, cleanup to background. The remaining States use at
least two of the listed criteria.

Seven States report having promulgated specific hazardous waste remedial standards
(Alaska, District of Columbia, Michigan, Montana, Utah, Washington, and Wisconsin). Two
States (Oregon, Delaware) have such standards in draft form and three States are
developing them (Connecticut, Maryland, and New York). In addition, three States
(Vermont, New Jersey, Montana) are in the process of developing cleanup standards for
soil, and three States expect soil standards to be final in the near future (Oregon,
Minnesota, and Wisconsin).

Several States cited general statutory instructions that parallel CERCLA's original
guidance on cleanup standards, calling for cost-effective measures that protect public health
and welfare and the environment. Massachusetts' standards call for permanent solutions
whenever feasible, and include consideration of both technical and economic practicability.
Texas looks for the lowest cost alternative that is technically feasible and reliable and
effectively mitigates and minimizes damage to and provides adequate protection of public
health and safety or the environment.
Federal Standards

Thirty-seven States use EPA guidelines either as their sole source of cleanup
standards or in conjunction with other standards. In 1990, thirty States reported that they
used EPA guidelines. Standards found in RCRA and CERCLA were specifically cited as
relevant, and several States follow NCP procedures. In determining minimum standards for
surface and groundwater mediation, thirty-six States reference Maximum Containment
Levels (MCLs) set by the Safe Drinking Water Act for public water supplies. This is an
increase of eight States since 1990. No States use MCLs as their sole criterion.
Risk Standards and Assessments

Thirty-eight States, six more than 1990, either reference risk levels or conduct a risk
assessment in determining cleanup standards. Only one State (Rhode Island) uses a risk
assessment as its sole criterion. Where States mention numerical risk standards, they all fall
within the range of 10"4 to 10"7 for carcinogens.

Some States invoke risk standards only in the absence of applicable standards. In
Indiana, for example, cancer risk assessment is used where MCLs and applicable or relevant
and appropriate requirements (ARARs) are not established, or where multiple carcinogens
are present. Other States have risk standards that apply generally. In addition to a risk
standard for carcinogens, North Carolina prohibits any chemical intake exceeding the

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amount known to cause non-carcinogenic health effects. Kentucky requires that there be
no long term detrimental effect for non-carcinogens. North Dakota uses narrative rather
than numerical risk levels.

Other States use a combination of risk standards and other standards. Minnesota
applies a non-degradation policy to its cleaner sites. Michigan uses a three-tiered clean up
standard: Type A is background; Type B is risk based; Type C is low priority and less
stringent than Type B.

Site-by-site risk assessments are performed by at least twelve States to determine
cleanup levels. Like risk standards, risk assessments may be used either in the absence of
other standards, or as supplements to other standards. For example, Massachusetts
undertakes risk assessments only when an appropriate standard does not exist for a
particular situation. In contrast, Florida and Kentucky weigh the results of site-specific risk
assessments along with other applicable standards to determine cleanup levels at each site.

Water Quality Criteria

Forty-two States, an increase of fourteen States since 1990, reference existing surface
water or groundwater quality criteria in determining cleanup standards. Groundwater is
generally a growing concern and is of particular concern in a number of States. For
example, in New Mexico all cleanup actions must satisfy groundwater protection standards
of the Water Quality Control Commission. Iowa's regulations provide cleanup goals for
groundwater. Wyoming's cleanups are site specific with criteria based on protection of
groundwater.

Ambient Quality

Twenty four States, an increase of four States since 1990, reference ambient, or
background, water quality in determining cleanup standards. While some States have
background quality as their cleanup goal, 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 responsible parties. In Oregon, for
example, if cleanup to background is infeasible, the State will select a remedy that attains
the lowest concentration level that satisfies specified feasibility criteria, which include cost-
effectiveness. In other States, ambient quality is simply one factor that must be considered
before a cleanup standard is determined. Finally, some States require cleanup to
background for some, but not all, sites based upon preselected criteria such as groundwater
classification.
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                           STATE CLEANUP CRITERIA
      Hazardous Waste Remedial Standards                     7
      MCLs                                                   36
      Water Quality Criteria                                    42
      EPA Guidelines                                          37
      Background                                              24
      Risk Assessment                                         38
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 V-14 describes required, and routine or ad hoc public participation procedures in
each State.

      Forty-three States report some type of public participation procedure ~ an increase
of five States over 1990. Twenty-two States have specific public participation requirements
mandated by statute or regulation (some also have additional  procedures  established as
agency policy). Another twenty-one States seek community involvement strictly as a matter
of policy or in an ad hoc manner.  Four States (Hawaii, Kansas, Ohio and Virginia) are in
the process of formulating a policy for public participation, with Kansas also following NCP
guidelines on an ad hoc basis during this process. The remaining six States did not describe
the public participation component of their programs.

      Six States (Alaska, Colorado, Utah, Kansas, Indiana, Tennessee) reported that they
follow NCP public participation guidelines as a matter of policy.

      Public Notice Requirements

      Eighteen  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.
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                       PUBLIC NOTICE REQUIREMENTS

      Type of action                               Number of States

      Site investigation or listing                           6
      Proposed remedial plan                             14
      Administrative/enforcement orders                   2
      Program to identify releases                          1
      Proposed settlement agreement                       1
      Notice of violation                                   1
      Closure plans                                       1
       Public Comments

       Eighteen States solicit public comments on site listing or remedial plans; sixteen of
these States solicit comments pursuant to statutory requirements; and two of these States
do so as a matter of policy. Seven States have a designated comment period ranging from
30 to 60 days; the others did not report a specific time period.

       Pennsylvania requires the opportunity for public comment and at least one public
hearing on the administrative record and  requires the agency to respond to all significant
comments. In Montana the public participates in risk assessment design at select sites.
      Public meetings/Hearings

      Twenty-five States report that they have provisions for public meetings or hearings.
They are required by statute or regulation in eleven States.  In addition, two States (Oregon
and Wisconsin) require that a public meeting be held upon petition or request.  In two
States (Michigan and Missouri) only an annual meeting is required, either to update a site
list or to review the State program.

      While not required by statute or regulation, in another twelve States  meetings may
be held  at the discretion of program officials.   In Puerto Rico, public  meetings are
conducted for emergency sites where EPA is the lead agency.
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      Indiana holds two or three public meeting per site, followed by a mailing to affected
parties.  It often polls the public regarding possible remedies. Minnesota assigns a public
relations officer to each site and conducts a public meeting at the completion of the RI/FS
to explain the proposed plan. Louisiana implements a community relations program at
complex sites and holds  regular public meetings.   Before concluding any settlement
agreement Louisiana  holds public meetings and makes  copies of the draft agreements
available to the public.
      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, local government officials or agencies regarding
conditions and activities at hazardous waste sites.

      Community relations programs are a growing feature of State public participation
program activities.  Nine States (up from four in 1990) reported engaging in  extensive
community relations efforts with regard to hazardous waste sites.

      Upon petition of 10  or more local residents, or on its own initiative Massachusetts
develops a plan for community involvement regarding response actions.  The State may
provide technical assistance grants and must permit public site inspections by community
representatives.  Petitions for public involvement in the assessment and cleanup process
have been filed for 69 sites in Massachusetts.

      New York's  State Superfund Management Board, which oversees remedial programs,
includes environmental group and citizen representatives and its DEC has 10 full time staff
members assigned  to citizen participation.

      Washington has established regional citizens' advisory committees and provides public
participation grants to individuals and non-profit public interest groups.  Alaska  forms
citizen advisory panels for major cleanups. Colorado's local advisory groups meet with the
Department of Health bi-monthly.
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                                  CHAPTER IV

                STATE PROPERTY TRANSFER PROVISIONS
       Many States have  enacted laws linking the discovery  or  cleanup of hazardous
materials to private transactions affecting real property. As part of this year's update the
States were asked  to identify any "law, regulation,  or policy that  links the discovery,
identification, investigation, cleanup or disclosure of hazardous substance contamination to
transfers of real property, or to transfers of ownership or control of such property." In
response to this question eighteen states identified laws and regulations linking superfund
responsibilities to real property transactions.  Those laws generally  required the owner, or
the state, to disclose that the property was contaminated by hazardous materials either by
recording such notice with the deed, or by disclosing the  information at the time of the
property transaction. Thirty four States1 reported that they have no laws linking superfund
responsibilities to property transfers.

       While States were not asked specifically about liens, five States2 reported that they
have enacted "superlien" laws giving the State a first-priority lien against property subject
to a cleanup. Such superliens have priority over security interests filed prior to the state's
lien.
      Recording statutes

      Eight States3 reported that State laws require information disclosing that property
that has been or is being used for disposal or storage of hazardous substances be recorded
with the recorder of deeds.4  In three States5 the recording statute is triggered  by a
    1  Alabama, Alaska, Arizona, Colorado, Delaware, District of Columbia,  Florida,
Georgia, Hawaii,  Idaho,  Kansas, Kentucky,  Louisiana,  Maine, Maryland,  Montana,
Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Virginia,
Washington, Wisconsin and Wyoming.

    2  Arkansas, Connecticut, Massachusetts, New Hampshire, and New Jersey.

    3  Indiana,  Iowa, Louisiana, Michigan,  Minnesota, Missouri, New York, and North
Carolina.

    4  RCRA regulations  require the owner of property  used as a Hazardous Waste
Disposal Facility to record that information in the deed. 40 C.F.R. § 264.119(b)(l)(1989).

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proposed transfer of the property, and in five States6 recording is triggered by the presence
of hazardous materials or the listing of the property as a hazardous material site.

      Indiana's Responsible Property Transfer Law requires completion and submission of
a disclosure document prior to transfers of property that (1) contains one or more facilities
that are subject to reporting under section 312 of the Federal Emergency Planning and
Community  Right-to-Know Act, (SARA TITLE HI)  (2)  is the site of one or more
underground storage tanks for which notification is required under Subtitle I of RCRA, or
(3)  is listed on the Comprehensive Environmental Response, Compensation and Liability
Information  System (CERCLJS).  Property transfers include any conveyance of an interest
in property by deed; lease (whose term, if options were exercised, would be more than 40
years); assignment of more than 25 percent interest in a land trust; a mortgage or collateral
assignment of a beneficial interest in a land trust; or contract for the sale of property.  The
transfer document must be recorded in the office of the recorder for the county in which
the property is located and with the Indiana  Department of Environmental Management.

      In Iowa any transferor of real property is required to provide the recorder of deeds
with a statement regarding the existence of wells, disposal sites, underground storage tanks
and hazardous wastes on the property. The recorder is required to forward the statement
to the transferee and, if the statement reveals  that there is a well, disposal site, underground
storage tank or hazardous waste on the property, to the Department of Natural Resources.

      Louisiana requires recordation of notices that a site either (1)  has been used for
disposal of hazardous waste or for a solid waste landfill, and such wastes remain; or (2) is
an inactive or abandoned hazardous waste site or solid waste landfill.

      In Michigan, a seller who knows  that hazardous substances were released  in a
quantity requiring notice to EPA under CERCLA must provide written notice of the release
to any purchaser.   The written  notice is recorded with  the  register of deeds.   Upon
completion of cleanup the owner  records a certificate of completion of  an approved
remedial action.

      In Minnesota, before any transfer of ownership of  any property which the owner
knew or should have known was used as the  site of a hazardous waste disposal facility, or
was subject to extensive contamination by release of a hazardous substance, the owner must
record with the recorder of deeds an affidavit disclosing that the land was used to  dispose
of hazardous waste or was contaminated by  a release and that the use may be restricted.
The affidavit must contain a description of the property which discloses the identity,
   5  Indiana, Iowa and West Virginia.

   6  Louisiana, Michigan, Missouri, New York, and North Carolina.

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quantity, location, condition and circumstances of the disposal or contamination to the full
extent known or reasonably ascertainable.

      In Missouri, notice that a site has been placed on or removed from the state registry
is sent to the recorder of deeds and the information is filed so that any purchaser will be
given notice.

      New York requires  its county clerks to index in the land records by July 1, 1993,
present owners of inactive hazardous waste sites listed in the Registry of Inactive Hazardous
Waste Sites.

      In North Carolina property owners have 180 days from receiving a determination that
property is the site of an inactive hazardous substance or waste disposal site to prepare a
notice identifying the location and dimensions of the site and the type, location and quantity
of hazardous  materials disposed.  After the  Department of Environment, Health and
Natural Resources approves the notice, it is recorded with the recorder of deeds. When the
hazards have been eliminated from the site, the Department sends a statement that the
hazards have been eliminated and requests that the recorded notice be canceled.  That
statement and request are  then recorded and a marginal entry made noting the date of
cancellation.

      West Virginia requires the transferor by deed, lease or other instrument to disclose
in the deed, lease, or other instrument the fact that the property was used for the storage,
treatment or disposal of hazardous waste.  A grantee or lessee of real estate or substrata
who intends to  use the property  for the  purpose of storing, treating or disposing of
hazardous  waste must provide the grantor  or lessor written notice at the time of the
conveyance or within thirty days prior.  The notice must describe the proposed location of
the site to be used for the storage, treatment, or disposal of waste, the identity of the waste,
and the proposed method of storage, treatment or disposal.

      Disclosure statement at time of property transfer

      Ten  States7  require the seller to disclose  information  about the presence  of
hazardous  materials on the property or the use of the property for activities  involving
hazardous materials.

      In California any owner of a nonresidential real estate property interest who knows
or has reason to believe that a hazardous substance is located on or beneath the property,
is required to notify, in writing, each buyer of the condition of the property prior to the sale
of the property.  Lessees of residential and non residential property are required to give
    7  California, Connecticut, Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, New
Jersey, and West Virginia.

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notice to the property's owner of any release of a hazardous substance on or beneath the
property.  Failure to give notice can subject the  seller to liability for damages and civil
penalties.  Sellers of real property  or residential stock cooperatives improved with or
consisting of one  to four  dwelling units must disclose whether they are  aware of the
presence of any substances, materials, or products  which may be an environmental hazard.
Counties and cities may add disclosure requirements to the California disclosure form after
July 1, 1990.

      Connecticut requires anyone transferring ownership in a business  or other concern
that generates more than 100 kg of hazardous waste per month or which recycles, reclaims
reuses, stores, handles, treats, transports, or disposes of hazardous wastes generated by
another to certify  to the transferee and the DEP that wastes  on site are being properly
managed or that the waste will be cleaned up in accordance with a DEP approved schedule.
The requirements also apply to all dry cleaners, auto body repair shops, painting shops, and
furniture stripping facilities operating after May 1967.

      The Illinois Responsible Property Transfer  Act of 1988 requires that the transferor
provide the transferee and lender an environmental disclosure document for all transfers of
real property that  contains a  facility that either manufactures,  imports, or uses hazardous
chemicals on site in an amount above a statutory threshold, or contains an underground
storage tank  that requires registration with the State Fire Marshall.  The  Act does not
require that cleanup occur prior to transfer.  Parties to the transaction may void a transfer
based on the information contained in the disclosure document  if the transfer has not been
closed or finalized.

      Indiana's Responsible Property Transfer Law requires completion and submission of
a disclosure document prior to transfers of property meeting the conditions described under
"Recording Statutes" above. If the disclosure document reveals environmental defects in the
property that were previously unknown to the other party, the party is relieved of any
obligation to  accept the transfer of property or to  finance the transfer of the property.

      In Iowa a transferor of real property is required to provide the recorder of deeds with
a statement regarding the existence of wells, disposal sites, underground storage tanks and
hazardous wastes on property.  The recorder is required to forward the  statement to the
transferee and, if  the statement reveals that there is a well,  disposal site, underground
storage tank or hazardous waste on the property, to the Department of Natural Resources.

      In Michigan a seller who knows that hazardous substances were released in a quantity
requiring notice to EPA under CERCLA must provide written notice of the release to any
purchaser.

      In Minnesota, before any transfer of ownership of any property  which the owner
knew or should have known was used as the site of a hazardous waste disposal facility, or
was subject to extensive contamination by release of a hazardous substance the owner must


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record with the recorder of deeds an affidavit disclosing that the land was used to dispose
of hazardous waste or was contaminated by a release and that the use may be restricted.
The affidavit must contain a  description of the property which discloses the identity,
quantity, location, condition and circumstances of the disposal or contamination, to the full
extent known or reasonably ascertainable.  Minnesota has established a Property Transfer
Technical Assistance  Program  to assist people in determining whether real property has
been the site of a release or threatened release of a hazardous substance, pollutant or
contaminant.  The program may also assist in or supervise the response actions.

       Missouri  law provides  that no  person may sell, convey or transfer  title  to  an
abandoned  or uncontrolled hazardous waste disposal site which is  on the state registry
without disclosing to the buyer early in the negotiation process that the site is on the
registry, specifying applicable use restrictions and providing all registry information for the
site.  The seller must also notify the buyer that he may be assuming  liability for any
remedial action  at the site.  The seller must notify the Department of Natural Resources
of the transfer in ownership within 30 days after the transfer.

       New Jersey's 1983 Environmental Cleanup Responsibility Act (ECRA), requires the
transferor of industrial property to file with the New Jersey Department of Environmental
Protection and Energy (NJDEPE) 60 days prior  to transfer of property,  either (1)  a site
cleanup  plan or (2)  a negative declaration certifying  that the  property  is free  of
environmental impairment. If the declaration proves false, or any other noncompliance with
ECRA is found, the  transferee or NJDEPE may void the transfer, and the transferor
becomes strictly liable for cleanup costs and is subject to $25,000 per day in fines. Transfers
include (1) sale of stock, (2) sale of a controlling share of the assets, (3) conveyance of real
property by deed or mortgage foreclosure, (4) dissolution of corporate identity, (5) financial
reorganization, or (6) initiation of bankruptcy.  Prior to consummation of the transfer the
NJDEPE must approve the negative declaration, approve that cleanup has  been completed,
or approve an Administrative Consent Order providing for cleanup.

       West Virginia requires the transferor by  deed, lease or other instrument to disclose
in the document the fact that the property was used for the storage, treatment  or disposal
of hazardous waste. A grantee or lessee of real estate or substrata who intends to use the
property for the  purpose of storing, treating or disposing of hazardous waste must provide
the grantor or lessor written notice at the time of the conveyance or within  thirty days prior.
The notice must describe the proposed location of site to be used for the storage, treatment,
disposal of waste, the identity of the waste, and the proposed method of storage, treatment
or disposal.

      Duty to investigate prior to property transfer

      New  Jersey requires the seller  of industrial property to investigate and disclose
information about the presence of hazardous materials on the property or the use of the
property for activities involving hazardous material.  Connecticut requires the owner to


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certify that there has been no discharge or that any discharge has been or is being cleaned
up. California requires disclosure when an owner has reasonable cause to believe that a site
is contaminated and Minnesota requires disclosure when an owner knew or should have
known of contamination.

Duty to clean up prior to property transfer

Two States, Connecticut and New Jersey, require the seller to either clean up the site
prior to transfer of real property or to obtain an approved cleanup plan prior to transfer of
real property. Connecticut requires the owner to certify that there has been "no discharge,
spillage, uncontrolled loss, seepage or filtration of hazardous waste on-site, or that any such
discharge... has been cleaned up in accordance with procedures approved" by the State and
that "any hazardous waste which remains on-site is being managed in accordance" with the
law. If the owner is unable to submit a negative declaration, the transferee or any other
party to the transaction must certify that the property will be cleaned up to the extent
necessary to protect human health or the environment pursuant to an order, stipulated
judgment or consent agreement approved by the State.

New Jersey requires any industrial establishment closing, selling, or transferring
operations to submit either a negative declaration or a cleanup plan for the site prior to
completing the transaction. The State must approve the negative declaration or the cleanup
plan before the transaction may be completed and the owner or operator must supply
financial security sufficient to guarantee performance of any cleanup plan. In the event of
a false negative declaration, or completion of the transaction without prior state approval,
the transaction may be voided by the State or the transferee.

Computerized data base

Seven States reported that they maintain a database of known or listed sites which
is available to the public. Connecticut maintains a database from filings made by parties
to property transfers. Kansas reports that listing of a site on its database stops transfers of
listed property. Minnesota maintains a Property Transfer Project Identification List which
provides data on 170 sites for which a person has requested property transfer assistance and
a Property Transfer Notifiers List which contains information about sites where the state was
notified about contamination but no request for technical assistance has been made.
Montana is in the process of compiling a data base of the locations of all hazardous waste
sites, which is expected to be completed in the winter of 1992. In the interim, its list and
map of hazardous waste sites are available to the public. New Jersey maintains a database
containing site information on sites that were the subject of an ECRA application. New
York maintains a Registry of Inactive Hazardous Waste Sites. Washington maintains a
database of suspected contaminated sites and all UST facilities regulated under state law,
which is commonly used by consultants conducting site assessments.
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               PROPERTY TRANSFER PROVISIONS
No Law                                        34 States
Super Lien                                      5 States
Record on Deed                                  8 States
Disclose before transfer                           10 States
Examine before transfer                           2 States
Clean up before transfer                           2 States
Data Base                                       7 States
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                       CHAPTER V
                    SO-STATE TABLES
                        TABLE V-l

OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
                        SUMMARY
         29 States have Fund and enforcement capabilities with active cleanup
         programs.

         12  States  have  Fund and enforcement capabilities with limited
         activities.

         11 States have partial programs, lack Funds applicable to non-NPL
         cleanups, or lack enforcement authorities.
             STATE PROGRAM DEVELOPMENTS

Full Fund and Enforcement/
Active Program
Full Fund and Enforcement/
Limited Activities
Partial Programs
1989
25
14
11
1990
27
14
9
1991
29
12
11
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TABLE V-l
OVERVIEW OF STATE CLEANUP ACTIVITIES AND CAPABILITIES
REGION I
Connecticut
Maine
Massachusetts
New Hampshire
Rhode Island
Vermont
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities contained in two statutes - fund for cleanup and oversight limited.
REGION II
New Jersey
New York
Puerto Rico
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Limited fund and enforcement authority.
REGION III
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
Fund and enforcement capabilities - program under development following enactment of cleanup statute.
Enforcement capabilities - fund limited to underground storage tank cleanup.
Fund and enforcement capabilities - first allocations from fund recently approved.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - fund is 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 and enforcement capabilities - limited fund.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capability - limited fund and enforcement capabilities under Hazardous Waste
Management Act.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - must use enforcement provisions in other statutes or regulations, however.
Fund and enforcement capabilities - two funds available to program, which is concentrating on voluntary
compliance.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
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TABLE V-l (Cont'd)
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 and enforcement capabilities - active cleanup and oversight program.
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 - active cleanup and oversight program.
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 - limited enforcement authority.
REGION VIII
Colorado
Montana
North Dakota
South Dakota
Utah
Wyoming
No fund for State cleanup - enforcement under other statutes or Federal authority.
Enforcement capability and limited fund - fund and program activities limited to date.
Limited fund and program activity - some enforcement authority in a separate statute.
Fund and enforcement capabilities - program activity and fund are limited.
Fund and enforcement capabilities - program activity is limited.
Limited enforcement authority and fund - limited program activity.
REGION IX
Arizona
California
Hawaii

Nevada
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement capabilities - active cleanup and oversight program.
Fund and enforcement authority - program activity limited. In the process of developing
administrative rules.
Limited fund and enforcement authority - program activity limited. In the process of developing
administrative rules.
53