Unittd State* Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9831.5 TITLE: AUTHORITY TO USE CERCLA TO PROVIDE ENFORCEMENT FUNDING ASSISTANCE TO STATES APPROVAL DATE: FEBRUARY 12, 1986 EFFECTIVE DATE: FEBRUARY 12, 1986 ORIGINATING OFFICE: QWPE SPINAL D DRAFT STATUS: REFERENCE (other documents): OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- dEPA United States Environmental Protection Agency Washington, DC 20460 OSWER Directive Initiation Request [ Interim Directiv 9831.5 Originator Information Name of Contact Person Anthony Diecidue Mail Code WH-527 Telephone* Number Lead Office D OERR O OSW OUST OWPE AA-OSWER Approved for Review Oir Date Title Authority to Use CEFCLA to Provide Enforcement Funding Assistance to States Summary of Directive Transmitts 2/13/86 OGC opinion to EPA regional offices and explains status of guidance for funding State negotiation and litigation activities at NPL sites. Key Words: state negotiation, authority, opinion, status, guidance, litigation, NPL Type of Directive (Manual. Policy Directive. Announcement, etc.) Policy Status Draft Final New LJ Revision Does this Directive Supersede Previous Directives)' [ | Yes [Al No Does It Supplement Previous Oirective(si> | | Yes If "Yes" to Either Question. What Directive (number, titlel Review Plan O AA-OSWER D OERR D OSW D OUST D OWPE LJ Regions D OECM D OGC D OPPE Other (SpecifYi This Request Meets OSWER Directives System Format Signature of Lead Office Directive^ Officer . G. A ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ornct or GCNCRAL COUNttC FEE "I 2 '986 MEMORANDUM SUBJECT: Authority to Use CERCLA to Provide Enforcement Funding Assistance to States FROM: Lee A. DeHihns, Associate General Counsel Grants, Contracts and General Law Division TO: Gene A Lucero, Director Office of Waste Programs Enforcement In our earlier memorandum to you on the above referenced subject ^J , we advised you that certain costs for activities authorized by section 104 (b) of CERCLA that supported state enforcement efforts were payable from the Trust Fund. It was our view that section 104(b) authorizes remedial investigations and feasibility studies (RI/FS) whether such RI/FS is for the purpose of a Fund-financed response or an enforcement action. Therefore, state costs to conduct an RI/FS for an enforcement action or to review an RI/FS of a potentially responsible party are allowable. However, we also advised you that other state activities such as efforts to comp- 1 private party cleanups, to monitor the actual cleanups, or to report to the public on private responses, ("state enforcement activities") were not within the scope of section 104(b). Since the Department of Justice has successfully argued in cost recovery actions that section 104 (b) includes attorneys fees/ United States v. Northeastern Pharmaceutical and Chemical Company, Inc. t 579 F.Supp. 823, 851 (W.D.Mo. 1984), United States v. CauTf- man, No. 83-6318 Kn (Bx) (C.D.Cal. Sept. 26, 1984), United States v. South Carolina Recycling and Disposal, Inc., (Civil Action No. 80-1274-6) (D.S.C. Bench ruling August 28, 1984), we have reconsidered these views. We now conclude that section 104 (b) can reasonably be read to include such state enforcement activities. ^/ Memorandum from Lee DeHihns to Gene Lucero, entitled "Authority ~" To Use CERCLA To Provide Enforcement Funding Assistance to States", dated July 20, 1984. ------- OSWER ft 9831.5 -2- Discussion Section lll(a) of CERCLA authorizes payment.from the Trust Fund ofs (1) governmental response costs incurred pursuant to section 104; (2) response claims; (3) natural response damage claims; (4) costs specified in section lll(c); and necessary administrative costs. Under section 104(dHI), EPA may award assistance to states (and political subdivisions) to carry out "any or all of the actions" authorized in section 104. Section 104(d)(l) is the exclusive authority in CERCLA for such assistance. Therefore, only those state costs that are response costs within the meaning of section 104 may be payable from the Trust Fund under an assis- tance agreement. The issue is whether state enforcement activities are included in section 104. Section 104(b) authorizes the President to: undertake such investigations, monitoring, survey, testing, and other information gather- ing as he may deem necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances . . . involved, and the extent of danger .... In addition, 'the President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this Act. In our earlier opinion, we had viewed studies, investigations and information collection as the heart of section 104(b). We had read the second sentence to authorize the President to undertake planning, studies and investigations needed for response actions, cost recovery and enforcement. We thus viewed section 104(b) as authorizing a wide-range of planning and investigating activities preparatory to actual response or enforcement. Under this inter- pretation, EPA could provide funding for states to conduct RI/FS's for either Fund-financed response or an enforcement action, and to review an RI/FS of a potentially responsible party. However, we did not consider section 104(b) as authorizing activities beyond planning and investigation. We advised- that cooperative agree- ments could not include administrative or judicial actions to compel private party response (e.g.,. attorneys fees, court costs), oversight of private party response, or other enforcement actions. We viewed section lll(c)(3) as authority for a federal enforcement program including such costs. ------- |