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
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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
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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.
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OSWER ft 9831.5
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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.
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