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

                               -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.

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