United State*
Environmental Protection
Agency
Off ic« of
Solid W»«t* and
Emergency Respon*
&EPA
DIRECTIVE NUMBER: 9832.2
TITLE: COORDINATION OF EPA AND STATE ACTIONS
IN COST RECOVERY
APPROVAL DATE: AUGUST 29, 1983
EFFECTIVE DATE: AUGUST 29, 1983
ORIGINATING OFFICE: OWPE
® FINAL
D DRAFT
STATUS:
s
REFERENCE (other documents):
OSWER OSWER OSWER
E DIRECTIVE DIRECTIVE Dl
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6 EPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Reauest
Interim Directive Number
9832.2
Originator Information
Name of Contact Person
Anthony Diecidue
Lead Office r— j
D OERR 0
D OSW Q
Title
Coordination of
OUST
OWPE
Mail Code
WH-527
Approved
Telephone Number
382-4841
for Review
Signature of Office Direotor . f
EPA and State Actions in Cost Recoverv
Date ,- ^
\'%&f $ r°
iummary of Directive
Outlines considerations for pronoting Fed/State relations
in their respective cost recovery efforts. Also provides
Guidance on preparing conditions to cooperative agreements.
Key Words: coordination, cost recovery, promoting, efforts
cooperative, State, guidance
ype of Directive (Manual. Policy Directive. Announcement, etc.)
Guidance
Status
Q Draft
03 Final
129 New
LJ Revision
Does this Directive Supersede Previous Directives)? | | Yes
"Yes" to Either Question. What Directive (number, title)
I [ No Does It Supplement Previous Directive^)? I .) Yes
eview Plan
O AA-OSWER
D OERR
D OSW
D OUST
D OWPE
LJ Regions
Q OECM
D OGC
D OPPE
Other (Specify)
his Request Meets OSWER Directives System Format
ignature of
Directives Officer
ignature of OSWER Directives Officer
Date
Date
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vor, = 9332.2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. OC 20460
29 1983
'MEMORANDUM
SUBJECT: Coordination of EPA and State Actions in CERCLA
Cost Recovery Negotiations and Litigation
FROM: Courtney Price ^-
Special Counsel
Lee Thomas
Assistant Administrator
Solid Waste and Emergency Response
TO: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Director, Office of Intergovernmental Liaison
The clean-up of hazardous waste disposal sites under the-1 -
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) involves payment of monies from the Hazardous Substance
Response Fund (the Fund) created by Section 211 of CERCLA to
individual States or to contractors to finance clean-up activities.
In many cases, the State in which the site is located will also
contribute its own funds to the site clean-up !_/. EPA and the State
may thereafter negotiate with or take judicial action for recovery
of the.amounts expended by them against the party or parties who
I/ Under CERCLA §104(c)(3), the State must pay or assure payment
of 10 percent of the cost of remedial action and operations and
maintenance at a site and at least 50 per cent of the cost of
all response actions at a facility which was owned by th.e State
or a subdivision at the time of disposal of hazardous substances.
Current Agency policy allows CERCLA funding of remedial
investigation, feasibility study, and remedial design at privately
owned sites without a State cost-share. Accordingly, any cost-
share previously paid by the State (allowable State services,
statutory credit or cash) for remedial investigations, feasibility
studies, and remedial design at privately owned sites will he
applied toward the State's share of the cost for remedial construction
at the site, see May 13, 1983 Memorandum from Lee M. Thomas.
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are legally responsible 2/. In those cases, the question arises
whether the separate negotiations or judicial actions of EPA or
the State to recover their respective funds might, in some way,
prejudice the other's right to recoup its monies, and if so,
what actions might be taken to avoid such prejudicial effect.
It may initially appear unreasonable to conceive that either
EPA or a State could take action which would interfere with the
other's right to recover monies expended for site clean-up.
However, the following points should be considered:
0 State as Agent - EPA will frequently transfer its share
of clean-up funds to the State which will, in turn, spend .
it on the site under the cooperative, agreement with 'EPA.
The cooperative agreement contains numerous protocols,
procedures, and other standards with which the State'must
comply to assure the quality of the site investigation and
clean-up. Because of EPA's control over these matters,
adverse parties may argue that the State is EPA's agent or
representative for the expenditure of the funds. This
misunderstanding might be asserted as a defense to recovery
of remedial costs by 'a potentially responsible party.
Further guidance on cost recovery procedure^ and responsible
parties is contained in a forthcoming policy entitled, "Cost
Recovery Actions under CERCLA."
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• Collateral Estoppel - An adverse judgment by a court in an
action by either EPA or a State on the issue of recovery of
funds expended on the site might be held to collaterally
estop the other governmental agency from successfully bringing
a subsequent action against that same party V-
0 Insolvency of Responsible Party(s) - A settlement or
judgment by EPA or the State might exhaust the available
resources of the responsible party(s), leaving the other
governmental agency without possibility of a recovery.
Regardless of the merits of arguments which may be made on
the foregoing considerations, in the interest of promoting
Federal-State relations, there are certain rights and obligations
which should be clearly defined at the outset of the relationship.
The Regions, in cooperation with OERR, have recognized the benefits
of identifying tnese interests by reflecting them in the cooperative
agreements. Accordingly, this memorandum does not require the
Regions to adopt any new procedures or change any existing coopera-
tive agreements. Instead this document .presents the rationale
for drafting cooperative agreements in the manner prescribed by
OERR.
3/ See United States v. I.T.T. Rayonier, Inc., 627 F.2d 996,
(9th Cir., 1980).
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THE COOPERATIVE AGREEMENT
1. Negation of Agency in Cooperative Agreement
The cooperative agreement should negate the principle that
the State is an agent for EPA. This is important for both govern-
mental agencies for a number of reasons. In the cooperative
agreement, EPA will necessarily require that the State observe
certain standards, procedures and protocols, such as in the
taking of samples, their chain-of-custody, analysis protocols,
and perhaps accounting procedures. The need to specify such
procedures could be argued to constitute a right to control the
actions of the State, an indicia of an agency relationship.
Neither EPA nor the State should wish to encourage such an
argument because of the potential exposure to tort liability
as well as the possibility 'of complicating a cost-recovery effort.
Therefore, the imputation of an agency relationship between EPA
and the State should be negated by appropriate language in the
cooperative agreement. Suggested language for such a provision
appears in the Appendix to this memorandum.
2. Requirement for Notice of Settlement or Action
The cooperative agreement between EPA and the State should
contain a provision that neither will initiate a cost recovery
proceeding or enter into a settlement with the responsible party
except after ample written notice in advance of the execution of
-r-j- '. ,
3, settlement agreement or the filing of a suit. The provision
prevents rushing by EPA and the State to obtain a judgment against
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or settlement with the responsible party, thereby gaining
a position of preference with respect to the assets of the
responsible party.
Inclusion of such a provision in the cooperative agreement
is fair to both EPA and the State, in that neither may gain an
unexpected advantage to the assets of the responsible party by
separate negotiations of which the other may be unaware.
Such a provision also provides a means whereby each party to
the cooperative agreement may take separate independent action
to protect its interests, after having given the necessary notice,
if there are reasons to not engage in joint EPA^State negotiations
or file suits in coordination with each other against the
responsible parties. Suggested language for such a provision
appears in the Appendix to this memorandum, and provides for
'written notice not less than 30 days in advance of settlement or
'initiation of a cost recovery action.
3. Requirement for Cooperation and Coordination of
Cost Recovery Efforts .
The cooperative agreement should also provide that EPA and
the State will cooperate with each other in efforts to recover
their respective shares of the costs of response activities at the
facility, and will coordinate their respective activities and
resources in such efforts, including the filing and coordination
of litigation for the recovery of costs and the use of evidence
•';* i
and witnesses in such suits. This provision is aesirable because •
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cost recovery suits will involve considerable data, documents
and witnesses from both EPA, the State and their contractors,
and close coordination between EPA and the State will be very
important to the efficient and effective resolution of those
suits. Model language for this provision also appears in the
Appendix.
4. Requirement That Judicial Action Be Taken
in U.S. District Court
The cooperative agreement should also provide that any suit
filed by either party to the agreement.against any third party for
recovery of response costs to which it may be entitled, shall be
brought in the U»So District Court for the judicial district in
which the release or damages occurred, or in which the defendant
resides, may be found, or has his 'principal office' (§113Cb)).
The purpose of this provision is to avoid fragmenting the efforts
of EPA and the State between Federal court (in which EPA would
bring a suit), and State court -(in which the State could bring a
cost recovery suit under any applicable State law. See the
discussion of this point in the section entitled "Pending Cases",
infra). Model language for this provision also appears in the
Appendix.
NON-JUDICIAL SETTLEMENT
In the absence of 'an agency relationship between EPA and the
i
State, there is little possibility that the State could enter into
a separate agreement with the responsible party (as distinguished
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from a Decree or Judgment) which could affect EPA's rights against
the responsible party, other than to drain off that party's
assets which might be available for payment of a cos,t-recovery
claim. In the case of a responsible party with substantial assets,
a separate settlement by the State or EPA may not present a
serious problem to the other party. However, assuming EPA becomes
aware of an impending settlement between the State and the
responsible party(s) 4/, the Agency should, before the settlement
is finalized, determine the probable extent of the responsible
party's financial ability to satisfy EPA's claim in addition to
payment of the settlement with the State 5/.
In most cases, the responsible party will probably wish
to simultaneously settle, its liability with both the State and EPA.
Collective negotiation and settlement procedures involving the
4/ EPA should become aware of any impending settlement by the
State with a responsible party assuming there is a provision in
the cooperative agreement which requires the State to notify
EPA in writing thirty days in advance of any proposed settlement,
and the State complies with that agreement.
£/ A determination of the financial ability of a potentially
responsible party can be made by the Financial Management Division
of the Agency, or by use of a Financial Assessment System which
has been developed by the Economic Analysis Division of the
Office of Policy Analysis of EPA. This system will provide case-
by-case, inexpensive and defensible estimates of ability-to-pay
which will be useful for settlement consideration. This system
requires a minimum of financial data which will usually be available
from a Dun and Bradstreet report, a Moody's listing, or an audited
financial statement. When that information is not available, the
system will enable enforcement personnel to focus data requests
*to that information necessary to perform a minimum*financial assess-
ment. Any questions about this system and its uses should be
directed to Kathy Summerlee, FTS 382-3077, or David Erickson,
FTS 382-2764'.
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.State, EPA, and the responsible parties should be encouraged
to avoid misunderstandings 'and to resolve all issues at the
same time. However, there will undoubtedly be circumstances
under which the responsible party may believe that it would
be advantageous to settle with one claimant (either EPA or
the State) and not the other. It is those cases where the
assets of the potentially responsible party would be sub-
stantially depleted by the. settlement which could present
significant problems for each claimant.
It should be recognized at the outset that, absent the
proposed notice and coordination agreements discussed above,
there is nothing to prevent the State or EPA from settling
its claim in the absence and without the concurrence cf the
other. Where such a settlement would place ei-ther the State
or EPA in a more advantageous position with regard to the.
'assets of the responsible party, problems could arise which
could affect intergovernmental relations. In those cases,
the following options are available to EPA:
1. Should EPA determine that the State has independently
ente'red into settlement negotiations with the responsible
party, EPA should contact the appropriate State agency in an
effort to establish a joint settlement effort and strategy.
Simultaneously, EPA should notify the responsible party by
letter (if that has not already been done as part of the Agency's
•
cost recovery procedure), advising it of the Agency's claim, and
that no other person or entity is authorized to negotiate for or
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otherwise represent the Agency in respect to that claim.
At the same time, the Agency should initiate an investigation
into the financial resources of the responsible party to
determine whether there will be sufficient assets remaining
after the proposed State settlement to satisfy EPA's claim.
That investigation can be carried out in the manner described
in footnote 5.
2. If it is determined that the assets of the responsible
party will likely be depleted or substantially impaired by a
separate settlement with the State without provision being
made for EPA's claim, and if efforts to establish a joint
settlement effort with the State are not successful, then
• consideration should be given to EPA's applying to the appro-
priate U.-S. District Court for the appointment of a receiver
to operate or manage the assets of the responsible party for
the benefit of all creditors of that party. This action, if
taken in a timely manner, would prevent the responsible
party from distributing its assets in a preferential manner.
However, the decision to att -mpt to forestall a State
settlement with a responsible party should be made only after
serious consideration of all factors involved, including:
0 the amount of EPA's claim which might be prejudiced;
0 the past relations between EPA and the State agency
involved in the negotiations;
*° the circumstances under which ..fe-he State and t,he
responsible party entered into the negotiations
without the presence of EPA;
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0 the existence of any agreement between EPA and
the State prohibiting such negotiations;
0 and any other factors which might bear upon the
decision.
While this action should be taken only as a last resort, -
the Agency's responsibility to preserve and restore the Fund may
require such action. As in other such actions, a decision to
seek the appointment of a receiver for the assets of a responsible
party will require the concurrence of the Special Counsel to the
Administrator for Enforcement.
PENDING CASES
There are a number of cases in which States have already
initiated a suit against responsible parties, and-EPA has
contributed or intends to contribute a portion of the clean-up
.costs. In such cases, what is the proper forum and the best
method in which to proceed?
In the absence of an agreement with EPA to the contrary,
a State may, of course, proceed with an action in State court for
cost recovery claims based upon any applicable State law 6/.
CERCLA §107(i) provides: "Nothing in this paragraph shall
affect or modify in any way the obligations or liability of any
person under any provision of State or Federal law, including
common law, for damages, injury or loss resulting from a release
of any hazardous substance or for removal or remedial action or
the costs of removal or remedial action of such hazardous
substance."
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States are also authorized to make claims under CERCLA for
the cost of response activities which they incurred at a site.
Section 107(a) of CERCLA, for example, provides for the liability
of past and present owners and operators of a facility, generators,
transporters and others for "all costs of removal or remedial
action incurred by the United States or a State not inconsistent
with the National Contingency Plan." Many other sections of
CERCLA refer to the right of the States to recover for their own
costs.
However, §113(b) of CERCLA provides:
"... the United States district courts shall have exclusive-
original jurisdiction over ail controversies arising under
.this Act, without regard to the citizenship of the parties
•or the amount in controversy. Venue shall lie in any dis.trict
in which 'the release or carnages occurred, or in which th«?
defendant resides, may "be found, or-has his principal office."
We interpret this provision to mean that any claim made
by EPA, the State or any other person.for recovery of response
costs, which is based upon the provisions of CERCLA, must be
brought in the appropriate U.S. District Court, and may not
be asserted on behalf .of EPA by a State in a State court
action !_/. Obviously, any claim asserted by EPA will be based
upon CERCLA and will be in U.S. District Court. Likewise, if
7/ In addition to the restriction of §113(b), there are additional
Feasons why the State could not attempt collection of the Federal
share of response costs. Under CERCLA §112(c)(3) and 28 USC S516,
the U.S. Attorney General is requiced to represent EPA in these
proceedings. This may not be delegated to the States, and therefore
it is not possible to authorize the States to attempt collection
of the Federal share of response costs in a State court proceeding,
even should it be otherwise appropriate.
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the State's claim against a third person for its share of the
costs relies in whole or in part upon CERCLA, then it too must
be brought in U.S. District Court. A State may, therefore,
attempt recovery of its share of response costs in State
court only under some law or theory other than CERCLA.
We also believe it highly important that EPA and the State
attempt to coordinate their respective claims because:
* such actions will involve a substantial amount of technical
data, documents and witnesses from both EPA and the State,
and each party could derive the benefit of the other's
evidence and witnesses;
0 coordination would avoid .the necessity of maintaining two
separate proceedings which would duplicate much of the same
effort and resources; and
0 coordination of the claims would avoid the issue of collateral
"estoppel discussed earlier in this memorandum.
We believe the States will be receptive to joint or cooperative
cost recovery actions with EPA for these rea.sons, and for the
additional reason that the legal authority for the States to
recover is probably much clearer under CERCLA than it may be
under the laws of most States.
The following options, or some variance thereof, should
therefore be followed in those cases where EPA provides CERCLA
i
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funds under a cooperative agreement to a State which has a suit
pending in State court against t-he responsible party:
Option I; EPA should require, as a condition of'payment of
the CERCLA funds to the State, that the State will, within a
certain period of time (i.e., 30 days) after receipt of the
funds, dismiss without prejudice all claims for recovery or
reimbursement of any response costs at the site £/ from any
action then pending in State court. The provisions recommended
earlier in this Memorandum for inclusion in all cooperative
agreements should also be used _9/.
It is not necessary to require that a single suit for cost
recovery be filed jointly by EPA and the State. It may.be a
more simple' procedure, and avoid potential logistical problems, •
for -each party to file its own-suit separately,•and then request
8/ Note that this does not necessarily require a complete
dismissal of the pending State court action. This recognizes
that there may be other claims of the State involved in the
case, with which the State may wish to continue in the State
court proceedings, and that the existence of counterclaims by
the defendant on other issues may prevent the State from
effecting a complete dismissal of the case. The important
poirtt is to eliminate all cost recovery claims from the
State court proceedings. Of course, if those are the only
claims involved in the State case, a complete dismissal of
the case would be the desired result.
£/ The Attorney General of the State should agree to or
concur in this provision of the cooperative agreement, since
it affects pending litigation in which the Attorney General
is representing the State. Such .agreement or concurrence may
be limited to the particular provision requiring dismissal of
the case, and may be evidenced by an endorsement to the
cooperative agreement or by separate letter signed by the
Attorney General or his representative.
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the U.S* District Court before which they are pending to consoli-
date proceedings on the suits pursuant to Rule 42 of the Federal
Rules of Civil Procedure.
Note also that this option does not affirmatively require
that the State refile its claim in Federal court, but only
that if the claim is refiled, it will be in Federal court. The
requirement for cooperation and coordination between EPA and
the State will also apply to and encourage joint negotiations
with the responsible parties before filing of a suit in Federal
'court, as well as to subsequent litigation in-Federal court.
Option II; It is conceivable that a State may wish to continue
to.pursue its cost recovery claim in State court, or may not
wish to coordinate its efforts with EPA. In such event, EPA
should not, even if it could, attempt to require it to do other-
wise. However, because collateral estoppel could be raised
against EPA by the responsible party(s) in event of an unfavorable
result in State court proceedings, EPA should, as a condition
of payment of the CERCLA funds, require that the State,
within a specified time, dismiss without prejudice or omit
from any action then pending or which it may subsequently
file in State court any claim for recovery of response costs
which in the opinion of EPA, are or may be based upon CERCLA,
or any law, regulation or authority other than that which
may exist under the laws of that State 10/. «
10/ See comment at footnote 9
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EPA should strongly urce the States with which it enters
into cooperate agreements to accept Option I, since it will
result in much greater effectiveness and cost-efficiency in
recovery actions. Option II should be adopted only after
all efforts to persuade the State have failed.
Note on Purpose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of attorneys and other employees of the U.S.
Environmental Protection Agency. They are not intended to nor
do-they constitut-3 rule-making by the Agency, and may not be
relied upon to create a right or benefit, substantive or pro-
cedural, enforceable at -law or in equity, .by any person. The
Agency -may -ake any action at varience with the policies or
procedures contained in this memorandum, or which are not in
compliance with internal office procedures that may be adopted
pursuant t these materials.
We recognize that this memorandum contains subject
matter which relates to sensitive areas of the Federal-State
relationship. Nothing contained herein is intended to imply
bad faith or improper motive on the part of any State or
agency thereof, and no such interpretation or construction of
any provision herein should be made. This memorandum attempts to
recognize that in the normal course of EPA-State relations,
.-«• . • ,
occasions arise in which the interests of EPA and the State may
not be identical, and it is our intent to anticipate and
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prepare for such occasions so that they can be approached in
a rational, planned manner to minimize further potential
i-paet on the relationship.
If you have any questions or problems concerning any matter
contained herein, please call Russell B. Selman at FTS 426-7503,,
Attachment
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APPENDIX
Under CERCLA, both EPA and affected States can institute
enforcement actions against and/or negotiations with parties
responsible for priority waste sites. When'this occurs, a
settlement or legal action by either party could potentially
impede or even negate *:he claims of the other for rece"^ry ~*
funds expended at the site. Obligations, rights, and pro-
cedures for litigation must be defined as early as possible
in the working relationship between EPA and the State to avoid
this eventuality. Therefore, provisions concerning cost recovery
should be in the Cooperative Agreement application. Specific
provisions that address different enforcement conditions are
presented below. These provisions should be reviewed, discussed
with the RSPO, and included in the application, as appropriate.
Please refer to the text of the Memorandum for guidance on
the use of these provisions.
1. Disclaimer of Agency Relationship
Nothing contained in this Agreement shall be construed to
create, either expressly or by implicaation, the relationship
of agency between EPA and the State. Any standards, procedures
or protocols prescribed in this Agreement to be followed by
the State during the performance of its obligations under this
Agreement are for.assurance of the quality of the final product
of"the actions contemplated by this Agreement, and do not
constitute a right to control the actions of the State. EPA
(including its employees and contractors) is not authorized to
represent or act on behalf of the State in any matter relating
to the subject matter of this Agreement, and the State (including
its employees and contractors) is not authorized to represent or
act on behalf of EPA in any matter related to the subject matter
of this Agreement. Neither EPA nor the State shall be liable
for the contracts, acts, errors or omissions of the agents,
employees or contractors of the other party entered into,
committed or performed with respect to or in the performance
of this Agreement.
2. Notice of Intent to Settle or Initiate Proceedings
EPA and the State agree that, with respect to the claims
that each may be entitled to assert against any third person
(herein referred to as the "responsible party", whether one or
more) for reimbursement of any services, materials, monies or
other thing of value expended by EPA or 'the State for response
(activity at site described herein, neither ERA no» the State
will enter into a settlement with or initiate a judicial or
administrative proceeding against a responsible party for the
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Appendix
ii
recovery of such sums except after having given notice in
writing to the other party to this Agreement not less than
thirty (30) days in advance of the date of the proposed
settlement or commencement of the proposed judicial or
administrative proceedings. Neither party to this Agreement
shall attempt to negotiate for nor collect reimbursement of
any response costs on behalf of the other party, and
authority to do so is hereby expressly negated and denied.
3. Cooperation and Coordination in Cost Recovery' Efforts
EPA and the State agree that they will cooperate and
coordinate in efforts to recover their respective costs of
response actions taken at the site described herein, including
the negotiation of settlement and the filing and management
of any judicial actions against potential third parties. This
shall include coordination in the use of evidence and witnesses
available to each in the preparation and presentation of any
cost recovery action, excepting any documents or information
which may be confidential under the provisions of any applicable
State or Federal law or regulation.
4. Judicial Action in U.S. District Court
EPA and the State agree 'that judicial action taken by
either party 'against a potentially responsible party pursuant
to CERCLA for recovery of any sums expended in response
actions at the site described herein shall be 'filed in the
United States District Court for the judicial district in
which the site described in this Agreement is located, or in
such other judicial district of the United States District
Courts as may be authorized by section 113 of CERCLA, and
agreed to in writing by the parties of this Agreement.
5. Litigation Under CERCLA Sections 106 and 107
The award of this Agreement does not constitute a waiver
of JEPA's right to bring an action against any person or persons
for liability under sections 106 or 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
or any other statutory provision or -common law.
6. Sharing Recovered Funds with EPA
Any' recovery achieved by thetyState pursuant? to settlement,
judgment or consent decree or any action against any of the
responsible parties will be shared with EPA in proportion to
contribution to the site cleanup under CERCLA.
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7.
APPENDIX
iii
Dismissal By State of Pending Cost Recovery Action - Option I
The State does hereby agree that if will, not later than
thirty (30) days after the date of this Agreement,"cause to be
dismissed, without prejudice to any subsequent refiling, any
and all claims of the State (or any Agency thereof) in the
case of "(State or Agency) v. (defendant), now pending in the
(Circuit, Chancery, etc. ) Court of ,
Docket No. , for recovery of any services, materi-als,
monies or other thing of value expended or to be expended on
the site described in this Agreement. Any subsequent refiling
of said claims by the State or any agency thereof will be in
accordance with the provisions of this Agreement.
(See comment at footnote 9 of Memorandum regarding State
Attorney General concurrence with this provision.)
8. Dismissal By State of Pending Cost Recovery Action - Option II
The State does hereby agree that it will, not later than
thirty (30) days after the date of this Agreement, cause to be .
dismissed, without prejudice to any subsequent refiling, any and
all claims of the State (or any Agency thereof) in the case of
"(State or Agency) v. (defendant), now pending in the Docket No;
, for recovery of any services, materials, monies or
other thing of value expended or to be expended on the site
described in'this Agreement which are based or rely, in whole
or. in part, upon the provisions of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980. .Any subsequent
refiling of said claims by the State will be in accordance with
the provisions of this Agreement.
(See comment at footnote 9 of Memorandum regarding State
Attorney General concurrence with this provision.)
9. Emergency Response Action
It may in the course of conducting the remedial activities
covered by the Cooperative Agreement, become necessary to
initiate emergency response actions at the site. The Cooperative
Agreement application should contain a provision acknowledging
this eventuality and dealing with the effect any such emergency
actions will have upon the remedial project. The provision
below, or its equivalent, may be used in the application for this
purpose:
Any emergency response activities conducted
pursuant to the National Contingency Plan,
40 CFR section 300.65, shall not be restricted
by the terms of this Agreement. EPA and the
State' may jointly suspend or modify the remedial
activities in the SOW of this Agreement during
and subsequent to necessary emergency response
actions.
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