United States
Environmental Protection
Agency
Office of Solid Waste
and Emergency Response
Publication No.
9375.5-01/FS
Fall 1989
&EPA
State and Local
Involvement In The
Superfund Program
Office of Emergency and Remedial Response
Hazardous Site Control Division (OS-220)
Quick Reference Fact Sheet
INTRODUCTION
When Congress first enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980, it
required States to be active partners in conducting Superfund response actions. Under CERCLA, States with the technical and
management capability to carry out a response action may be authorized to lead cleanup efforts at a site. Local communities and certain
local government agencies (such as fire departments and public health agencies) also participate in Superfund cleanup operations.
In 1986, Congress amended CERCLA and passed the Superfund Amendments and Reauthorization Act of 1986 (SARA). CERCLA, as
amended, strengthens the partnership between the Federal Government and State and local authorities.
State and local governments play an important role in ensuring effective, efficient and well-coordinated cleanups. Often local authorities
are the first responders at the scene of a hazardous substance release, providing critical fire protection, security, and health-related
services.
HOW STATES AND
LOCAL
GOVERNMENTS
BECOME
INVOLVED
The law authorizes the Federal Government to take response actions at a site (Federal-lead), or to
transfer the necessary funds and management responsibility to a State (State-lead), to political
subdivisions of States or to federally recognized Indian Tribes. Regardless of who has the lead, the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR Part 300) is the
master plan for Superfund response. Together, CERCLA, as amended, and the NCP, ensure States
involvement in response by requiring EPA to work with States during: 1) negotiations with potentially
responsible parties (PRPs), 2) the National Priorities List (NPL) listing and deleting process, 3) study of
the site to determine cleanup options, and 4) selection and implementation of the remedy.
CERCLA, as amended, prohibits EPA from providing for a remedial action unless the State makes the
following assurances or guarantees:
• Pay part of the cleanup. A State is required to pay 10 percent of the cost of actual cleanup only if
the site was privately operated at the time of the hazardous substance release. A State is required to
pay 50 percent or more of the total response costs incurred by Superfund if the State or locality
operated the site at the time hazardous wastes were disposed there. For States example, if an old
municipal landfill is found leaking hazardous chemicals, the State would be required to provide at
least half the cost of an entire Superfund response. Political subdivisions may provide the cost share,
but the State must assure payment in case of default.
• Ensure the availability of a facility(s) for disposal of hazardous materials removed from a site during
cleanup. Disposal facilities must comply with all Federal and State requirements, and must not
threaten the quality of human health and the environment.
• Ensure that the State's disposal capacity can adequately handle all wastes generated within the State
over 20 years (effective starting in 1989).
• Operate and maintain the selected remedy once the cleanup is completed and is proven to be
operational and functional. The State assumes full responsibility for future operation and
maintenance. Although a political subdivision may manage the actual operation and in maintenance
of the selected remedy, the State maintains ultimate responsibility.
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OVERVIEW OF CERCLA
Congress enacted the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA), commonly
known as Superfund, in 1980. This law
created a tax on the chemical and
petroleum industries and provided broad
Federal authority to respond directly to
releases or threatened releases of hazardous
substances that may endanger public health
or welfare or the environment. Over five
years, $1.6 billion were collected, and the
tax went to a Trust Fund for cleaning up
abandoned or uncontrolled hazardous waste
sites. The U.S. Environmental Protection
Agency (EPA) is responsible for running
the Superfund program.
On October 17, 1986, the Superfund
Amendments and Reauthorization Act
(SARA) was signed into law. SARA
increases the Trust Fund to $8.5 billion
over five years, and strenghtens EPA's
authority to conduct cleanup and
enforcement activites.
Under the Superfund program, EPA can:
• Pay for the cleanup of hazardous
waste sites when those responsible for
such sites cannot be found or are
unwilling or unable to clean up a site.
• Take legal action to force those
responsible for hazardous waste sites
that threaten public health or the
enviroment to clean up those sites or
pay back the Federal Goverment for
the costs of cleanup.
The law authorizes two kinds of response
actions:
• Short-term removals where actions
may be taken to address releases or
threatened releases requiring prompt
response.
• Longer-term remedial responses that
permanently and significantly reduce
the dangers associated with releases or
threats of releases of hazardous
substances that are serious but not
OVERVIEW OF SUPERFUND PROCESS
State and local involvement in the Superfund program varies depending upon the type of response action. During a removal action, which
is an action taken over the short term to address a release or threatened release of hazardous substances, often local authorities are the
first responders at the incident. For example, a city fire or police department can respond immediately to hazardous substance releases
or may serve in a support role to a State or Federal authority conducting removal cleanup activities.
During a remedial action, which is an action intended to stop permanently or substantially reduce over the long term a release or
threatened release of hazardous substances, there are many ways for State and local governments to participate. States may conduct
the Preliminary Assessment and Site Inspection (PA/SD. the Remedial Investigation and Feasibility Study (RI/FS) or the Remedial Design
and Remedial Action (RD/RA). States and local governments also may help identify potentially responsible parties and inform local
communities about a cleanup. Whether a site requires a remedial or removal response, the role of State and local agencies is critical in
protecting public health and the environment.
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MECHANISMS TO ENSURE
STATE AND LOCAL
INVOLVEMENT
CODE OF
FEDERAL
REGULATIONS
40 CFR Part 35
Subpart 0
Superfund provides the following mechanisms for State and local involvement:
• Cooperative Agreements transfer funds from EPA to States, political subdivisions thereof, and/or
Indian Tribal governments to undertake the lead for site-specific response, or to defray their
costs associated with participation in Federal-lead or political subdivision-lead responses or other
CERCLA implementation activities. It is also the legally binding document to get assurances
when the State does a remedial action. If a State receives funds through a Cooperative
Agreement, the State is not prohibited from entering into intergovernmental agreements with
political subdivisions for Superfund response.
• Superfund State Contracts are joint, legally binding agreements between EPA and a State or
Indian Tribe. Superfund State Contracts provide a vehicle for assuring the transfer of State
cost-sharing funds when EPA is leading a response action, for documenting that States meet all
required assurances under CERCLA, as amended, and for documenting CERCLA Section 121(1)
involvement during a political subdivision-lead response.
Procedures for using Cooperative Agreements and Superfund State Contracts for Superfund
responses can be found at 40 CFR Part 35 Subpart 0.
THE ROLE OF POLITICAL
SUBDIVISIONS
A political subdivision may be directly involved in a Superfund remedial cleanup. States, however,
are required to be active partners. What legally constitutes a political subdivision differs from State
to State. It is the responsibility of each State to determine what unit of government meets its
legislative definition of a political subdivision (for example, a region, county, or town).
If a political subdivision leads the Superfund response, there are two options available to ensure
appropriate State involvement and to provide the required assurances. In the first option, EPA enters
into a Cooperative Agreement directly with the political subdivision. In this scenario, EPA must also
enter into a three-party Superfund State Contract, which specifies how EPA, the State, and political
subdivision will comply with CERCLA Sections 104 and 121 and the NCP. In the second option,
EPA enters into a Cooperative Agreement directly with the State. The State, in turn, "passes through"
the funds to a political subdivision and enters into a two-party Intergovernmental Agreement with the
political subdivision prior to either the State or political subdivision incurring costs for field activities.
This second option is similar to a State hiring a contractor to conduct response activities.
THE ROLE OF INDIAN
TRIBES
Under the law, EPA is required to treat Indian Tribal governments substantially the same as
States. This means that if a Tribe is federally recognized, it may lead a response or may provide
support when EPA leads the activities. To be considered substantially equivalent to States, an
Indian Tribe must have jurisdiction over a site listed in CERCLIS (EPA's data base of information
on hazardous waste sites). Federally recognized Indian Tribes may not have to provide CERCLA
Section 104 assurances in all cases. Currently, EPA provides for off-site disposal, and the
decision of who will oversee the operation and maintenance of the remedy is made on a
case-by-case basis.
THE ROLE OF
LOCAL GOVERNMENTS
Local governments also play an important role during a Superfund cleanup. Although most local
governments do not have the resources to conduct entire cleanups at hazardous waste sites, localities
often provide important public safety measures during emergencies, and may receive some financial
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on Reimbursement to Local Governments for Emergency Response to Hazardous Substances
Releases (40 CFR Part 310). In addition, EPA has prepared a fact sheet and application package that
can be obtained by contacting EPA's RCRA/Superfund Hotline.
Local communities are important sources of information. Localities may be the first to identify a
hazardous waste site by bringing it to the attention of State or Federal authorities. Communities can
provide valuable details about a Superfund site, including information on the location of sites (site
discovery), detail on site history (site investigation), and/or information on potentially responsible
parties.
States often will coordinate with local officials to identify community concerns regarding a site
cleanup. Throughout all cleanup actions, local officials are kept informed of plans and progress
through telephone contacts or visits by EPA and State staff. Communities may also be asked to
review and comment on important reports, studies, and proposed actions.
Whether a Federal-lead or State-lead managed response, to guarantee that local citizens are involved
in decisions about cleanup actions in their communities, both EPA and the State conduct formal and
informal community relations activities. Each NPL site designated for remedial response under
Superfund must have an approved Community Relations Plan (CRP) in place before field activities
can begin.
As the Superfund program continues to address the hazardous waste issue nationwide, State and
local governments will assume an increasingly active role in confronting issues at Superfund sites.
Some States have already developed their own State-wide cleanup program to address sites not
included on EPA's National Priorities List.
In an effort to support State and local involvement in Superfund responses, EPA has taken several
steps:
• Developed a new Subpart to the NCP, the roadmap to conducting responses under CERCLA.
This Subpart outlines the requirements for State, local and Indian Tribal involvement in all phases
of response.
• Published an administrative rule to complement the general procedures described in the NCP.
This rule, Cooperative Agreements and Superfund State Contracts for Superfund Response
Actions, can be found at 40 CFR Part 35 Subpart 0.
• Developed a series of Directives, designated by the 9375.5 code, which is guidance relating to
State, political subdivision, and federally recognized Indian Tribal involvement in the Superfund
program.
The Agency also is encouraging States and local governments to participate in EPA-sponsored
training programs.
FOR MORE
INFORMATION
For more information on State and local involvement in the Superfund program, contact the
RCRA/Superfund Hotline at 202-382-3000 or 1-800-424-9346. For a list of directives and
publications or information on obtaining copies, contact the Superfund Docket & Information Center
(SDIC) at 202-382-6940.
For more information on training opportunities for State and local governments and Indian Tribes,
contact the Superfund Training Coordinator in EPA's Office of Solid Waste and Emergency
Response at 202-382-4364.
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