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Office of Inspector General
Audit Report
Assistance Agreements
Statutory Authority for
EPA Assistance Agreements
E3AMF8-11-0008-8100209
September 18,1998

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Inspector General Division(s)
Conducting the Audit
Headquarters Audit Division
Washington, D.C.
Region(s) covered	EPA Headquarters
Program Office(s) Involved	Office of Grants and Debarment
Office of Prevention, Pesticides and Toxic Substances
Office of Solid Waste and Emergency Response

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MEMORANDUM
SUBJECT:
FROM:
TO:
Statutory Authority for EPA Assistance Agreements
Audit Report No. E3AMF8-11 -0008-8100209
Elissa R. Karpf
Deputy Assistant Inspector General
for External Audits (2421)
Alvin M. Pesachowitz
Acting Assistant Administrator
for Administration and Resources Management (3101)
Our final audit report on Statutory Authority for EPA Assistance Agreements is
attached. The purpose of this audit was to determine whether the activities funded by
EPA were within the Agency's assistance authorities as described in relevant statutes.
This audit report describes findings and corrective actions the Office of the
Inspector General (OIG) recommends to strengthen assistance agreement
management. It represents the opinion of the OIG. Final determination on matters in
this audit report will be made by EPA managers in accordance with established EPA
audit resolution procedures. Accordingly, the findings described in this report are not
binding upon EPA in any enforcement proceedings brought by EPA or the Department
of Justice.
Action Required
In accordance with EPA Order 2750, you, as action official, are required to provide
this office a written response to the audit report within 90 days of the final audit report
date. As the Action Official for this report, you should coordinate preparation of the
response with other appropriate Agency officials. Your response to the final report
should identify any completed or planned actions related to the report's
recommendations. For corrective actions planned but not completed by the response
date, reference to specific milestone dates will assist in deciding whether to close this
report.

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We have no objection to the further release of this report to the public. Should you
or your staff have any questions, please contact Norman E. Roth, Divisional Inspector
General, Headquarters Audit Division, on (202) 260-5113.
Attachment
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EXECUTIVE SUMMARY
INTRODUCTION
Assistance is the transfer of anything of value for a public purpose of support or
stimulation authorized by law. EPA program offices provide funding and are
responsible for programmatic and technical oversight of the assistance process. The
Grants Administration Division (GAD) assures assistance application completeness by
performing an administrative review of the assistance application.
OBJECTIVE
Congress has granted EPA authority to enter into assistance agreements in many of
the Agency's environmental statutes. The objective of this audit was to determine
whether the activities funded by EPA were within EPA's assistance authorities as
described in the relevant statutes.
RESULTS IN BRIEF
In our opinion, the cited statutes did not provide authority for 25 of the 57 assistance
agreements reviewed:
Assistance agreements reviewed 57 $47,938,613
Assistance agreements questioned 25 8,343,274
Percent questioned	44% 17%
EPA, with the support of the Office of General Counsel (OGC), believes that all but one
of the 25 questioned assistance agreements are allowable. EPA has taken a much
broader interpretation of its assistance authorities than we believe is warranted to fund
a wide range of projects which are related to EPA's mission and stimulate a public
purpose. For example, Section 311 (c) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) authorizes research aimed at
understanding and mitigating the effects of pollutants on human health, and detection
of hazardous substances. We questioned nine assistance agreements citing the use
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this authority to support such activities as technical assistance, environmental justice
activities, and economic redevelopment studies.
RECOMMENDATIONS
We recommend that: EPA seek clear statutory authority for the types of awards that we
identified as questionable; strengthen controls to prevent unauthorized awards;
develop guidance to clarify the types of activities EPA will and will not fund; and
provide additional training for personnel involved in such decisions.
Agency Response
The Acting Assistant Administrator for Administration and Resources Management
stated that "contrary to many of the audit findings, the Agency believes that the
activities questioned in the Draft Report are authorized by EPA's grant statutes.
Although we disagree with many of the audit findings, we concur with the audit
recommendations. The actions recommended will help ensure that our assistance
programs continue to be administered properly and that activities funded are within the
Agency's assistance authorities." See Appendix B for the full text of EPA's response.
OIG Evaluation
EPA has broadly interpreted its grant-making statutes in order to provide assistance for
a wide range of environmental projects. While we understand why EPA has taken this
approach, we can find nothing in the statutes themselves or the legislative histories
which support EPA's position. We appreciate EPA's willingness to make the process
improvements which we have recommended. We hope those actions will reduce or
eliminate awarding assistance agreements to unauthorized entities or for unauthorized
purposes.
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TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY	 i
FINDINGS AND RECOMMENDATIONS
CHAPTER 1
Introduction
Objective		1
Background		1
Scope and Methodology		2
Prior Audit Coverage		3
CHAPTER 2
Statutory Authority for Assistance Awards is Questionable	 4
Questionable CERCLA Assistance Awards 	 4
Questionable Brownfields Job Training and Development Pilots	 7
Questionable TSCA Assistance Awards	 10
Questionable FIFRA §20 Awards	 12
Questionable FIFRA §23 Awards	 12
Recommendations 	 15
Agency Response	 16
OIG Evaluation 	 16
Appendix A
Questionable Assistance Agreements	 17
Appendix B
Agency Responses to the Draft Report	29
Appendix C
Distribution	 50
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CHAPTER 1
INTRODUCTION
Objective	Congress has granted EPA authority to enter into
assistance agreements in many of the Agency's
environmental statutes. The objective of this audit was
to determine whether the activities funded by EPA were
within the Agency's assistance authorities as described
in the relevant statutes.
Background	Assistance is the transfer of anything of value for a
public purpose of support or stimulation authorized by
law.1 While every federal agency has inherent authority
to enter into contracts to procure goods or services for
its own use, there is no comparable inherent authority to
provide the government's money or property under
assistance agreements. Congress must provide
authorization. Therefore, an agency's basic legislation
must be studied to determine whether an assistance
relationship is authorized at all, and if so, under what
circumstances and conditions. EPA's policy is to award
assistance agreements that are legal, administratively
correct, and support the Agency's mission, as quickly as
possible after funds become available.2
EPA program offices provide funding and are
responsible for programmatic and technical oversight of
the assistance process. The program office
communicates funding decisions through a Decision
Memorandum or an Assistance Funding Order. The
program office must designate the statutory authority in
the decision memorandum. Grants Management Offices
(GMOs) assure assistance application completeness by
performing an administrative review of
1	31 U.S.C. 6101.
2	EPA Order 5730.1, Policy and Procedures for Funding
Assistance Agreements, January 21, 1994, paragraph 2.
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the assistance application. The GMO provides an
overall "check and balance" function, assuring the
correctness of the statutory authority.3
Scope and	In July 1997, we began an audit of EPA's preaward
Methodology	management of assistance agreements. Our objective
was to identify opportunities to improve the Agency's
policies and processes for awarding assistance
agreements. Our original universe of 1,118 EPA
Headquarters assistance agreements, taken from EPA's
Grants Information and Control System (GICS),
consisted of all active assistance agreements with
nonprofit organizations and all active "X"-grants.4 The
results of our original judgmental audit sample revealed
that 9 of 30 assistance agreements5 lacked statutory
authority, based on a comparison of the grant-making
language in the statutes cited and the description of
work to be performed. The questionable assistance
agreements cited the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA);
the Toxic Substances Control Act (TSCA); and the
Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA). Based on these results, we decided to
address the issue of statutory authority in a separate
audit report.
We selected an additional judgmental sample of 27
assistance agreements, focusing on those citing
CERCLA §311 (c), TSCA §10, TSCA §28, FIFRA §20 or
FIFRA §23. For each award, we reviewed the grant-
making language in the statutes cited as authority for
the award and the recipient's proposed work plan.
We conducted this audit in accordance with the
Government Auditing Standards (1994 Revision) issued
by the Comptroller General of the United States. We
3	EPA Order 5730.1, paragraph 4(b)(2)(a).
4	The "X" in X-grants, is a GICS code for surveys, studies,
investigations and special purpose grants.
5	Grants and cooperative agreements are types of assistance
agreements.
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reviewed Federal Managers' Financial Integrity Act
(FMFIA) controls related to the audit objective. We also
reviewed Agency policies for ensuring the accuracy of
the statutory authorities cited for assistance awards.
Because our use of GICS was limited to sample
selection, we did not evaluate controls over GICS, or the
quality or integrity of GICS data.
Prior Audit Coverage	No other OIG reports have been issued on this subject.
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CHAPTER 2
Statutory Authority for Assistance Awards is Questionable
Questionable CERCLA In our opinion, CERCLA §311 (c) does not authorize the
Assistance Awards	work described in nine of the assistance awards
reviewed. CERCLA §311 (c) authorizes the EPA
Administrator to:
support, through grants, cooperative agreements,
and contracts, research with respect to the detection,
assessment, and evaluation of the effects on and
risks to human health of hazardous substances and
detection of hazardous substances in the
environment. The Administrator shall coordinate
such research with the Secretary of Health and
Human Services, acting through the advisory council
established under this section, in order to avoid
duplication of effort.
EPA has had internal disagreement since at least 1988
over the scope of CERCLA §311 (c). In July 1988, the
Office of Research and Development (ORD), the Office
of the Comptroller (OC) and the Grants Administration
Division (GAD) argued that CERCLA §311(c) authorized
only grants for health effects research and monitoring.
According to records of a July 29, 1988, meeting:
GAD expressed concern about taking a broader
interpretation because EPA had proposed an
addition to [the Superfund Amendments and
Reauthorization Act] which would provide CERCLA
authority equivalent to section 8001 of [the Resource
Conservation and Recovery Act], However,
Congress passed the current 311(c) language
instead, severely restricting the Agency's grant
authority.
OSWER [the Office of Solid Waste and Emergency
Response]'s position was that the program needed
to push the use of this authority as far as possible
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because this is the only funding mechanism
available to Superfund for these very necessary
quasi-research activities conducted for EPA by the
various State organizations.
OGC [Office of General Counsel] stated that
OSWER/OGC had agreed earlier to take a broader
interpretation of the authority, and OGC still believed
such an interpretation was possible. . . OGC
understood OSWER's need for the quasi-research
projects for which CERCLA provides no specific
authority and for that reason had been willing to
adopt the broader interpretation of this authority.
(Emphasis added.)
As a basis for their broad interpretation of CERCLA
§311(c), Agency representatives point to a February 16,
1994, OGC legal opinion, which explained that EPA
offices other than ORD were authorized to fund
research, and they could do so from either the Research
and Development, or the Abatement Control and
Compliance appropriations. That legal opinion quoted a
definition of research taken from OMB Circular A-11,
Preparation and Submission of Budget Estimates.
Circular A-11 defined "basic research" as, "systematic
study directed toward greater knowledge or
understanding of the functional aspects of phenomena
and of observable facts without specific applications
toward processes or products in mind." OGC's opinion
states that:
The Circular's expansive definition includes research
"in all fields, including education and the social
sciences." This extends to the economic,
socioeconomic, institutional, policy, and education
studies, surveys, etc. that are funded by program
offices.
However, this legal opinion was aimed at the broad
question of which EPA offices could fund research, and
from which appropriations. It was not aimed at
interpreting CERCLA §311 (c). Notwithstanding this
broad interpretation of CERCLA §311(c), in several
cases OGC cautioned program office representatives,
prior to making assistance awards, that the awards were
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questionable. For example, OGC reviewed assistance
award CR825713 to the International City/County
Managers Association (the work to be done under this
agreement is summarized on page 20). OGC's June 10,
1997, memorandum to OSWER stated that:
An argument can be made that these activities
constitute research with respect to the evaluation of
the effects on and risks to human health of
hazardous substances. Such an argument would be
based on the need for a vigorous hazardous waste
management program, supported by an analysis of
this data.
However, this argument is not without vulnerability.
Section 311(c) does not explicitly authorize the
proposed activities. If you make this award, you
and the recipient will be accepting the risk that costs
under section 311 (c) will be questioned, should the
project be audited. Therefore, we strongly
encourage your office to seek explicit statutory
authority to provide assistance for these types of
activities. (Emphasis added.)
OGC provided OSWER the same advice on assistance
awards to the Northeast-Midwest Institute, CR824570,
the U.S. Conference of Mayors (USCM), CR825342,
and the National Governors Association (NGA),
CR825860. OGC likewise advised EPA's Office of
Policy, Planning, and Evaluation concerning award
CR825755 to the Northeast-Midwest Institute. Even
under its broad interpretation, the Agency agrees with
us that training, technical assistance, and public service
announcements are not research, and would not be
authorized under CERCLA §311 (c).
We agree with Agency representatives that the
legislative history of CERCLA offers no insight into the
meaning of "research" under CERCLA §311 (c). Our
interpretation of the statute rests on the historical
context in which CERCLA was passed, i.e., that
Congress was concerned about contamination from
manufacturing, municipal landfills, mining, and federal
defense and energy activities. Therefore, CERCLA
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§311(c) authorized research aimed at understanding
and mitigating the effects of pollutants on human health,
and detection of hazardous substances. The awards
that we question fund technical assistance to state and
local governments, address environmental justice
issues, study the effects of laws and regulations on the
economic redevelopment of brownfield sites, and fund
meetings and conferences.
The Agency has determined that publicizing the results
of research is an integral component of the research
itself; therefore, workshops and conferences would also
be authorized. In fact, all nine of the CERCLA §311 (c)
grants we reviewed included meetings, workshops, and
conferences. These appear to be the primary activities
for five of these grants. The proposals provide no
indication that publicizing the research results is the
reason for the meetings/conferences. In fact, the
meetings and research appear to be unrelated to each
other.
Finally, as noted above, CERCLA §311(c) requires that
EPA "coordinate such research with the Secretary of
Health and Human Services, acting through the advisory
council established under this section, in order to avoid
duplication of effort." Agency representatives could
provide no record that assistance agreements issued
under CERCLA §311 (c) were coordinated with HHS.
For all of these reasons we disagree with the Agency's
position, and question the allowability of all nine
CERCLA §311(c) assistance agreements in our
sample.Questionable Brownfields Job Training and
Development Pilotsln August 1998, OSWER awarded
11 Brownfields Job Training and Development
Demonstration Pilots (hereinafter, "Pilots"). Each pilot
recipient will receive up to $200,000 over two years. In
our opinion, CERCLA does not authorize these awards.
According to EPA's Brownfields Economic
Redevelopment Initiative Internet page6, a critical part of
EPA's efforts to encourage assessment and cleanup of
http://www.epa.gov/brownfields/html-doc/jtguide.htm
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brownfields is participation by affected residents. In
addition, EPA works to ensure that disadvantaged
residents do not bear a disproportionate burden of the
effects of environmental contamination. To help
residents take advantage of new jobs created by the
assessment and cleanup of brownfields, EPA initiated
the Pilots.
Pilot funds may be used to train residents in
communities impacted by brownfields in the procedures
for the handling and removal of hazardous substances,
in the management of facilities at which hazardous
substances are located, for response activities
associated with cleanups (e.g., landscaping, demolition,
groundwater extraction), for development of training
curricula, and for outreach activities directed toward
improving participation in this training. Pilot funds
should, whenever possible, be used to ensure that
training participants include, but are not limited to, the
unemployed, welfare to work, environmental justice
communities, and other disadvantaged communities.
CERCLA §311(b), Alternative or Innovative Treatment
Technology Research and Demonstration Program,
provides, in pertinent part:
(1) ESTABLISHMENT.-The Administrator is
authorized and directed to carry out a program of
research, evaluation, testing, development, and
demonstration of alternative or innovative treatment
technologies (hereinafter in this subsection referred
to as the "program") which may be utilized in
response actions to achieve more permanent
protection of human health and welfare and the
environment.
(9) TRAINING.-The Administrator is authorized and
directed to carry out, through the Office of
Technology Demonstration, a program of training
and an evaluation of training needs for each of the
following:
(A) Training in the procedures for the handling and
removal of hazardous substances for employees
who handle hazardous substances.
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(B) Training in the management of facilities at which
hazardous substances are located and in the
evaluation of the hazards to human health presented
by such facilities for State and local health and
environment agency personnel.
Based on a May 29, 1997, memorandum from the Office
of General Counsel, OSWER cites CERCLA §311 (b) as
authority to award assistance agreements for training.
We disagree with the Agency on the scope of the
training program, and on who is eligible for training.
Scope of the Training	OGC advised OSWER that training "in the procedures
Program	for the handling and removal of hazardous substances,"
and "in the management of facilities at which hazardous
substances are located," are not limited only to training
in alternative and innovative (A&l) treatment
technologies.
The preamble language of §311 favors the interpretation
that the training must be related to A&l technologies.
One of the stated purposes of §311 was:
to establish a comprehensive and coordinated
Federal program of research, development,
demonstration, and training for the purpose of
promoting the development of alternative and
innovative treatment technologies ....
(emphasis added)7
With this purpose, it is difficult to see how the training
authorized under §311(b) could be divorced from any
A&l relationship. It is illogical to expect that training
unrelated to A&l treatment technologies would promote
the development of such technologies.
Who Are Eligible	With respect to who can be trained, the Agency asserts
Trainees?	that the requirement to train "employees" is satisfied if
the training is provided for individuals to become
employed in the field of handling hazardous substances.
To interpret the term "employees" to mean those
Superfund Amendments and Reauthorization Act of 1986,
§209(a).
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currently handling hazardous waste and persons who
might someday join the field, renders the term
meaningless by excluding no one.
The training is intended for persons already working in
the hazardous materials field. This interpretation is
consistent with the term "employee," which is defined to
mean someone working for another for financial
compensation. Senator Stafford's remarks upon first
introducing the research and training amendment further
support this interpretation. Senator Stafford remarked
that the amendment was designed to:
provide research and training authority to both
EPA and HHS ... [since they] have the broad
range of experience necessary to plan and
implement the variety of activities that are needed
to strengthen current research efforts and to
increase through graduate training and
continuing education the cadre of appropriately
trained personnel.8
We believe that assistance agreements for §311 (b)
training must be related to A&l treatment technologies,
and must be intended to train employees who handle
hazardous substances. Training the unemployed or
unskilled for routine construction tasks (landscaping,
demolition, groundwater extraction) would, in our
opinion, be an unauthorized use of assistance
agreements.
Questionable TSCA	We reviewed nine assistance agreements citing TSCA,
Assistance Awards	i.e., five issued under TSCA §10, Research,
Development, Collection, Dissemination and Utilization
of Data; and four citing TSCA §28, State Programs. We
questioned three of the five TSCA §10 awards and three
of the four TSCA §28 awards. Under TSCA §10(a):
Congressional Record, September 16, 1985; reprinted in
Congressional Research Service, A Legislative History of
the Superfund Amendments and Reauthorization Act of
1986, at 1118 (1990).
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The [EPA] Administrator shall, in consultation and
cooperation with the Secretary of Health and
Human Services and with other heads of
appropriate departments and agencies, conduct
such research, development and monitoring as is
necessary to carry out the purposes of this [Act],
We questioned assistance awards that were neither
research, development, nor monitoring. Instead, these
awards fund public outreach, training and environmental
justice activities. Agency representatives suggest that
training falls within the scope of "development," because
training is a developmental activity. We do not believe
that the training funded by these agreements falls within
TSCA §10. The only training authorized under TSCA
§10 is training for federal laboratory and technical
personnel in existing or newly developed screening or
monitoring techniques (TSCA §10(f)).
As for the requirement that EPA conduct research "in
consultation and coordination with the Secretary of
Health and Human Services and other heads of
appropriate departments and agencies," OPPTS
representatives indicated that when TSCA §10 was
written, the research that was envisioned primarily
concerned hazard research, and it was closely
coordinated with groups like the National Institutes of
Health (NIH) and the Toxics Control Program (also
managed by the Department of Health and Human
Services). Since 1978, interaction between EPA and
DHHS has diminished significantly, and is now limited to
OPPTS' lead program (which also involves the Center
for Disease Control - part of DHHS), and the Toxic
Release Inventory data base, which EPA makes
available to the public through a system maintained by
the National Library of Medicine (also part of
NIH/DHHS).
We questioned three assistance agreements citing
TSCA §28. Two agreements, one with the Rhode Island
Department of Environmental Management, and one
with the Nevada Department of Conservation and
Natural Resources, assist the states in developing state
accidental release prevention programs under the Clean
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Air Act (CAA) §112(r), Prevention of Accidental
Releases. TSCA §28 authorizes:
grants to States for the establishment and
operation of programs to prevent or eliminate
unreasonable risks within the States to health or
the environment which are associated with a
chemical substance or mixture and with respect
to which the [EPA] Administrator is unable or
is not likely to take action under this Act for
their prevention or elimination. (Emphasis
added.)
Neither work plan establishes that the states will
address chemicals with respect to whether EPA is
unable or unlikely to take action. Further, we believe
that the proper statutory authority for establishing CAA
§112(r) programs is CAA §112(1), State Programs.
Grant X822739 to the Unison Institute, was an award to
an ineligible recipient. Unison maintains a Right to
Know (RTK) internet site. TSCA §28 authorizes
assistance to states. Unison is a nonprofit organization,
and therefore not eligible for a TSCA §28 assistance
award. The grant was later amended to cite TSCA §10
rather than TSCA §28. However, maintaining an
internet site is not research, development or monitoring
as authorized under TSCA §10.
Questionable FIFRA	We questioned four of five assistance agreements citing
§20 Awards	as authority FIFRA §20. FIFRA §20, Research and
Monitoring, authorizes research as may be necessary to
carry out the purposes of the Act, and research into
integrated pest management in coordination with the
Secretary of Agriculture. The questioned assistance
agreements fund training, or the assessment of training
programs. These activities do not constitute research or
monitoring.
Of 13 assistance agreements citing as authority FIFRA
§23, State Cooperation, Aid, and Training, we
questioned five. FIFRA §23(a)(1) authorizes
cooperative agreements with states and tribes to
cooperate in the enforcement of FIFRA; to train state
Questionable FIFRA
§23 Awards
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and tribal personnel to cooperate in the enforcement of
FIFRA; and to assist states and tribes in implementing
cooperative enforcement programs. In addition, FIFRA
§23(a)(2) authorizes cooperative agreements:
to assist States in developing and administering
State programs, and Indian tribes that enter into
cooperative agreements, to train and certify
applicators consistent with the standards the
Administrator prescribes . . . there are authorized
to be appropriated annually such funds as may
be necessary for the Administrator to provide
through cooperative agreements an amount
equal to 50 percent of the anticipated cost to
each State or Indian tribe, as agreed to under
such cooperative agreements, of conducting
training and certification programs during such
fiscal year. If funds sufficient to pay 50 percent of
the costs for any year are not appropriated, the
share of each State and Indian tribe shall be
reduced in a like proportion in allocating available
funds.
The activities funded by the FIFRA §23 agreements
listed in Appendix 1 were neither enforcement activities
nor applicator training. The activities constitute
research on the effects of pesticides and pest
management. The awards, although not authorized by
FIFRA §23, would be authorized by FIFRA §20.
Old Statutes vs. New
Agency Initiatives
The Agency, with OGC's advice and support, has taken
a much broader interpretation of its assistance authority
than is warranted, to fund a wide range of projects which
are related to EPA's mission and stimulate a public
purpose. Some of the Agency's grant-making
authorities (Clean Air Act, Clean Water Act) are broad
enough to encompass most public purpose projects
proposed under their guise. For example, the Clean
Water Act allows the Agency to make grants to state
agencies, other public or nonprofit private agencies,
institutions, organizations, and individuals to conduct
and promote the coordination and acceleration of
research, investigations, experiments, training,
demonstrations, surveys, and studies relating to the
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causes, effects, extent, prevention, reduction, and
elimination of pollution.Contrast this explicitly broad
authority under the Clean Water Act §104 with the
grant-making authority of CERCLA §311 (c). (See page
4 of this report.) In order to fund under CERCLA
§311 (c) what the Agency considers to be worthwhile
projects proposed by nonprofit groups, EPA has had to
relate these projects to health effects research.
OPPTS officials have struggled to overcome restrictive
assistance authority under its program statutes. The
Toxic Substances Control Act was passed in 1978.
Many new programs and initiatives have been
undertaken since then. The restrictive assistance
authority in TSCA §10 (research, development and
monitoring) coupled with a "mature statute" which never
contemplated current-day environmental initiatives, has
resulted in the Agency stretching its assistance
authority.
The same can be said of FIFRA. For example, OPPTS
has interpreted FIFRA §23 (grants to states and tribes
for FIFRA enforcement programs) to encompass a wide
variety of activities which when accomplished would
preclude the need for enforcement actions. Therefore,
authorized activities would include public outreach,
pesticides management training, workshops, and
conferences.
The responsibility for identifying statutory authority rests
with the program offices. The Grants Administration
Division (GAD) is tasked with serving a "check and
balance" function. GAD representatives told us that
grants specialists question statutory authority for
assistance agreements if an award seems improper, but
they are not checking statutory authority in any
systematic way.
It is unrealistic to expect GAD to understand assistance
authorities better than the affected program offices. We
found resource officials in OSWER and OPPTS to be
very cognizant of their statutes with respect to
assistance authority. As we mentioned earlier, we saw
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evidence that when this authority was in doubt, the
program office sought the advice of OGC before
entering into the assistance agreement. However, our
interpretation of the response from OGC was
diametrically opposed to the program offices'. Where
we viewed the OGC response as a reason not to initiate
the agreement, OSWER saw it as the opposite. Since
OGC told OSWER that "an argument could be made" for
awarding the agreement, they did so.
Since there is no evidence in published legislative
histories as to how Congress intended the restrictive
assistance authorities to be interpreted, program offices
and the OIG now differ about the extent of the Agency's
assistance authority. While some may see this as a
black or white issue, numerous discussions among all
parties have made it clear that reasonable people have
differing opinions. By laying out these differences we
hope that Congress will assist EPA to clarify
congressional intent.
In the meantime, there are some actions that the Agency
can take to reduce its vulnerability to issuing assistance
agreements without statutory authority. Most of these
actions revolve around guidance and training.
RECOMMENDATIONS	We recommend that the Acting Assistant Administrator
for Administration and Resources Management:
2-1 Coordinate with the Assistant Administrators for
OSWER and OPPTS and the Associate
Administrator for Congressional and
Intergovernmental Relations to obtain clear
statutory authority to fund assistance agreements
for the types of activities questioned in this
report, i.e., technical assistance, environmental
justice, and economic redevelopment studies
under CERCLA; public outreach, training and
environmental justice activities under TSCA; and
training and training assessments under FIFRA.
2-2 Clarify existing policies and guidance. EPA
Order 5730.1 requires program offices to
designate the statutory authority in the decision
memorandum. Rather than merely citing a
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statute, the program offices should be required to
briefly explain how the proposed work is
authorized by the cited statute. Grants
Management Offices should return any funding
package missing this information.
2-3 Work with Senior Resource Officials to issue
interim guidance to clarify the types of activities
that their respective program offices will and will
not fund, including examples of the types of
projects the Agency should not fund.
2-4 Require the Grants Administration Division, in
coordination with Senior Resource Officials, to
incorporate into project officers and managers
training, information on the types of awards the
Agency should, and should not, fund.
We recommend that the Assistant Administrator for
OSWER coordinate all CERCLA §311(c) assistance
awards with the Secretary of Health and Human
Services, as required by the statute.
AGENCY RESPONSE	On July 8, 1998, the Acting Assistant Administrator for
Administration and Resources Management stated that
"contrary to many of the audit findings, the Agency
believes that the activities questioned in the Draft
Report are authorized by EPA's grant statutes.
Although we disagree with many of the audit findings,
we concur with the audit recommendations. The actions
recommended will help ensure that our assistance
programs continue to be administered properly and that
activities funded are within the Agency's assistance
authorities." See page 29 for the Agency's response.
OIG EVALUATION	EPA has broadly interpreted its grant-making statutes in
order to fund a wide range of environmental projects.
While we understand why the Agency has taken this
approach, we can find nothing in the statutes
themselves or the legislative histories which supports
the Agency's position. We appreciate the Agency's
willingness to make the process improvements which we
have recommended. We believe those actions will
reduce or eliminate awarding assistance agreements to
unauthorized entities or for questionable purposes.
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Appendix A: Questionable Assistance Awards
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
CR822610
CERCLA
§311(b)
§311(c)
Institute for
Responsible
Management (IRM)
IRM advises states and localities addressing environmental justice issues and
economic redevelopment of hazardous waste sites. Tasks include:
•Providing assistance to the Cuyahoga County Site Assessment program.
•Identify and document problems and solutions to promote site cleanup
coordinated with economic development.
•Develop criteria for the selection of additional demonstration project sites.
•Organize conferences for state and local government agencies, development
associations, business and trade associations, environmental groups, community
leaders.
Such tasks are not authorized by the cited statutes. CERCLA §311(b) provides
for research, evaluation, testing, development, and demonstration of alternative
or innovative treatment technologies. We believe that the "research, evaluation,
testing, development, and demonstrations" of CERCLA §311(b) pertain to
physical means of mitigating contamination, not the resolution of socio-
economic issues.
We believe that §311(c) authorizes research on the effects of pollutants on
human health. For a detailed discussion of OIG and EPA interpretations of
CERCLA §311(c) this provision see page 4 of this report.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
CR824570
CERCLA
§311
N ortheast-Mi dwe st
Institute (NMI)
NMI proposed to research and publish 20 case studies on the efforts of
communities and industries to clean up and restore contaminated sites, providing
insights about risk, liability, chain of ownership, financing, and other key issues
associated with industrial site reuse. NMI will then organize constituent
meetings hosted by federal lawmakers.
In our opinion, research into redevelopment issues such as liability, chain of
ownership, and financing are not the type of research authorized by CERCLA
§311(c).
CR825342
CERCLA
§311
US Conference of
Mayors (USCM)
Research and
Education
Foundation
•	USCM will establish the National Brownfields Roundtable, a series of meetings
to identify barriers to brownfield development, to educate the public and private
sectors on EPA's brownfields administrative reforms, and to highlight innovative
development scenarios for brownfield revitalization.
•	Using questionnaires, USCM will develop and maintain a National Brownfield
Redevelopment Data Base, which will provide data for an annual Report to the
Nation on Brownfield Redevelopment.
•	USCM will provide "technical assistance, outreach, and education of local
governments, including a "peer to peer network of local officials," technical
assistance to local government officials by telephone and in person.
•	USCM will publish a bi-monthly newspaper, and articles on brownfields best
practices.
We do not believe that technical assistance, outreach, periodical publishing,
education of local government officials, and meetings qualify as research under
CERCLA §311(c).
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
CR825713
CERCLA
§311
International
City/County
Managers Assoc.
(ICMA)
ICMA conducts economic and social science research and outreach on Brownfields
sites. Activities include:
•	Brownfields peer exchange program
•	Brownfields local government coordination activities
•	Brownfields workshops and meetings
•	international Brownfields case studies
•	Superfund institutional control roundtables
•	Brownfields booklet and a showcase on community progress
•	Superfund risk assessment forums
We believe that §311(c) authorizes research on the effects on and risks to human
health of pollutants, and the detection of pollutants.
CR825755
CERCLA
§311
Northeast-
Midwest
Institute (NMI)
MNI will identify how hazardous materials liability, economic redevelopment costs,
and federal and local policies encourage or discourage brownfields redevelopment,
including:
•	Research the framework for an infill development planning model, considering
funding strategies, local/state/federal statutes and regulations, surveys about the
economic and financial results of infill development projects.
•	Conduct a conference to discuss the above research.
•	Issue a series of research papers evaluating how federal and local policies can
encourage or discourage brownfield development.
We do not believe that CERCLA §311(c) authorizes this type of socio-economic
research.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
CR825860
CERCLA
§311
National
Governors
Association
(NGA)
NGA will research successful state brownfields projects; hold brownfields
workshops; publish a brownfields "Issues Brief;" track state hazardous waste and
brownfields programs and provide outreach and communication to state brownfield
staff on best practices; prepare the 1997 report "Emergency Planning and
Community Right To Know Act: A Status of State Actions;" co-sponsor a
hazardous materials spills conference; host an executive-level workshop on chemical
emergency management; and attend state emergency response commission meetings
and national conferences.
We do not believe that publications, outreach, meetings and workshops constitute
research within the scope of CERCLA §311(c).
CR826290
CERCLA
§311
National Council
for Urban
Economic
Development
(CUED)
CUED will help economic development professionals better understand the links
between economic development and the effects of hazardous substances at
brownfields sites.
•CUED will produce a report on best practices in achieving health and
environmental protection and positive economic impacts, by gathering data on
impacts of brownfields conversions, including number of jobs; quality of jobs;
amount of land cleared; impact on tax base; impact on commercial development;
impact on community quality of life, including protection of human health.
• CUED will conduct workshops on brownfields cleanup and redevelopment, and
on federal, state and local policies and regulations that impact the links between
economic redevelopment and the detection, assessment, and evaluation of
hazardous substances at brownfields sites.
We do not believe that these activities constitute research within the scope of
CERCLA §311(c).
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
R824450
CERCLA
§311
Association of
State and
Territorial Solid
Waste
Management
Officials
(ASTSWMO)
•Administrative Support covers administrative costs for ASTSWMO's Washington.
D.C. office, i.e., maintaining ASTSWMO's mailing list, and mailing information to
members.
• State-Federal Interaction Support provides travel funds for state experts to
exchange information at ASTSWMO subcommittee, task force and subgroup
meetings, to attend State/EPA Implementation Issues Meetings, and ASTSWMO's
mid-year and annual meetings.
•State Program Enhancement Support funds the maintenance of ASTSWMO's
"peer match" directory, and posting the directory in ASTSWMO's space on EPA's
CLU-IN internet site; travel to a State Superfund Managers Conference, and State
Superfund Workshops.
ASTSWMO's proposal describes these tasks collectively as "technical assistance
and research forums ... to assist States in developing their program capabilities to
manage and remediate hazardous wastes ..." EPA's Office of General Counsel has
advised that technical assistance does not qualify as research under CERCLA
§311(c).
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of CERCLA §311
T826274
CERCLA
§311
NW Partnership
for
Environmental
Technical
Education
(NW PETE)
Ineligible recipient. Through this training grant NW PETE will help tribal colleges
to understand Superfund and related programs by conducting mini-conferences;
facilitating faculty exchanges and internships; maintaining an Internet site; and
maintaining faculty contacts using e-mail, Internet, faxes, interactive television, and
phone teleconferencing. CERCLA §311(a)(3) authorizes training grants to
accredited institutions of higher learning. NW PETE is not an accredited institution
of higher learning.
CX825486
TSCA §10
American
Institute for
Pollution
Prevention
(AIPP)
AIPP was tasked with taking over from EPA staff the job of involving trade
associations in promoting pollution prevention (P2). To accomplish this, AIPP will:
•	identify industry groups most desirable for engagement;
•	using questionnaires and telephone surveys, develop examples of initiatives or
activities in which these identified groups might engage;
•	hold monthly "Morning Dialogue Session" meetings, publish an updated P2
Resource Document, and plan and execute the 1997 Trade Association Symposium.
In our opinion, these activities are not "research, development, and monitoring" as
authorized by TSCA §10.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of TSCA
X824529
TSCA §10
Missoula
Housing
Authority
This is an Environmental Justice Initiative. It provides:
•	Training for lead abatement workers, inspector technicians, supervisors and
contractors.
•	A Community Education and Hazard Identification Program (CEffiP).
Community education will be achieved using handouts for door-to-door
distribution; posters; public meetings; programs on local access television; display of
literature at county fairs, health fairs and shopping malls; and public service
announcements.
•	A 1-800 Hotline in the CEHIP office.
In our opinion, training and public education are not research, development and
monitoring within the scope of TSCA §10.
X824610
TSCA §10
City of
Memphis
This Environmental Justice grant provides for:
•	Community Needs Assessment. A nurse will conduct door-to-door blood lead
screenings.
•	Community Outreach.
-	12 weeks of pre-training for 15 licensed practical nurse candidates;
-	lead based paint abatement training program;
-	YWCA program administration costs.
Training and community outreach activities are not research, development or
monitoring within the scope of TSCA §10.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of TSCA
CX825670
TSCA §28
Nevada Dept.
of Conservation
and Natural
Resources
Nevada will develop a state accidental release prevention program under the Clean
Air Act §112(r); §112(r) delegation packages; and conduct community outreach to
assist the regulated community to comply with §112(r) requirements. As described
on page 12 of this report, funding this grant under TSCA §28 requires that the state
address chemical substances or mixtures with respect to which [EPA] is unable or is
not likely to take action under this Act for their prevention or elimination.
The work plan does not indicate that Nevada will address chemicals with respect to
which EPA is unable or unlikely to take action. Further, we believe that the proper
statutory authority for establishing CAA §112(r) programs is CAA §112(1), State
Programs.
CX825684
TSCA §28
Rhode Island
Department of
Environmental
Management
This agreement is virtually identical to the Nevada agreement described above. Our
objections are the same as those stated above.
X822739
TSCA §28
TSCA §10
Unison Institute
Maintain the
RTK NET
Internet site.
Ineligible recipient. The original award cited TSCA §28 and the Solid Waste
Disposal Act. As TSCA §28 authorizes grants to states, Unison was not an eligible
recipient. Although the grant was later amended to cite TSCA §10 rather than
TSCA §28, at the time of award Unison was not an eligible recipient under TSCA
§28. Further, maintaining an Internet site is not research, development or
monitoring as authorized under TSCA §10.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
Activities Outside The Scope of FIFRA §20
CX820822
FIFRA §20
National
Foundation for
IPM Education
The recipient will conduct educational workshops to communicate pest
management techniques to growers, state/local officials, and environmentalists.
FIFRA §20 authorizes research and monitoring. Educational workshops are
neither.
CX825997
FIFRA §20
Jobs and
Environment
Campaign
This award provides for training and assistance to Indian tribes to develop ground
water management plans. Such training and assistance are not "research" within the
meaning of FIFRA §20.
CR825080
FIFRA §20
Yakima Valley
Farmworkers
Clinic
This award funds a study designed to research and evaluate pesticide safety training
programs, materials and delivery systems. Evaluating educational programs is not
within the scope of FIFRA §20.
CX825849
FIFRA §20
Assoc. of
Farmworker
Opportunity
Programs
(AFOP)
AFOP will evaluate the effectiveness of programs designed to teach farm workers to
protect themselves from pesticides. Evaluating educational programs is not within
the scope of FIFRA §20.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
This Work Would Be Authorized Under FIFRA §20
E999393
FIFRA §23
California
Department of
Pesticide
Regulations
This award funds a study of the potential impact of herbicides on northern
California Native Americans. This would be authorized by FIFRA §20, but not by
FIFRA §23.
MM998750
FIFRA §23
Confederated
Salish and
Kootenai
Tribes
The Tribes proposed to study the possible effects of pesticides on plants used for
cultural purposes from food to medicine. This would be authorized by FIFRA §20,
but not by FIFRA §23.
X985497
FIFRA §23
University of
Wisconsin
Department of
Entomology
This grant will:
•	Examine the impacts of foliar insecticides on predators and parasites in potatoes;
•	Develop and test integrated pest management programs which conserve naturally
occurring beneficial arthropod populations and increase biological control of key
insect pests. This would be authorized by FIFRA §20, but not by FIFRA §23.
X985735
FIFRA §23
Purdue
University
Developing
pesticide
applicator
training
software.
Ineligible recipient, inadequate match. FIFRA §23(a)(2) authorizes assistance to
States and Indian Tribes to train and certify applicators. Purdue University,
although state assisted, is not a state. Further, FIFRA §23 contains a 50% matching
requirement for training and certification programs. The EPA share of this award is
95%.
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Appendix A: Questionable Assistance Agreements
Award
Number
Primary
Authority
Recipient
This Work Would Be Authorized Under FIFRA §20
X985736
FIFRA §23
Purdue
Research
Foundation
This project attempts to develop practical, real-time sensing technologies which
detect features necessary to site-specifically apply chemicals onto selected,
individual weeds, thereby reducing the amount of chemical required to effectively
control weeds. We believe that FIFRA §20 is the proper authority for this award.
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Appendix A: Questionable Assistance Agreements
Award
Number
Authorities
Recipient
Why This Award Is Unauthorized
CR824479
Clean Air
Act (CAA)
§103
Clean
Water Act
(CWA)
§104
Solid
Waste
Disposal
Act
(SWDA)
§8001
Global
Environment
and Trade
Study (GETS)
GETS will produce four research papers:
1.	Environmental regulation and competitiveness: a study of the link between
environmental protection (particularly high environmental standards) and
competitiveness.
2.	Eco-labeling (a special seal or mark indicating that a product is less harmful to
the environment than most other similar products): Can protectionism be avoided
through harmonization of labeling systems or mutual recognition?
3.	Multilateral environmental agreements: a study of the use of trade measures in
environmental treaties.
4.	Regional free trade agreements: Identifying the types of environmental impacts
that could arise as a result of expanded trade and investment activities.
CAA §103 addresses research and development programs for preventing and
controlling air pollution. The thrust of Section 103 is "scientific" research designed
to (1) identify harmful pollutants, (2) the effects on human health and the
environment of such pollutants, and (3) the means of preventing or mitigating such
effects. CWA §104 and CAA §103 are parallel provisions. They mirror each other
and were passed into law by a Congress sensitized to the need for scientific
advancement in air and water pollution arenas. With respect to SWDA §8001, we
also believe that the research, etc., contemplated by this section refers to scientific
exploration, not the socio-economic research proposed in this grant.
In our judgement, none of the authorities cited can support this award.
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APPENDIX B
Agency Response to the Draft Report
July 8, 1998
MEMORANDUM
SUBJECT: Response to OIG's Draft Audit Report on Statutory Authority for EPA Assistance
Agreements Draft Audit Report No. E3AMF8-11-0008
FROM:	Alvin M. Pesachowitz /s/
Acting Assistant Administrator
for Administration and Resources Management (3101)
TO:	Elissa R. Karpf
Deputy Assistant Inspector General
for External Audits (2421)
Thank you for the opportunity to provide comments on the Draft Audit Report on
Statutory Authority for EPA Assistance Agreements E3AMF8-11-0008. This audit raised some
very important issues and we appreciate the chance to respond to your findings. We also
appreciate your office's professional attitude and thoughtful approach in alerting us to your
concerns.
The Office of Grants and Debarment (OGD) has worked with the Office of General
Counsel (OGC), the Office of Prevention, Pesticides and Toxic Substances (OPPTS), and the
Outreach and Special Projects Staff (OSPS) within the Office of Solid Waste and Emergency
Response (OSWER) to provide comments on the OIG's findings and recommendations. All of
the offices were very cooperative and helpful and each reviewed and provided comments on the
Draft Report. As indicated below, contrary to many of the audit findings, the Agency believes
that the activities questioned in the Draft Report are authorized by EPA's grant statutes. Although
we disagree with many of the audit findings, we concur with the audit recommendations. The
actions recommended will help ensure that our assistance programs continue to be administered
properly and that activities funded by EPA are within the Agency's assistance authorities.
Set forth below are our comments on the scope of the Agency's grant-making authorities
and the Agency's response to the recommendations contained in the Draft Report. Attached are
memoranda containing the specific comments made by OPPTS and OSWER on the Draft Report.
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I. STATUTORY AUTHORITIES
The Draft Report identifies 25 assistance agreements the OIG believes are not authorized
by the statutes cited in the respective award documents, focusing in particular on the grant
authorities provided in CERCLA §311(c), TSCA §10(a), FIFRA §20 and FIFRA §23. These
statutes authorize grants for activities such as "research," "development," "monitoring,"
"enforcement," and "training." None of these terms are defined in their respective statutes. Nor,
as the OIG acknowledges, do the legislative histories of these provisions provide evidence as to
how Congress intended these terms to be interpreted. As a result, the OIG's interpretations are
based on its opinions and beliefs as to their meanings. As the Draft Report indicates, the issues
involved in the interpretation of these provisions are not clear-cut and reasonable people may have
differing opinions regarding the scope of these authorities.
When, as here, there are a range of permissible legal interpretations, it is within the
Agency's discretion to adopt the interpretation that it believes will best enable it to meet statutory
goals and objectives. As discussed below, in the absence of statutory definitions or clarifying
legislative history, the Agency has adopted what it believes are permissible interpretations of the
terms that further the goals and objectives of CERCLA, TSCA, and FIFRA. While the Agency
believes that the statutes permit these grants, we concur with the recommendation that EPA
should seek broader authority to clarify that supported activities are authorized and to permit the
Agency to provide financial assistance for a wider range of activities.
Awards Made Under CERCLA
CERCLA S3 I I fc)
The Draft Report concludes that nine assistance agreements were not authorized by
CERCLA §311(c), which provides for grants to "support...research with respect to the detection,
assessment, and evaluation of the effects on and risks to human health of hazardous substances
and detection of hazardous substances in the environment." Based on the discussion in the Draft
Report and the analysis provided in Appendix A, it appears the OIG objects to these grants on
two grounds. The first is that the term "research" as used in CERCLA §311(c) cannot be
interpreted to include socio-economic research. The second is that improper methodologies were
used to conduct the research, e.g. the use of meetings, conferences, and newsletters.
This provision was added to CERCLA in 1986 as part of the Superfund Reauthorization
Act (SARA), but, as the OIG indicates, the legislative history of the provision offers no insight
with regard to the scope of the term "research." In the absence of such guidance, the Draft
Report states that the OIG bases its opinion regarding the interpretation of the statute upon on
what it considers to be the "historical context in which CERCLA was passed, i.e., that Congress
was concerned about contamination from manufacturing, municipal landfills, mining, and federal
defense and energy activities." Based on this "historical context," the OIG believes CERCLA
§311(c) authorizes research "aimed at understanding and mitigating the effects of pollutants on
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human health" and objects to awards to "fund technical assistance to state and local government
officials, address environmental justice issues, study the effects of laws and regulations on the
economic redevelopment of brownfields sites, and fund meetings and conferences."
The Agency believes that the scope of CERCLA §311(c) research, even as defined by the
OIG, would encompass what is referred to in the Draft Report as socio-economic research, as this
research is aimed at understanding and mitigating the effects of pollutants on human health. The
types of research projects that the OIG questions — projects addressing environmental justice
issues, studying the effects of law and regulations on the economic redevelopment of brownfields
sites, and funding meetings and conferences — may very well be aimed at "understanding and
mitigating the effects of pollutants on human health," depending on the specific activities
involved. Thus, under the OIG's standard, those projects arguably would be authorized under
CERCLA §311(c). (We agree that technical assistance generally is not research.).
More importantly, the plain language of the statute does not limit the term "research" to
exclude the activities funded under these agreements. EPA has interpreted "research" to include
study that extends to the social sciences, including socioeconomic, institutional, and public policy
issues, as well as the "natural" sciences. CERCLA §311(c) includes two separate clauses
modifying the term "research": research with respect to the "detection, assessment, and
evaluation of the effects on and risks to human health of hazardous substances" and research with
respect to the "detection of hazardous substances in the environment." Nothing in either of these
clauses limits the research to the "natural" sciences. Furthermore, limiting the definition to include
only research on the effects on "human health" would render superfluous a second phrase that
modifies the term "research" i.e., "detection of hazardous substances in the environment."
Pursuant to principles of statutory construction, the statute thus carries a broader meaning than
the one advanced by the OIG. This interpretation of "research" under CERCLA §311(c) is
consistent with §102(2)(A) of the National Environmental Policy Act (NEPA), 42 U.S.C.
§4332(2)(A) (directing agencies to use an interdisciplinary approach ensuring the integrated use
of the natural and social sciences).
The OIG's second objection to these awards is that research under CERCLA §311(c)
cannot include the funding of meetings, conferences, and workshops. "Research," however, can
be carried out through a range of activities, including not only "bench" science, but also other
forms of information gathering and exchange, such as conferences and newsletters. Among other
things, conferences can be used to obtain additional information, refine methodologies and
findings, and stimulate further research through dialogues with affected groups, as well as to
publicize or explain the results of a research project. Research encompasses more than theoretical
inquiries characteristic of a laboratory or academic setting.
However, we agree with the OIG's assessment that the Agency could do a better job of
ensuring that recipients explain how funded activities further the research objective of the
agreement. As the OIG notes, additional training and guidance for program offices would be
useful, and we will consider including a provision in the guidance about linking conference
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funding with the research aims of the award. Additionally, OSWER has begun requiring that
CERCLA §311(c) recipients agree to a term and condition ensuring that their activities remain
focused on research authorized by the statute.
The Draft Report notes several instances in which OGC advised OSWER that while
CERCLA §311(c) could be interpreted to encompass a broad range of research activities, because
certain activities were not explicitly authorized, they might be challenged if audited. OIG
interprets this advice as barring the awards. OGC, however, did not say that the activities were
not legally supportable. Given several legally supportable positions, OSWER made a reasoned
judgement, within its discretion, to award the grants.
Finally, the OIG recommends that in order to comply with CERCLA §311(c), all awards
must be coordinated with the Secretary of HHS. While the statute requires the Agency to
coordinate its research with HHS to avoid duplication of effort, the statute does not require that
each award must be coordinated with HHS. As indicated in the attached response from OSWER,
they will undertake additional efforts to better coordinate their CERCLA §311(c) research with
HHS.
CERCLA SS 311(b)(3) and (b)(9)A)
In an addendum to the statutory authority report, the OIG questioned whether CERCLA §§
311(b)(3) and (9) authorize grants for Brownfields Job Training and Development Demonstration
Pilots. CERCLA § 311(b)(3) provides:
In carrying out the program, the Administrator is authorized to enter into contracts
and cooperative agreements with, and make grants to, persons, public entities, and
nonprofit private entities which are exempt from tax under section 501(c)(3) of Title 26.
The Administrator shall, to the extent possible, enter into appropriate cost sharing
arrangements under this subsection.
CERCLA §311 (b)(9) provides:
The Administrator is authorized and directed to carry out, through the Office of
Technology Demonstration, a program of training and an evaluation of training needs for
each of the following:
(A)	Training in the procedures for the handling and removal of hazardous
substances for employees who handle hazardous substances.
(B)	Training in the management of facilities at which hazardous substances are
located and in the evaluation of the hazards to human health presented by such
facilities for State and local health and environment agency personnel.
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CERCLA §31 l(b)(10) provides:
For the purposes of this subsection, the term "alternative or innovative treatment
technologies" means those technologies, including proprietary or patented methods, which
permanently alter the composition of hazardous waste through chemical, biological, or
physical means so as to significantly reduce the toxicity, mobility, or volume (or any
combination thereof) of the hazardous waste or contaminated materials being treated. The
term also includes technologies that characterize or assess the extent of contamination, the
chemical and physical character of the contaminants, and the stresses imposed by the
contaminants on complex ecosystems at sites.
The OIG considered an OGC memorandum of May 29, 1997, in which OGC concluded
that §311 (b)(9) authorizes EPA to conduct a training program not limited to training in
alternative and innovative technologies and to make grants for that purpose under §311(b)(3).
The OIG disagreed with that conclusion, maintaining that the better interpretation of CERCLA
§§311(b)(3) and (b)(9) is that they authorize the Agency to make grants for training but only
insofar as the training is related to alternative or innovative treatment technologies. The
Brownfields Training and Development Pilots, according to the OIG, "have nothing to do with
alternative or innovative technologies and are not targeted at the audience (personnel handling
hazardous waste and/or managing hazardous waste facilities) that Congress contemplated when it
passed §311(b)(9)." The OIG believes that EPA is only authorized to make grants for training
"related to alternative or innovative treatment technologies, i.e., training intended to acquaint
personnel handling hazardous waste and/or managing hazardous waste facilities with changed
procedures wrought by alternative or innovative treatment technologies." Subsequently, in a
meeting attended by the OIG, OGC, and OSWER, it became clear that the OIG also believes that
the training programs funded by grants under CERCLA §§311(b)(3) and (9) can only be for
individuals already employed in handling hazardous substances at the time they receive the
training.
Eligible Training Activities
As a result of the OIG memo, OGC has reevaluated its interpretation of CERCLA §§
311(b)(3) and (9) and has identified what it now believes is a more defensible interpretation.
OGC does not believe that the following interpretation of the statute is the only one possible;
other broader interpretations could also be defended. Nonetheless, OGC will, as a prudential
matter, encourage programs to adhere to its new interpretation.
The context in which alternative or innovative technologies are implemented — hazardous
waste site cleanups — is the same context in which non-alternative or innovative treatment
technologies are used. Consequently, if the training authorized by §311(b)(9) were limited to
training in skills that are only used in the implementation of alternative or innovative treatment
technologies, then only a very limited range of skills could be taught to trainees. Such a narrow
interpretation of §311(b)(9) would be difficult to defend particularly because §311(b)(9) does not
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make any reference to a requirement that authorized activities be limited to training in alternative
or innovative treatment technologies and the plain language of §311(b)(9) authorizes training in a
much broader range of activities — "the handling and removal of hazardous substances."
Moreover, there is nothing in the legislative history that suggests that Congress intended the
training to be limited to training in skills that have an exclusive relationship to alternative or
innovative treatment technologies.
Therefore, OGC interprets CERCLA §§311(b)(3) and (b)(9)(A) to authorize grants for
training in "the handling and removal of hazardous substances" which bears a relationship to the
use of alternative or innovative treatment technologies in the context of a cleanup. Under this
interpretation, grantees could teach trainees skills that would be applicable both to cleanups
employing an alternative or innovative treatment technology and to cleanups employing non-
alternative or innovative treatment technology. For example, training programs could teach the
following skills that are needed to carry out alternative/innovative bioremediation of
contaminants for either on- or off-site treatment of contaminated soils: excavation skills for
removing contaminated soils to the treatment area, use of heavy equipment skills for turning of
contaminated soils to ensure bioremediation occurs, and monitoring skills to determine levels of
toxic materials. These same skills would be useful in non-alternative or innovative treatment
technologies.
Accordingly, in awarding training grants under CERCLA §§311(b)(3) and (b)(9), the
program office would have to determine that the training activities could be usefully applied to a
cleanup employing an alternative or innovative technology. The determination would be
documented in the decision memorandum associated with the assistance award. In addition, a
term and condition would be included in each assistance agreement so that the grantee would be
adequately informed of this limitation on the types of activities for which training could be
provided. Both the decision memo and the assistance agreement would include a statement or
condition such as:
The training provided by the recipient must be training in the handling and removal of
hazardous substances related to the implementation of alternative or innovative
treatment technologies as defined in section 31 l(b)(10) of CERCLA. The recipient
may teach trainees skills that are relevant to the implementation of both alternative or
innovative treatment technologies and non-alternative or innovative treatment
technologies.
Eligible Trainees
In its memorandum, the OIG does not discuss the issue of eligible trainees. In a
subsequent meeting, however, the OIG asserted that the training authorized under §311(b)(9)
may only be provided to individuals already employed in the field at the time they receive the
training.
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The Agency disagrees. CERCLA §311(b)(9) authorizes training "for employees who
handle hazardous substances." There is nothing in §311(b)(9), however, that requires that
trainees must be currently employed in handling hazardous substances before they receive training
in the handling and removal of hazardous substances. The requirement that the training be "for
employees" is satisfied if the training is provided for the purpose of training individuals to become
employed in the field of handling hazardous substances. This is consistent with one of the goals
Congress sought to accomplish by enacting §311 of CERCLA: "to increase ... the cadre of
appropriately trained personnel." Congressional Record, September 16, 1985; reprinted in
Congressional Research Service, A Legislative History of the Superfund Amendments and
Reauthorization Act of 1986, at 1118 (1990)(emphasis added).
Awards Made Under TSCA
TSCA SI0(a)
The OIG objects to three awards made under TSCA § 10(a) to support training and public
outreach activities, two of which involve environmental justice initiatives. TSCA § 10(a)
authorizes the award of grants for "research, development and monitoring" as is necessary to
carry out the purposes of TSCA. The OIG objects that training and public outreach are not
research, development, or monitoring.
The Agency interprets the term "development" to include many training and public outreach
activities. In the absence of a statutory definition or any legislative history regarding the term, the
Agency has adopted a permissible interpretation that is consistent with the dictionary definition of
the term. Included within that definition are activities that expand the capability or capacity of an
individual or an organization. Training and outreach activities expand the capability and capacity
of individuals by broadening their knowledge base and thus the Agency has determined that they
are activities encompassed within the term "development." (As under CERCLA §311(c),
"environmental justice activities" may or may not be eligible, depending on the specific activities.)
In support of its objection, the OIG states that the only training authorized in TSCA §10 is
the training for federal laboratory and technical personnel authorized by TSCA § 10(f). This
provision requires EPA to train and facilitate the training of Federal workers, an activity directly
benefitting the Federal government and one properly funded through a contract. This is a
separate, distinct requirement that is unrelated to the Agency's grant-making authority under
TSCA. The requirement that the Agency train its own personnel does not limit its authority to
provide grants to support other types of development, including training, under TSCA § 10(a).
With regard to the TSCA § 10(a) requirement for consultation with HHS and other
agencies, as indicated in the attached OPPTS response, although some areas of activity have
diminished, others have expanded and OPPTS continues to consult and coordinate its activities
with HHS and other Federal agencies.
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TSCA S28CaN>
The OIG objected to two awards made under TSCA §28(a), which authorizes grants to
States for the "establishment and operation of programs to prevent or eliminate unreasonable risks
within the States to health or the environment which are associated with a chemical substance or
mixture and with respect to which the Administrator is unable or is not likely to take action under
[TSCA] for their prevention or elimination." The OIG objects that the grantees' work plans did
not establish that the States will address chemicals with respect to which EPA is unable or
unlikely to take action.
However, the plain language of the statute does not require a grantee to affirmatively
demonstrate in its work plan that the Administrator is unable or unlikely to take action. In most
cases, the grantee cannot be expected to know whether the Agency is unable or unlikely to
address a particular risk. The Agency interprets the statute as requiring the grant program to be
administered in a manner that complements, but avoids duplication of, Federal action. Under this
interpretation, EPA does not award grants to address risks that the Agency expects to address
itself. However, given the standard in the statute — "not likely to take action" — there is a
possibility that changed conditions might result in a decision by the Agency to take an action in
the future with regard to a particular risk, even though at the time of the award it did not appear
likely. Furthermore, there is no indication in the Draft Report that at the time of the questioned
awards, or subsequently, that the particular risks addressed in the grants were or were likely to
become the subject of Federal action. For these reasons, we disagree with the OIG's position.
The Agency concurs that the proper authority for providing grants to States to develop and
implement CAA §112(r) programs is CAA §122(1)(4).
Awards Made Under FIFRA
FTFRA S20CaN>
The OIG objects to the funding of what it terms "training" and the "assessment of training
programs" under FIFRA § 20 which authorizes grants for research necessary to carry out the
purposes of FIFRA and for research into integrated pest management. The agency concurs that
the term "research" generally does not include training. However, as discussed above with regard
to CERCLA §311(c), the term is not restricted to "bench science" and may be carried out through
a variety of methodologies, including workshops and conferences. Furthermore, with regard to
the specific activities questioned by the OIG, the Agency believes that research on and the
evaluation of a training program are types of research and thus are within the scope of the
authority.
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FTFRA S23(a)
The Draft Report questions five awards made under FIFRA §23(a) because the OIG
believes they are "neither enforcement activities nor applicator training," but, instead, research
authorized under FIFRA §20. FIFRA §23 (a) authorizes cooperative agreements with States and
Tribes:
(1)	to delegate to any State or Indian tribe the authority to cooperate in the
enforcement of this subchapter through the use of its personnel or facilities, to train
personnel of the State or Indian tribe to cooperate in the enforcement of this
subchapter, and to assist States and Indian tribes in implementing cooperative
enforcement programs through grants-in-aid; and
(2)	to assist States in developing and administering State programs, and Indian tribes
that enter into cooperative agreements, to train and certify applicators consistent
with the standards the Administrator prescribes.
This provision authorizes assistance awards for a comprehensive enforcement program. The
Agency has interpreted this broad authority reasonably to include a wide variety of activities,
including those that when accomplished would preclude the need to take additional enforcement
actions. However, consistent with the OIG's recommendation, the Agency has requested in the
President's Fiscal Year 1999 Budget Request enactment of the following clarifying language:
"Provided further, That beginning in fiscal year 1999 and thereafter, pesticide program
implementation grants under section 23(a)(1) of the Federal Insecticide, Fungicide and
Rodenticide Act, as amended, shall be available for pesticide program development and
implementation, including enforcement and compliance activities."
Awards Made Tinder CAA §103. CWA §104. and SWDA §8001
Although not addressed in the text of the Draft Report, Appendix A indicates the OIG also
objects to an award to the Global Environment and Trade Study for research on environmental
regulation and competitiveness, eco-labeling, use of trade measures in environmental treaties and
the environmental impacts of regional trade agreements. The OIG objects on the grounds that the
grant authorities cited, CAA §103, CWA §104, and SWDA
§8001, authorize only what the OIG terms "scientific" research and not what it terms "socio-
economic" research.
As discussed above, these statutory provisions do not require, and the Agency does not
interpret, the term "research" to be confined to the "natural" sciences. Furthermore, as the Draft
Report acknowledges, these three statutes are so broadly worded that they authorize many types
of activities, not just research, and certainly not just "scientific" research. For example, §104 of
the Clean Water Act authorizes grants to "conduct and promote the coordination and acceleration
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of, research, investigations, experiments, training, demonstrations, surveys, and studies relating to
the causes, effects, extent, prevention, reduction, and elimination of pollution." Such activities
are not limited to the "natural" sciences, but may include a variety of socio-economic,
institutional, and public policy issues that relate to the "causes, effects, extent, prevention,
reduction and elimination of pollution." A similar enumeration of authorized activities under
CAA §103 includes the following phrase: "...studies relating to the causes, effects (including
health and welfare effects! extent, prevention, and control of air pollution" (emphasis added),
indicating that the activities include, but are not limited to, "scientific", "health effects" research.
TT. RESPONSE TO RECOMMENDATIONS
Recommendation 1 (to Assistant Administrator for OARM):
• Coordinate with the Assistant Administrators for OSWER and OPPTS and the Associate
Administrator for Congressional and Intergovernmental Relations to obtain clear statutory
authority to fund assistance agreements for the types of activities questioned in this report,
i.e., technical assistance, environmental justice, and economic redevelopment studies under
CERCLA; public outreach, training and environmental justice activities under TSCA; and
training and training assessments under FIFRA.
OARM Response:
OARM agrees with this recommendation. We will work with the Program Offices and
OGC to obtain the statutory changes necessary to clarify and expand the existing grant
authorities.
Beginning in 1994, OSWER requested that Administration proposals for Superfund
Reauthorization include a provision which would have clarified the types of activities that could
be funded under CERCLA §311(c). OSWER has continued to seek this clarification through
successive rounds of proposed legislation and they agree to continue to work with OARM and
OCIR toward this end.
In addition, as indicated previously, in the President's Fiscal Year 1999 Budget Request
EPA requested enactment of the following clarifying language:
"Provided further, that, beginning in fiscal year 1999 and thereafter, pesticide
program implementation grants under section 23(a)(1) of the Federal Insecticide, Fungicide
and Rodenticide Act, as amended, shall be available for pesticide program development and
implementation, including enforcement and compliance activities."
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Recommendation 2 fto Assistant Administrator for OARM):
•	Clarify existing policies and guidance. EPA Order 5730.1 requires program offices to
designate the program element, statutory authority, and delegation of authority in the
decision memorandum. Rather than merely citing a statute, the program offices should be
required to briefly explain how the proposed work relates to the authorizing statute. Grants
Management Offices should return any funding package missing this information.
OARM Response:
We agree with the OIG recommendation. We will modify EPA Order 5730.1 to include
language that specifically requires that all future funding packages include an explanation of how
the proposed grant award relates to the authorizing statute. As a component of the current
assistance funding packages, the decision memorandum must cite the statutory authority which
authorizes proposed grant activities. The Grants Specialist reviews the decision memorandum to
ensure the proposed project objectives are consistent with the intent of the statutory authority. In
the future we will require the Program Offices to provide written clarification of how the award
relates to the statutory authority and, if necessary, forward it to OGC for their review and
opinion.
OPPTS has already taken action to implement this recommendation. In December, 1997,
they issued guidance to all their grants project officers requiring detailed information in grant
decision memoranda. They have also established a single point of contact within each Office to
review all grants and ensure the proposed activities are authorized under EPA's grant authorities.
Recommendation 3 fto Assistant Administrator for OARM):
•	Work with Senior Resource Officials [SRO] to issue interim guidance to clarify the types of
activities that their respective program offices will and will not fund, including examples of
the types of projects the Agency should not fund.
OARM Response:
OARM agrees with the recommendation and will work with OSWER and OPPTS to
develop guidance to clarify the types of activities that the Agency will and will not fund under the
grant authorities.
In addition, working in close coordination with each of their cooperative agreement
recipients, OSPS will develop an additional term and condition for all cooperative agreements,
which will require recipients to establish administrative controls to ensure that all CERCLA
§311(c) funds are spent only to conduct and disseminate research (including scientific, socio-
economic, institutional and public policy research) relating to the effects and risks of hazardous
substances and detection of hazardous substances in the environment.
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Recommendation 4 fto Assistant Administrator for OARM:
•	Require the Grants Administration Division, in coordination with Senior Resource Officials,
to incorporate into project officers and managers training, information on the types of
awards the Agency should, and should not, fund.
OARM Response
We agree that grants training material should be modified to incorporate specific
information about grant authorities. We will add these changes to the project officer training
classes and to the one-day project officer refresher course which will begin next year. We will
also include the modified EPA Order 5730.1 as part of the handout materials. OPPTS and
OSWER training will also be tailored to emphasize issues specific to their statutory authorities.
Recommendation to the Assistant Administrator for OSWER:
•	We recommend that the Assistant Administrator for OSWER coordinate all CERCLA
311(c) assistance awards with the Secretary of Health and Human Services [HHS], as
required by the statute.
OSWER Response:
OSWER has been unable to confirm the existence of the "advisory council" referred to in
CERCLA §311(c). Nonetheless, in recognition of the importance of avoiding duplication of
effort in our research activities, OSPS will work with the SRO for OSWER to establish better
coordination of our CERCLA §311(c) research efforts with HHS. This coordination may occur
through OSWER's existing relationships with the National Institute for Environmental Health
Sciences (NIEHS) and the Agency for Toxic Substances and Disease Registry (ATSDR), whose
activities we already evaluate through the annual Superfund budget formulation process, or we
may choose to coordinate through other means.
Thank you again for providing us with the opportunity to comment on the Draft Report. If
you or your staff have any questions or need additional information, please contact Bruce
Feldman at 202-564-5325.
Attachments
cc: Steve Pressman
Jim Drummond
Steve Swartz
Andrew Kreider
40	Report No. 8100209
Susan Lee
Leslie Darman
Susan Wayland
Linda Garczynski

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June 5, 1998
MEMORANDUM
SUBJECT: OSPS Response to OIG Draft Audit Report No. E3AMF8-11-0008
Statutory Authority for EPA Assistance Agreements
FROM:
Linda Garczynski, Director /s/ (Ann McDonough, for)
Outreach and Special Projects Staff
TO:
Gary Katz, Director
Grants Administration Division
At an April 23, 1998 meeting with your staff, the Outreach and Special Projects Staff
(OSPS) in the Office of Solid Waste and Emergency Response (OSWER) was asked to provide
comments on the subject OIG draft audit report. It is our understanding that the Office of
General Counsel (OGC) will provide a summary response to the legal issues raised in the draft
audit report. For this reason, our comments will address only the programmatic issues discussed
therein.
It should be noted, however, that OSPS agrees with OGC's interpretation of CERCLA
Sec. 311(c). We have made a concerted effort to ensure proper adherence to the provisions of
the statute, as interpreted by the Agency, through close working relationships with our
cooperative agreement recipients and by including OGC review and concurrence as an integral
part of our grant application review process.
Our responses to specific recommendations, as well as general comments, follow below:
Recommendation 1 (to Assistant Administrator for OARM):
• Coordinate with the Assistant Administrators for OSWER and OPPE and the Associate
Administrator for Congressional and Intergovernmental Relations to obtain clear statutory
authority to fund assistance agreements for the types of activities questioned in this report,
i.e., technical assistance, environmental justice, and economic redevelopment studies under
CERCLA; public outreach, training and environmental justice activities under TSCA; and
training and training assessments under FIFRA.
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OSPS Response:
As early as 1994, OSWER requested that Administration proposals for Superfund
reauthorization include a provision which would have clarified the types of activities that could be
funded under CERCLA Sec. 311(c). We have continued to seek this clarification through
successive rounds of proposed legislation, and we agree to continue to work with OARM and
OCIR toward this end.
Recommendation 3 fto Assistant Administrator for OARM):
•	Work with Senior Resource Officials [SRO] to issue interim guidance to clarify the types of
activities that their respective program offices will and will not fund, including examples of
the types of projects the Agency should not fund.
OSPS Response:
OSPS will work with the SRO for OSWER, in coordination with OARM and OGC, to
develop interim guidance to clarify the types of activities that our program office will and will not
fund.
Working in close coordination with each of our cooperative agreement recipients, we will
also develop an additional term and condition for all current and future cooperative agreements,
which will require recipients to establish administrative controls to ensure that all CERCLA Sec.
311(c) funds are spent only to conduct and disseminate research (including scientific, socio-
economic, institutional and public policy research) relating to the effects and risks of hazardous
substances and detection of hazardous substances in the environment.
Recommendation to the Assistant Administrator for OSWER:
•	We recommend that the Assistant Administrator for OSWER coordinate all CERCLA
311(c) assistance awards with the Secretary of Health and Human Services [HHS], as
required by the statute.
OSPS Response:
OSPS has been unable to confirm the existence of the "advisory council" referred to in
CERCLA Sec. 311(c). Nonetheless, in recognition of the importance of avoiding duplication of
effort in our research activities, OSPS will work with the SRO for OSWER to establish better
coordination of our CERCLA Sec. 311(c) research efforts with HHS. This coordination may
occur through our existing relationships with the National Institute for Environmental Health
Sciences (NIEHS) and the Agency for Toxic Substances and Disease Registry (ATSDR), whose
activities we already evaluate through the annual Superfund budget formulation process, or we
may choose to coordinate through other means.
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General Comments on Appendix A:
We have chosen not to respond on a point-by-point basis to OIG's descriptions of
CERCLA Sec. 311(c) grants and cooperative agreements as they are listed in Appendix A. We
wish to note, however, that Appendix A as currently written may inadvertently encourage a
misinterpretation of the purposes and content of each of our cooperative agreements. In most
cases, the activities described by OIG relating to CERCLA Sec. 311(c) cooperative agreements
managed by OSPS have been taken out of context, and represent only a portion of the work
included in the original proposals and current agreements.
For example, the Institute for Responsible Management (IRM) is funded under CERCLA
Sec. 311(c) to research and disseminate information about the social, economic, and other barriers
to the detection, assessment, evaluation, and cleanup of hazardous substances at Brownfield sites,
with a specific focus on issues encountered by communities with active Brownfields assessment
and cleanup projects. This research will be disseminated in a number of ways, including the
development of a research book containing lessons learned from these communities' efforts to
address their Brownfields problems. These activities, which represent the largest portion of
IRM's work, are not accounted for in the OIG description contained in Appendix A.
Similarly, the activities listed for the U.S. Conference of Mayors (USCM), including the
National Brownfields Roundtable, the National Brownfield Redevelopment Data Base, research
into the establishment of a peer-to-peer network of local officials, and the bi-monthly newsletters,
all fit into the scope of USCM's broader agenda for research and research dissemination. The
OIG description of these activities is presented without any explanation of the research that
USCM must conduct in order to complete them, and as such may lead to misinterpretations of the
true nature of the agreement.
These represent just two examples of what we believe to be incomplete descriptions of the
true content of our cooperative agreements. We believe that the activities undertaken by our
cooperative agreement recipients are allowable according to the statutory interpretation given by
OGC, and we will continue to work to ensure that all CERCLA Sec. 311(c) research activities
adhere to this interpretation.
Thank you for your assistance in coordinating a response to the subject draft audit report.
If you have any questions, please have your staff contact Andrew Kreider at 260-9192.
cc: Tim Fields
David Sutton
Steve Pressman
Andrew Kreider
Ellen O'Boyle
Mike Shapiro
Ken Adams
Jim Drummond
Liz Harris
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C., 20460
Final Copy. Signed on June 3. 1998
OFFICE OF
PREVENTION, PESTICIDES AND
TOXIC SUBSTANCES
MEMORANDUM
SUBJECT: OPPTS Comments on Draft Audit Report on Statutory Authority for EPA
Assistance Agreements
FROM: Susan H. Wayland
Deputy Assistant Administrator
TO:
Gary Katz
Director, Grants Administration Division (3903R)
Thank you for the opportunity to provide comments to the Draft Audit Report on
Statutory Authority for EPA Assistance Agreements. This audit has raised some very important
issues. Although our interpretation of statutory authority allows for a wider scope of assistance
activity, we agree with the audits recommendations. Positive actions in those areas identified will
help ensure our assistance program is conducted properly. We would also like you to include a
message in your comments to the IG, showing our appreciation for their professional attitude and
thoughtful approach in alerting us to their concerns.
We recommend your office disagree with most of the audit's findings on questionable
grants. Based upon OGC guidance, which establishes a broader interpretation of statutory
authorities, we believe most of our grants were appropriate. OGC's comments on statutory
authority interpretation, which are concurrently being provided to your office, should provide a
cornerstone for your response in this area. Our comments will address three other areas
including; a) Comments to individual awards identified as questionable (includes
acknowledgment or disagreement to IG position, b) Comments on coordinating actions with other
Federal Agencies, and 3) Comments to IG Recommendations.
Comments to specific awards identified as questionable:
Awards under FIFRA Section 20 - Research and Monitoring. Under 20(a) OPP awards
grants with other Federal Agencies, Universities and others to undertake research as necessary to
carry out the purposes of the Act, and to conduct research into integrated pest management in
coordination with Agriculture.
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CX-820822- National Foundation for IPM Education - We believe this grant is research
and appropriate. The purpose of this Co-op is to research programs to increase the use of
integrated pest management in U.S. Agriculture. Although IPM is a long-standing system
that EPA believes can reduce pesticide risks, it was not widely adopted when this co-op
was started. As a result of the 1992 National IPM Forum, co-sponsored by EPA, it was
determined that applied research were needed to increase IPM implementation. This co-
op was established to work toward that goal. In its final technical report, the co-op stated
that "at the end of this five-year agreement, we are at the point where IPM has become the
accepted way of reducing environmental risks and minimizing risks from pesticide use".
CX-825997 - Native Ecology Initiative - We believe this grant is research and appropriate.
The purpose of this grant is to help Indian Tribes develop groundwater management
plans. OPP has never done this specifically for the tribes before. The Native Ecology
Initiative must research an appropriate training approach necessary to develop a tribal
educational framework that recognizes and incorporates tribal cultural perspectives on
environment and land stewardship. They must also research available data sources,
current studies to develop training materials and provide assistance to Tribes in developing
their groundwater management plans.
CR-825080 - Yakima Valley Farm workers Clinic - We believe this grant is research and
appropriate. This cooperative agreement will expire in September, 1998. The purpose of
the agreement is to research the pesticide safety training programs and materials that are
used for agricultural workers on farms, nurseries, greenhouses, and forests. The Clinic
conducted research about programs and materials designed to help Farm workers reduce
their risks from pesticide hazards. As part of this project, no training was performed.
Research was conducted through analysis of data gathered from direct interviews and
focus groups of growers, farm worker organizations, state and local farm worker service
agencies and other members of the agricultural community across the country. Research
also included gathering, analyzing and assessing national data and information about
studies, tools and mechanisms to reach Farm workers about pesticide safety.
CX-825849 - Association of Farm worker Opportunity Programs (AFOP) - We believe
this grant is research and appropriate. The purpose of this agreement is to research and
assess the effectiveness of the National Americorps pesticide safety environmental
education program. They are not providing the training. They are assessing a national
program to help Farm workers and agricultural communities to reduce risks from
occupational and environmental exposure to pesticides. This cooperative agreement is
designed to conduct research and make observations about the effectiveness of risk
reduction measures utilized in the program. Researching the needs, effectiveness of
occupational and environmental risk reduction measures will help the agricultural
community develop a strategy for protecting the health and safety of agricultural workers
and rural communities from pesticide hazards.
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FIFRA Section 23 - State Cooperation, Aid, and Training. Under 23(a)(1) OPP awards
grants to States and Indian Tribes in order to cooperate in the enforcement of the Act, and to
assist States and Indian Tribes in implementing cooperative enforcement programs; and under
Section 23(a)(2), OPP awards grants to States and Indian Tribes in order to develop and
administer certification and training programs. Under the C&T awards, there is a 50% match of
funds.
1)	E999393 - California Department of Pesticide Regulations - OPP transferred funds to
Region IX in order for the Region to award a grant with the California Indian Basket
weavers Association. The purpose of the grant is for 1) community meetings on herbicide
problems and 2) residue study on 3 or 4 herbicides in plants. This project is commonly
called California Basket Weavers Association. When this grant was awarded, the region
decided that they could not use FIFRA Section 20 as their authority. We are researching
the basis for this decision and will provide additional information at a later date.
2)	MM998750 - Confederated Salish and Kootenai Tribes - OPP transferred funds to the
Region in order for the Region to award a grant with the Confederated Salish and
Kootenai Tribes. When this grant was awarded, the region decided that they could not
use FIFRA Section 20 as their authority. We are researching the basis for this decision
and will provide additional information at a later date.
We have researched the next three grants and going back as far as FY 94, OPP does not have a
record of awarding these grants. We are continuing to research these grants and will provide
information later.
3)	X985497 - University of Wisconsin Department of Entomology
4)	X985735 - Purdue University - Developing pesticide applicator training software
5)	X985736 - Purdue University Foundation
Awards under TSCA Section 10
1)	CX825486 - American Institute for Pollution Prevention - Under this grant, the awardee
was to develop a system that would identify pollution prevention methodologies that
worked at an industry group facility, develop these into examples of pollution prevention,
and present them at "Morning Dialogue Sessions" where they might be used by industry
participants. In our opinion, the primary objective of these activities is clearly
developmental.
2)	X824529 - Missoula Housing Authority and X824610 - City of Memphis - These are
Environmental Justice Cooperative Agreements. Their scope of work covers activities
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which develop a lead poisoning prevention program and monitoring activities in the areas
of home hazard assessment and blood lead level screening. We believe these are
development type of actions and are appropriate grants under TSCA Section 10.
Awards under TSCA Section 28
1)	CX825670 - Nevada Dept. of Conservation and Natural Resources and CX825684 -
Rhode Island Department of Environmental Management - We agree with the IG's
statement that we used the wrong authority for these grants and we should have used
CAA Section 112(1) instead of CAA Section 112(r). We will use the correct authority in
the future.
According to TSCA Section 28, these type of grants are made to states for activities
associated with chemical substances or mixtures for which the "Administrator is unable or
is not likely to take action". We disagree with the IG statement that our work plan did not
state that activities would address chemicals to which EPA is unable or unlikely to take
action on. The Statute does not require for an "affirmative finding" up front.
2)	X822739 - OPPT agrees this is not an appropriate award
Comments on coordinating actions with other Federal Agencies
The IG's Draft Audit cites "...the requirement the EPA conduct research 'in consultation
and coordination with the Secretary of Health and Human Services and other heads of appropriate
departments and agencies,'". The report states that "Since 1978, interaction between EPA and
DHHS has diminished significantly, and is now limited to OPPTS' lead program (which also
involves the Center for Disease Control-part of DHHS), and the Toxic Release Inventory data
base, which EPA makes available to the public through a system maintained by the National
Library of Medicine (also part of NIH/DHHS)."
The Inspector Generals Office is correct in pointing out that interaction between EPA and
DHHS has diminished significantly since TSCA was passed. However, OPPT has maintained
open lines of communication with DHHS as well as instituting new lines of communication with
other Departments and Agencies as our work has changed over time and the need for new
consultation and coordination has arisen. We believe that TSCA was intended to be an evolving
Act, not a static Act.
OPPTS does continue to interact with DHHS through the Interagency Testing Committee.
This Committee was formed specifically at the direction of Congress, for priority testing of
chemical substances under TSCA. OPPTS's Administrator, Dr. Goldman, also frequently talks
to and works closely with the DHHS secretary on major health initiatives for children.
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OPPTS also coordinates with many other federal agencies through committees and
programs such as: The ONE (OSHA,NIOSH,EPA) Committee; the TAC (Toxics and Consumer
Product Safety Commission); the CIAQ (an Interagency Committee on Indoor Air Quality which
includes DHHS); the Green Chemistry program with works with the National Science
Foundation, MUST, and DOE; the Partnership for Environmental Technology and Education
(PETE) program works with NSF, DOE, Canada, and Mexico; the ACE (Agriculture in Concert
with the Environment) program is a cooperative effort with US Dept. Of Agriculture; the EP3
program (Environmental Pollution Prevention Project) works with USAID; our PPD division
works with the FOSTTA Pollution Prevention Forum, a group made up of 12 Senior State
Officials to coordinate pollution prevention and reduction activities and programs throughout the
country; and we work with the National Pollution Prevention Round table to coordinate pollution
prevention programs at the national, state and local levels.
This is just a brief list of Departments and Agencies that OPPT maintains contact with and
shares information with about our constantly changing programs and operations. If desired, a
much more extensive list can be compiled and forwarded.
Comments to IG Recommendations.
Recommendation 1.
OPPTS agrees with this recommendation. We have submitted language with our FY 99
State and Tribal Assistance Grants (STAG) appropriation, that will provide the following wording
to clarify FIFRA - Section 23:
"Provided further, that, beginning in fiscal year 1999 and thereafter, pesticide program
implementation grants under section 23(a)(1) of the Federal Insecticide, Fungicide and
Rodenticide Act, as amended, shall be available for pesticide program development and
implementation, including enforcement and compliance activities."
We further recommend the Comptroller's Office, GAD, and the Program Office's meet to
discuss an Agency approach to the question of seeking statutory clarification.
Recommendation 2.
OPPTS has already taken action to implement this recommendation within our AA'ship.
In December 97, after information about this audit was becoming available, we issued guidance to
all our grants project officers requiring detailed information in grant decision memorandums. We
have established a single point of contact within each Office to review all grants and ensure their
quality. In addition, all grants in excess of 250K are reviewed at the AA's office and approved by
the SRO.
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Recommendation 3.
OPPTS agrees with recommendation 3. We have already met with GAD and OGC to
discuss this issue. We will be working with these offices to develop this guidance in accordance
with our understanding of the statutory authority..
Recommendation 4.
We agree grants training material should be modified to incorporate information about
statutory authority. OPPTS training will also be tailored to emphasize issues specific to our
statutory authorities.
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APPENDIX C
Distribution
Office of Inspector General
Acting Inspector General
Assistant Inspector General for Audit
Deputy Assistant Inspector General for Internal Audits
Divisional Inspectors General
EPA Headquarters Offices
Agency Followup Official (2710)
Agency Followup Coordinator (2724)
Acting Assistant Administrator for Solid Waste and Emergency Response (5101)
Assistant Administrator for Prevention, Pesticides and Toxic Substances (7101)
Associate Administrator for Communications, Education and Public Affairs (1701)
Associate Administrator for Congressional and Intergovernmental Relations (1301)
Associate General Counsel, Finance and Operations Law Office (2377)
Comptroller (2731)
Director, Office of Grants and Debarment (3901R)
Senior Resource Officials and Audit Liaisons:
Office of the Administrator
Office of Administration and Resources Management
Office of Air and Radiation
Office of Enforcement and Compliance Assurance
Office of International Activities
Office of Policy, Planning and Evaluation
Office of Prevention, Pesticides and Toxic Substances
Office of Research and Development
Office of Solid Waste and Emergency Response
Office of Water
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