B-205704.OM, FEB 24, 1982

B-205704.OM, FEB 24, 1982

SUBJECT: QUESTIONS CONCERNING SUPERFUND LEGISLATION (CODE 089176; FILE B-205704)

GROUP DIRECTOR, CED - VICTOR S. REZENDES:

INCIDENT TO YOUR REVIEW OF EPA'S IMPLEMENTATION OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (1980 ACT), 42 U.S.C. SEC. 9601 ET SEQ., ALSO REFERRED TO AS THE SUPERFUND LEGISLATION, WHICH SET UP A FUND FOR HAZARDOUS WASTE CLEANUP, YOU ASKED A NUMBER OF QUESTIONS. YOUR QUESTIONS, AS WE REPHRASED THEM, FOLLOW WITH BRIEF ANSWERS.

QUESTION 1: DID CONGRESS INTEND, UNDER SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), THAT THE WORST KNOWN HAZARDOUS WASTE SITES IN THE NATION, REGARDLESS OF THE STATE IN WHICH LOCATED, SHOULD RECEIVE SUPERFUND ATTENTION, OR DID CONGRESS INTEND THAT AT LEAST THE TOP PRIORITY SITE IN EACH STATE RECEIVE THE ATTENTION?

ANSWER: CONGRESS INTENDED THAT THE PRESIDENT DETERMINE THE ORDER OF PRIORITIES FOR SUPERFUND ATTENTION, BUT THAT "TO THE EXTENT PRACTICABLE" AT LEAST ONE FACILITY FROM EACH STATE BE AMONG THE TOP PRIORITIES TO RECEIVE SUPERFUND ATTENTION.

QUESTION 2: DID CONGRESS INTEND, UNDER THE 1980 ACT, THAT SITES BE CLEANED UP BEFORE ANY ATTEMPTS WERE MADE TO RECOVER CLEANUP COSTS?

ANSWER: CONGRESS INTENDED QUICK CLEANUP AND ESTABLISHED THE FUND IN THE 1980 ACT TO ALLOW THE CLEANUP OF HAZARDOUS WASTE SITES TO PROCEED BEFORE LIABILITY WAS ESTABLISHED. HOWEVER, CONGRESS ALSO RECOGNIZED THAT CERTAIN FACTORS HAD TO BE CONSIDERED BEFORE HASTILY STARTING CLEANUP ACTIVITIES.

QUESTION 3: UNDER SECTION 105 OF THE 1980 ACT, 42 U.S.C. SEC. 9605, WAS THE PRESIDENT REQUIRED TO REVISE AND REPUBLISH THE NATIONAL CONTINGENCY PLAN FOR THE REMOVAL OF OIL AND HAZARDOUS SUBSTANCES BY JUNE 9, 1981?

ANSWER: YES.

QUESTION 4: UNDER SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), WAS THE PRESIDENT REQUIRED TO LIST NATIONAL PRIORITIES AMONG THE KNOWN RELEASES OR THREATENED RELEASES THROUGHOUT THE UNITED STATES BY JUNE 9, 1981?

ANSWER: YES.

QUESTION 5: UNDER SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), WERE THE STATES REQUIRED TO ESTABLISH AND SUBMIT FOR CONSIDERATION BY THE PRESIDENT PRIORITIES FOR REMEDIAL ACTION AMONG KNOWN RELEASES AND POTENTIAL RELEASES IN THE STATES BY DECEMBER 10, 1981?

ANSWER: YES.

QUESTION 6: MAY THE PRESIDENT IGNORE THE STATES' PRIORITIES IN ESTABLISHING THE NATIONAL LIST OF PRIORITIES FOR HAZARDOUS WASTE CLEANUP?

ANSWER: NO. THE PRESIDENT IS SPECIFICALLY DIRECTED TO "CONSIDER" THE STATES' PRIORITIES IN ESTABLISHING THE NATIONAL LIST OF PRIORITIES.

QUESTION 7: DOES THE PRESIDENT HAVE TO DESIGNATE AT LEAST 400 OF THE HIGHEST PRIORITY FACILITIES INDIVIDUALLY AND REFER TO THEM AS THE "TOP PRIORITY AMONG KNOWN RESPONSE TARGETS"? COULD HE DESIGNATE MORE THAN 400?

ANSWER: "TO THE EXTENT PRACTICABLE" THE PRESIDENT MUST DESIGNATE " *** AT LEAST FOUR HUNDRED OF THE HIGHEST PRIORITY FACILITIES WHICH SHALL BE DESIGNATED INDIVIDUALLY AND SHALL BE REFERRED TO AS THE 'TOP PRIORITY AMONG KNOWN RESPONSE TARGETS' ***." THERE IS NO REASON WHY THE PRESIDENT COULD NOT DESIGNATE MORE THAN 400 PRIORITIES.

QUESTION 8: MUST THE PRESIDENT INCLUDE AMONG THE 100 HIGHEST PRIORITY FACILITIES AT LEAST ONE FACILITY FROM EACH STATE?

ANSWER: "TO THE EXTENT PRACTICABLE" THE PRESIDENT MUST INCLUDE AT LEAST ONE FACILITY FROM EACH STATE AMONG THE TOP PRIORITIES TO RECEIVE SUPERFUND ATTENTION.

QUESTION 9: WHAT PORTION OF FUTURE MAINTENANCE COSTS OF HAZARDOUS WASTE REMEDIAL CLEANUP ACTION IS A STATE REQUIRED TO BEAR?

ANSWER: THE 1980 ACT MAY BE REASONABLY INTERPRETED EITHER AS REQUIRING A STATE TO PAY 10 PERCENT OF FUTURE MAINTENANCE COSTS OR AS REQUIRING A STATE TO PAY ALL FUTURE MAINTENANCE COSTS.

QUESTION 10: UNDER SECTION 104(C)(3)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(B), WOULD A FACILITY THAT OBTAINED "INTERIM STATUS" UNDER SECTION 3005(E) OF THE SOLID WASTE DISPOSAL ACT, 42 U.S.C. SEC. 6925(E), BE ELIGIBLE TO RECEIVE WASTES THAT REQUIRED OFFSITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION?

ANSWER: YES, "INTERIM STATUS" WOULD QUALIFY A FACILITY TO RECEIVE WASTES THAT REQUIRED OFFSITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION.

QUESTION 11: UNDER SECTION 104(C)(3)(B), OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(B), THERE IS NO DISCUSSION OF ANY SUBTITLE C REQUIREMENTS THAT MUST BE MET IF ON SITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION IS REQUIRED. ARE THERE ANY ON SITE REQUIREMENTS THAT MUST BE MET?

ANSWER: WE ARE AWARE OF NO ON SITE REQUIREMENTS THAT MUST BE MET UNDER SECTION 104(C)(3)(B).

QUESTION 12: UNDER SECTION 104(C)(3)(C)(I) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C)(I), THE STATE IS REQUIRED TO PAY OR ASSURE PAYMENT OF 10 PERCENT OF "THE COSTS OF THE REMEDIAL ACTION." WHAT COSTS REQUIRE STATE PARTICIPATION? IS IT MERELY THE COST OF ACTUALLY CONSTRUCTING THE REMEDIAL ACTION PROJECT OR ARE COSTS OF SUCH THINGS AS SITE INVESTIGATIONS, DESIGN AND ENGINEERING STUDIES, AND FEASIBILITY STUDIES ALSO INCLUDED?

ANSWER: "COSTS OF THE REMEDIAL ACTION" REQUIRING STATE PARTICIPATION REFERS TO ACTIVITIES, SUCH AS CONSTRUCTION, THAT ARE A DIRECT PART OF THE REMEDIAL ACTION. IT DOES NOT INCLUDE SUCH THINGS AS SITE INVESTIGATIONS AND VARIOUS TYPES OF PRE-CONSTRUCTION STUDIES.

QUESTION 13: UNDER SECTION 104(C)(3)(C)(II) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C)(II), COULD A STATE BE REQUIRED TO PAY 100 PERCENT OF THE COSTS OF CLEANING UP HAZARDOUS WASTE AT A SITE OWNED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF?

ANSWER: YES.

QUESTION 14: DOES THE CREDIT GIVEN TO A STATE FOR CERTAIN EXPENSES INCURRED BEFORE THE 1980 ACT APPLY FOR THE SPECIFIC SITE IN QUESTION OR CAN IT BE APPLIED REGARDLESS OF WHICH SITE THE STATE SPENT ITS FUNDS ON?

ANSWER: THE STATE RECEIVES CREDIT ONLY FOR THOSE EXPENSES INCURRED FOR THE SPECIFIC SITE IN QUESTION.

QUESTION 15: CAN MONIES FROM SUPERFUND BE USED TO CLEAN UP A SITE EVEN THOUGH AN ENFORCEMENT ACTION IS PROCEEDING AGAINST A FINANCIALLY VIABLE RESPONSIBLE PARTY? AND IF SO, AT WHAT POINT MAY THE SITE BE CLEANED UP?

ANSWER: THERE IS NOTHING IN THE LAW THAT WOULD PROHIBIT USING MONIES FROM SUPERFUND TO CLEAN UP A SITE WHILE AN ENFORCEMENT ACTION IS PROCEEDING AGAINST A FINANCIALLY VIABLE RESPONSIBLE PARTY. THAT BEING SO, THE SITE MAY BE CLEANED UP AT ANY TIME.

ATTACHED IS A DISCUSSION OF THESE QUESTIONS AND ANSWERS.

ATTACHMENT

QUESTIONS CONCERNING SUPERFUND LEGISLATION

DIGEST:

MEMO ANSWERS QUESTIONS RELATING TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (SUPERFUND LEGISLATION).

QUESTION 1: DID CONGRESS INTEND, UNDER SECTION 105(8)(B) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (1980 ACT), 42 U.S.C. SEC. 9605(8)(B), THAT THE WORST KNOWN HAZARDOUS WASTE SITES IN THE NATION, REGARDLESS OF THE STATE IN WHICH LOCATED, SHOULD RECEIVE SUPERFUND ATTENTION, OR DID CONGRESS INTEND THAT AT LEAST THE TOP PRIORITY SITE IN EACH STATE RECEIVE THE ATTENTION?

ANSWER: CONGRESS INTENDED THAT THE PRESIDENT DETERMINE THE ORDER OF PRIORITIES FOR SUPERFUND ATTENTION, BUT THAT "TO THE EXTENT PRACTICABLE" AT LEAST ONE FACILITY FROM EACH STATE BE AMONG THE TOP PRIORITIES TO RECEIVE SUPERFUND ATTENTION. SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), PROVIDES THAT THE PRESIDENT SHALL ESTABLISH A PRIORITIES LIST OF FACILITIES TO RECEIVE SUPERFUND ATTENTION AND "TO THE EXTENT PRACTICABLE, SHALL INCLUDE AMONG THE 100 HIGHEST PRIORITY FACILITIES AT LEAST ONE SUCH FACILITY FROM EACH STATE WHICH SHALL BE THE FACILITY DESIGNATED BY THE STATE AS PRESENTING THE GREATEST DANGER TO PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT AMONG THE KNOWN FACILITIES IN SUCH STATE."

THUS, UNLESS IT IS FOUND NOT TO BE PRACTICABLE, AT LEAST ONE FACILITY FROM EACH STATE SHOULD BE AMONG THE 100 HIGHEST PRIORITY FACILITIES. EXACTLY WHAT IS MEANT BY "PRACTICABLE" IS NOT CLEAR. THE LEGISLATIVE HISTORY INDICATES ONLY THAT IT IS IMPORTANT BOTH TO CONSIDER STATE PRIORITIES AND TO GIVE ATTENTION TO THE WORST NATIONAL INCIDENTS. SEE S.REP. NO. 96-848, PAGE 59 (1980). WHETHER AND TO WHAT EXTENT IT IS IMPRACTICABLE TO INCLUDE ONE FACILITY FROM EACH STATE AMONG THE 100 HIGHEST PRIORITY FACILITIES IS TO BE DETERMINED BY THE PRESIDENT. SINCE THERE ARE NO SPECIFIC GUIDELINES FOR MAKING THIS DETERMINATION, THE PRESIDENT OR A DELEGATED DECISION MAKER NEED DO NO MORE THAN EXERCISE REASONABLE DISCRETION IN MAKING THE DETERMINATION. IF YOU CHOOSE TO CRITICIZE THE MANNER IN WHICH THIS DISCRETION HAS BEEN EXERCISED, YOU SHOULD BE PREPARED TO SHOW THAT YOUR SUGGESTED COURSE OF ACTION WOULD BE "PRACTICABLE."

QUESTION 2: DID CONGRESS INTEND, UNDER THE 1980 ACT, THAT SITES BE CLEANED UP BEFORE ANY ATTEMPTS WERE MADE TO RECOVER CLEANUP COSTS?

ANSWER: CONGRESS INTENDED QUICK CLEANUP AND ESTABLISHED A FUND IN THE 1980 ACT TO ALLOW THE CLEANUP OF HAZARDOUS WASTE SITES TO PROCEED BEFORE LIABILITY WAS ESTABLISHED. HOWEVER, CONGRESS ALSO RECOGNIZED THAT CERTAIN FACTORS HAD TO BE CONSIDERED BEFORE HASTILY STARTING CLEANUP ACTIVITIES.

THE HAZARDOUS SUBSTANCE RESPONSE TRUST FUND, ESTABLISHED BY SECTION 221 OF THE 1980 ACT, 42 U.S.C. SEC. 9631, MAKES FUNDS AVAILABLE FOR THE CLEANUP OF HAZARDOUS WASTE SITES BEFORE THE QUESTION OF WHO IS RESPONSIBLE HAS BEEN ANSWERED. ONE OF THE REASONS FOR ESTABLISHING THE FUND WAS TO "PROVIDE A MECHANISM FOR RAPID RESPONSE, INCLUDING AN IMMEDIATELY AVAILABLE SOURCE OF FUNDING FOR CLEANUP AND MITIGATION, WHEN HAZARDOUS SUBSTANCES ARE RELEASED INTO THE ENVIRONMENT." S.REP. NO. 96-848, PAGE 12 (1980). FURTHER, THE ACT AUTHORIZES THE PRESIDENT TO ACT NOT ONLY WHEN A HAZARDOUS SUBSTANCE HAS BEEN RELEASED INTO THE ENVIRONMENT, BUT WHEN THERE IS A SUBSTANTIAL THREAT OF SUCH A RELEASE, OR WHEN THERE IS A RELEASE OR SUBSTANTIAL THREAT OF RELEASE INTO THE ENVIRONMENT OF SOMETHING THAT MAY PRESENT IMMINENT AND SUBSTANTIAL DANGER TO PUBLIC HEALTH OR WELFARE. SEE SECTION 104(A) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(A).

ALTHOUGH THE 1980 ACT PROVIDES FOR QUICK ACTION IN RESPONSE TO A HAZARDOUS WASTE RELEASE OR POTENTIAL RELEASE, THE PRESIDENT IS NOT AUTHORIZED TO ACT WHERE HE DETERMINES THAT THE RESPONSIBLE PARTY WILL TAKE APPROPRIATE ACTION. SECTION 104(A) AUTHORIZES THE PRESIDENT TO ACT:

"*** UNLESS THE PRESIDENT DETERMINES THAT SUCH REMOVAL AND REMEDIAL ACTION WILL BE DONE PROPERLY BY THE OWNER OR OPERATOR OF THE VESSEL OR FACILITY FROM WHICH THE RELEASE OR THREAT OF RELEASE EMANATES, OR BY ANY OTHER RESPONSIBLE PARTY."

ACCORDING TO THE PERTINENT HOUSE REPORT, H.R.REP. NO. 96-1016, PART I, PAGE 28 (1980):

"*** BECAUSE DELAY WILL OFTEN EXACERBATE AN ALREADY SERIOUS SITUATION, THE BILL AUTHORIZES *** ACTION WHEN AN IMMINENT AND SUBSTANTIAL ENDANGERMENT MAY EXIST. THE COMMITTEE INTENDS THIS STANDARD TO BE A FLEXIBLE ONE. HOWEVER, THE ADMINISTRATOR (CHANGED TO PRESIDENT) MAY NOT ACT WHERE THE PARTY RESPONSIBLE FOR THE RELEASE OR THREATENED RELEASE, OR THE AFFECTED STATE, WILL TAKE PROPER RESPONSE ACTION."

IN ADDITION TO THE REQUIREMENT THAT HE CONSIDER WHETHER THE RESPONSIBLE PARTY WILL TAKE CLEANUP ACTION, THE PRESIDENT IS AUTHORIZED TO CONSIDER OTHER FACTORS BEFORE STARTING THE CLEANUP. SECTION 104(B) OF THE ACT, 42 U.S.C. SEC. 9604(B), AUTHORIZES THE PRESIDENT TO:

"*** UNDERTAKE SUCH INVESTIGATIONS, MONITORING, SURVEYS, TESTING, AND OTHER INFORMATION GATHERING AS HE MAY DEEM NECESSARY OR APPROPRIATE TO IDENTIFY THE EXISTENCE AND EXTENT OF THE RELEASE OR THREAT THEREOF, THE SOURCE AND NATURE OF THE HAZARDOUS SUBSTANCES, POLLUTANTS OR CONTAMINANTS INVOLVED, AND THE EXTENT OF DANGER TO THE PUBLIC HEALTH OR WELFARE OR TO THE ENVIRONMENT. IN ADDITION, THE PRESIDENT MAY UNDERTAKE SUCH PLANNING, LEGAL, FISCAL, ECONOMIC, ENGINEERING, ARCHITECTURAL, AND OTHER STUDIES OR INVESTIGATIONS AS HE MAY DEEM NECESSARY OR APPROPRIATE TO PLAN AND DIRECT RESPONSE ACTIONS, TO RECOVER THE COSTS THEREOF, AND TO ENFORCE THE PROVISIONS OF THIS ACT."

WHILE CONGRESS RECOGNIZED THE NEED FOR QUICK ACTION, IT SEEMS TO HAVE BEEN WARY OF HASTY ACTION.

QUESTION 3: UNDER SECTION 105 OF THE 1980 ACT, 42 U.S.C. SEC. 9605, WAS THE PRESIDENT REQUIRED TO REVISE AND REPUBLISH THE NATIONAL CONTINGENCY PLAN FOR THE REMOVAL OF OIL AND HAZARDOUS SUBSTANCES BY JUNE 9, 1981?

ANSWER: YES; SECTION 105 OF THE 1980 ACT, 42 U.S.C. SEC. 9605, PROVIDES:

"WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE ENACTMENT OF THIS ACT (DECEMBER 11, 1980), THE PRESIDENT SHALL, AFTER NOTICE AND OPPORTUNITY FOR PUBLIC COMMENTS, REVISE AND REPUBLISH THE NATIONAL CONTINGENCY PLAN FOR THE REMOVAL OF OIL AND HAZARDOUS SUBSTANCES ***."

QUESTION 4: UNDER SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), WAS THE PRESIDENT REQUIRED TO LIST NATIONAL PRIORITIES AMONG THE KNOWN RELEASES OR THREATENED RELEASES THROUGHOUT THE UNITED STATES BY JUNE 9, 1981?

ANSWER: YES; SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), PROVIDES:

"*** THE PRESIDENT SHALL LIST AS PART OF THE (NATIONAL CONTINGENCY) PLAN NATIONAL PRIORITIES AMONG THE KNOWN RELEASES OR THREATENED RELEASES THROUGHOUT THE UNITED STATES ***."

AND, AS MENTIONED IN ANSWER TO QUESTION 3, THE NEW NATIONAL CONTINGENCY PLAN WAS TO BE PUBLISHED BY JUNE 9, 1981.

QUESTION 5:UNDER SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), WERE THE STATES REQUIRED TO ESTABLISH AND SUBMIT FOR CONSIDERATION BY THE PRESIDENT PRIORITIES FOR REMEDIAL ACTION AMONG KNOWN RELEASES AND POTENTIAL RELEASES IN THE STATES BY DECEMBER 10, 1981?

ANSWER: YES; SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B), PROVIDES:

"*** WITHIN ONE YEAR AFTER THE DATE OF ENACTMENT OF THIS ACT (DECEMBER 11, 1980), AND ANNUALLY THEREAFTER, EACH STATE SHALL ESTABLISH AND SUBMIT FOR CONSIDERATION BY THE PRESIDENT PRIORITIES FOR REMEDIAL ACTION AMONG KNOWN RELEASES AND POTENTIAL RELEASES IN THAT STATE ***."

QUESTION 6: MAY THE PRESIDENT IGNORE THE STATES' PRIORITIES IN ESTABLISHING THE NATIONAL LIST OF PRIORITIES FOR HAZARDOUS WASTE CLEANUP?

ANSWER: NO; THE PRESIDENT MAY NOT IGNORE THE STATES' PRIORITIES IN ESTABLISHING THE NATIONAL LIST OF PRIORITIES FOR HAZARDOUS WASTE CLEANUP. SECTION 105(8)(B) OF THE ACT, 42 U.S.C. SEC. 9605(8)(B), SPECIFICALLY DIRECTS THE PRESIDENT TO CONSIDER THE STATES' PRIORITIES:

"IN ASSEMBLING OR REVISING THE NATIONAL LIST, THE PRESIDENT SHALL CONSIDER ANY PRIORITIES ESTABLISHED BY THE STATES ***."

QUESTION 7: DOES THE PRESIDENT HAVE TO DESIGNATE AT LEAST 400 OF THE HIGHEST PRIORITY FACILITIES INDIVIDUALLY AND REFER TO THEM AS THE "TOP PRIORITY AMONG KNOWN RESPONSE TARGETS"? COULD HE DESIGNATE MORE THAN 400?

ANSWER: "TO THE EXTENT PRACTICABLE" THE PRESIDENT MUST DESIGNATE " *** AT LEAST FOUR HUNDRED OF THE HIGHEST PRIORITY FACILITIES WHICH SHALL BE DESIGNATED INDIVIDUALLY AND SHALL BE REFERRED TO AS THE 'TOP PRIORITY AMONG KNOWN RESPONSE TARGETS' ***." SEE SECTION 105(8)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9605(8)(B). THE LANGUAGE "AT LEAST" INDICATES THAT THE PRESIDENT MAY DESIGNATE MORE THAN 400 OF THE HIGHEST PRIORITY FACILITIES. AS DISCUSSED IN ANSWER TO QUESTION 1, THE LANGUAGE "TO THE EXTENT PRACTICABLE" GIVES THE PRESIDENT SOME LATITUDE IN DETERMINING HOW MANY AND WHICH FACILITIES TO DESIGNATE AS THE HIGHEST PRIORITIES.

QUESTION 8: MUST THE PRESIDENT INCLUDE AMONG THE 100 HIGHEST PRIORITY FACILITIES AT LEAST ONE FACILITY FROM EACH STATE?

ANSWER: "TO THE EXTENT PRACTICABLE" THE PRESIDENT MUST INCLUDE AT LEAST ONE FACILITY FROM EACH STATE AMONG THE TOP PRIORITIES TO RECEIVE SUPERFUND ATTENTION. SEE ANSWER TO QUESTION 1.

QUESTION 9: WHAT PORTION OF FUTURE MAINTENANCE COSTS OF HAZARDOUS WASTE REMEDIAL CLEANUP ACTION IS A STATE REQUIRED TO BEAR?

ANSWER: THE 1980 ACT MAY BE REASONABLY INTERPRETED EITHER AS REQUIRING A STATE TO PAY 10 PERCENT OR AS REQUIRING A STATE TO PAY ALL OF THE MAINTENANCE COSTS IN QUESTION. SECTION 104(C)(3) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3), PROVIDES THAT THE STATE IN WHICH CLEANUP OF HAZARDOUS WASTE IS TO TAKE PLACE MUST "PROVIDE ASSURANCES DEEMED ADEQUATE BY THE PRESIDENT THAT (A) THE STATE WILL ASSURE ALL FUTURE MAINTENANCE OF THE REMOVAL AND REMEDIAL CLEANUP ACTIONS PROVIDED FOR THE EXPECTED LIFE OF SUCH ACTIONS *** AND (C) THE STATE WILL PAY OR ASSURE PAYMENT OF (I) 10 PER CENTUM OF THE COSTS OF THE REMEDIAL ACTION, INCLUDING ALL FUTURE MAINTENANCE ***." THE LEGISLATIVE HISTORY OF THE ACT SHEDS NO LIGHT ON WHAT CONGRESS INTENDED IN THIS PROVISION. IN SUPPORT OF THE POSITION THAT THE STATE PAY 10 PERCENT, ONE COULD REASONABLY ARGUE THAT THE PHRASE "INCLUDING ALL FUTURE MAINTENANCE" MEANS THAT FUTURE MAINTENANCE IS TO BE PART OF THE REMEDIAL ACTION FOR WHICH THE STATE IS TO PAY 10 PERCENT. ONE WOULD FURTHER ARGUE, IN SUPPORTING THIS POSITION, THAT THE REQUIREMENT THAT THE STATE "ASSURE ALL FUTURE MAINTENANCE" DOES NOT MEAN THE STATE WILL PAY FOR ALL FUTURE MAINTENANCE, BUT THAT THE STATE WILL TAKE THE STEPS NECESSARY TO INSURE MAINTENANCE - E.G., MAKE SURE THERE ARE CONTRACTORS AVAILABLE TO DO THE WORK. ON THE OTHER HAND, ONE COULD REASONABLY ARGUE THAT THE LANGUAGE "INCLUDING ALL FUTURE MAINTENANCE" TOGETHER WITH "ASSURE ALL FUTURE MAINTENANCE" MEANS THE STATE MUST PAY ALL MAINTENANCE COSTS. (IN ANY EVENT, THE STATE MAY NOT PAY ANY LESS THAN 10 PERCENT OF THE MAINTENANCE COSTS.)

QUESTION 10: UNDER SECTION 104(C)(3)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(B), WOULD A FACILITY THAT OBTAINED "INTERIM STATUS" UNDER SECTION 3005(E) OF THE SOLID WASTE DISPOSAL ACT, 42 U.S.C. SEC. 6925(E), BE ELIGIBLE TO RECEIVE WASTES THAT REQUIRED OFFSITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION?

ANSWER: YES, "INTERIM STATUS" WOULD QUALIFY A FACILITY TO RECEIVE WASTES THAT REQUIRED OFFSITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION. SECTION 104(C)(3)(B) OF THE ACT, 42 U.S.C. SEC. 9604(C)(3)(B) PROVIDES THAT ONE PREREQUISITE FOR MAKING A FACILITY ELIGIBLE FOR SUPERFUND ATTENTION IS THAT:

"*** THE STATE WILL ASSURE THE AVAILABILITY OF A HAZARDOUS WASTE DISPOSAL FACILITY ACCEPTABLE TO THE PRESIDENT AND IN COMPLIANCE WITH THE REQUIREMENTS OF SUBTITLE C OF THE SOLID WASTE DISPOSAL ACT FOR ANY NECESSARY OFFSITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION OF THE HAZARDOUS SUBSTANCES; ***."

SUBTITLE C OF THE SOLID WASTE DISPOSAL ACT REQUIRES THAT OWNERS AND OPERATORS OF HAZARDOUS WASTE DISPOSAL FACILITIES HAVE EPA PERMITS AND MEET CERTAIN STANDARDS IN OPERATING THEIR FACILITIES. SECTION 3005(E) OF THAT ACT, 42 U.S.C. SEC. 6925(E), WHICH IS PART OF SUBTITLE C, PROVIDES FOR CERTAIN APPLICANTS FOR PERMITS TO HAVE INTERIM STATUS AS PERMIT HOLDERS, PENDING THE OUTCOME OF THEIR APPLICATIONS. SINCE THOSE WITH INTERIM STATUS ARE TREATED AS PERMIT HOLDERS UNDER THE SOLID WASTE DISPOSAL ACT ITSELF, WE SEE NO REASON WHY THEY SHOULD NOT BE TREATED SIMILARLY FOR PURPOSES OF SEC. 9604(C)(3)(B) OF THE 1980 ACT WHICH SPECIFICALLY REFERENCES THE FORMER LAW. THE EXTENT TO WHICH REGULAR PERMIT HOLDERS AND THOSE WITH INTERIM STATUS MUST MEET OTHER SUBTITLE C REQUIREMENTS IS FOR DETERMINATION BY EPA, WHICH HAS BROAD DISCRETION IN THIS RESPECT.

QUESTION 11: UNDER SECTION 104(C)(3)(B) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(B), THERE IS NO DISCUSSION OF ANY SUBTITLE C REQUIREMENTS THAT MUST BE MET IF ON SITE STORAGE, DESTRUCTION, TREATMENT, OR SECURE DISPOSITION IS REQUIRED. ARE THERE ANY ON SITE REQUIREMENTS THAT MUST BE MET?

ANSWER: WE ARE AWARE OF NO ON SITE REQUIREMENTS THAT MUST BE MET UNDER SECTION 104(C)(3)(B). THIS SECTION, AS QUOTED ABOVE IN ANSWER TO QUESTION 10, ONLY REQUIRES, FOR PURPOSES OF SUPERFUND ATTENTION, THAT THE STATE ASSURE THE AVAILABILITY OF NECESSARY "OFFSITE" STORAGE, DESTRUCTION, TREATMENT OR SECURE DISPOSITION OF THE HAZARDOUS WASTE.

QUESTION 12: UNDER SECTION 104(C)(3)(C)(I) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C)(I), THE STATE IS REQUIRED TO PAY OR ASSURE PAYMENT OF 10 PERCENT OF "THE COSTS OF THE REMEDIAL ACTION." WHAT COSTS REQUIRE STATE PARTICIPATION? IS IT MERELY THE COST OF ACTUALLY CONSTRUCTING THE REMEDIAL ACTION PROJECT OR ARE COSTS OF SUCH THINGS AS SITE INVESTIGATIONS, DESIGN AND ENGINEERING STUDIES, AND FEASIBILITY STUDIES ALSO INCLUDED?

ANSWER: "COSTS OF THE REMEDIAL ACTION" REQUIRING STATE PARTICIPATION REFERS TO ACTIVITIES SUCH AS CONSTRUCTION, THAT ARE A DIRECT PART OF THE REMEDIAL ACTION. IT DOES NOT INCLUDE SUCH THINGS AS SITE INVESTIGATIONS AND VARIOUS TYPES OF PRE-CONSTRUCTION STUDIES. "REMEDIAL ACTION" IS DEFINED AS ACTION CONSISTENT WITH A PERMANENT REMEDY TO PREVENT OR MINIMIZE THE RELEASE OF HAZARDOUS SUBSTANCES AND INCLUDES SUCH ACTIONS "AT THE LOCATION OF THE RELEASE AS STORAGE, CONFINEMENT, *** CLEANUP OF HAZARDOUS SUBSTANCES, *** DREDGING OR EXCAVATIONS ***." SECTION 101(24) OF THE 1980 ACT, 42 U.S.C. SEC. 9601(24). ALTHOUGH THESE ITEMS ARE ONLY EXAMPLES, THEY ARE INDICATIVE OF THE TYPES OF ACTIVITIES THAT CONSTITUTE REMEDIAL ACTIONS. ALL OF THE EXAMPLES ARE ACTIVITIES THAT ARE PART OF ACTUAL CLEANUP IN SOME WAY.

WE UNDERSTAND, FROM INFORMAL DISCUSSIONS WITH EPA PERSONNEL, THAT EPA DOES NOT CONSIDER THE TYPES OF PRE-CLEANUP ACTIONS REFERRED TO IN YOUR QUESTION TO BE WITHIN THE MEANING OF "REMEDIAL ACTIONS," AND WE THINK THIS IS A REASONABLE INTERPRETATION OF THE LAW.

QUESTION 13: UNDER SECTION 104(C)(3)(C)(II) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C)(II), COULD A STATE BE REQUIRED TO PAY 100 PERCENT OF THE COSTS OF CLEANING UP HAZARDOUS WASTE AT A SITE OWNED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF?

ANSWER: YES, UNDER SECTION 104(C)(3)(C)(II) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C)(II), A STATE COULD BE REQUIRED TO PAY 100 PERCENT OF THE COSTS IN CLEANING UP A SITE OWNED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF. THAT SECTION SPECIFICALLY REQUIRES THE STATE TO PAY OR ASSURE PAYMENT OF:

"*** AT LEAST 50 PER CENTUM OR SUCH GREATER AMOUNT AS THE PRESIDENT MAY DETERMINE APPROPRIATE, TAKING INTO ACCOUNT THE DEGREE OF RESPONSIBILITY OF THE STATE OR POLITICAL SUBDIVISION, OF ANY SUMS EXPENDED IN RESPONSE TO A RELEASE AT A FACILITY THAT WAS OWNED AT THE TIME OF ANY DISPOSAL OF HAZARDOUS SUBSTANCES THEREIN BY THE STATE OR A POLITICAL SUBDIVISION THEREOF."

QUESTION 14: DOES THE CREDIT GIVEN TO A STATE FOR CERTAIN EXPENSES INCURRED BEFORE THE 1980 ACT APPLY FOR THE SPECIFIC SITE IN QUESTION OR CAN IT BE APPLIED REGARDLESS OF WHICH SITE THE STATE SPENT ITS FUNDS ON?

ANSWER: THE STATE RECEIVES CREDIT ONLY FOR THOSE EXPENSES INCURRED FOR THE SPECIFIC SITE IN QUESTION. THIS CONCLUSION IS READILY APPARENT FROM THE LANGUAGE OF THE STATUTE ITSELF:

"*** THE PRESIDENT SHALL GRANT THE STATE A CREDIT AGAINST THE SHARE OF THE COSTS FOR WHICH IT IS RESPONSIBLE UNDER THIS PARAGRAPH FOR ANY DOCUMENTED DIRECT OUT-OF-POCKET NON-FEDERAL FUNDS EXPENDED OR OBLIGATED BY THE STATE OR A POLITICAL SUBDIVISION THEREOF AFTER JANUARY 1, 1978, AND BEFORE THE DATE OF ENACTMENT OF THIS ACT FOR COST-ELIGIBLE RESPONSE ACTIONS *** RELATING TO THE SPECIFIC RELEASE IN QUESTION." SECTION 104(C)(3)(C) OF THE 1980 ACT, 42 U.S.C. SEC. 9604(C)(3)(C).

QUESTION 15: CAN MONIES FROM SUPERFUND BE USED TO CLEAN UP A SITE EVEN THOUGH AN ENFORCEMENT ACTION IS PROCEEDING AGAINST A FINANCIALLY VIABLE RESPONSIBLE PARTY? AND IF SO, AT WHAT POINT MAY THE SITE BE CLEANED UP?

ANSWER: THERE IS NOTHING IN THE LAW THAT WOULD PROHIBIT USING MONIES FROM SUPERFUND TO CLEAN UP A SITE WHILE AN ENFORCEMENT ACTION IS PROCEEDING AGAINST A FINANCIALLY VIABLE RESPONSIBLE PARTY. THAT BEING SO, THE SITE MAY BE CLEANED UP AT ANY TIME.