B-226922, Jul 23, 1987

B-226922, Jul 23, 1987

MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous substances - Waste sites - Cooperative agreements - Statutory compliance DIGEST: 1. The EPA is authorized under section 9604(d) of CERCLA, as amended, to enter into cooperative agreements with states to undertake hazardous waste site discovery programs. MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous substances - Waste sites - Funding - Statutory compliance 2. Superfund monies may be used by the EPA and states for waste site discovery programs authorized under section 9604(d) of CERCLA, as amended. Superfund monies may also be used by the EPA for waste site discovery programs authorized under section 9605 and 9603 of CERCLA, as amended. MISCELLANEOUS TOPICS - Environment/Energy/Natural Resources - Hazardous substances - Waste sites - State/local governments - Rights 3. A state could petition the EPA to conduct a preliminary assessment under section 9605(d) of CERCLA, as amended.

EPA Authority under the Comprehensive Environmental Response, Compensation, and Liability Act to Identify Hazardous Waste Sites. (Code 089353, B-226922):

In an April 6, 1987 memorandum you presented eight questions relating to federal and state identification and assessment of hazardous waste sites. The first five, which concerned interpretation of section 3012 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6933 (1982), were answered earlier. (Memorandum from Jane R. Sajewski to Lawrence J. Dyckman, May 20, 1987)

The memorandum answers the remaining three questions, as modified in discussions with your staff, which relate to the authority of EPA and states to conduct hazardous waste site identification programs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, 42 U.S.C.A. Sec. 9601 et seq, and the availability of appropriations under CERCLA for that purpose.

Question 1: Is the Environmental Protection Agency (EPA or the Agency) authorized under section 9604(d) of CERCLA, as amended, to enter into cooperative agreements with states to undertake hazardous waste site discovery programs?

Answer: Yes.

Discussion: Section 9604(d) of CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, Sec. 104(e), 100 Stat. 1613, 1621, authorizes the President to enter into cooperative agreements with states or localities permitting them to carry out activities assigned to the President under section 9604. (Authorities and duties of the President under CERCLA and SARA have been delegated to EPA, and we will henceforth refer only to EPA.) Activities assigned to EPA under section 9604 relate primarily to response and removal actions to eliminate threats to public health and safety due to releases and threatened releases of hazardous wastes into the environment. However, section 9604(b) also provides EPA with authority to undertake programs to identify potential hazardous waste sites. Section 9604(b) provides, in relevant part, as follows:

"... whenever there is a release or substantial threat of a release or whenever the Agency has reason to believe that a release has occurred or is about to occur ...," the Agency is authorized to "undertake such investigations, monitoring, surveys, testing, and other information gathering as it may deem necessary or appropriate to identify the existence and extent of the release or threat thereof. ... In addition, the EPA may undertake such ... studies or investigations as it may deem necessary or appropriate to plan and direct response actions. ..." 42 U.S.C.A. Sec. 9604(b)(1) (1987 Supp.).

The above provision contains language broad enough to authorize the EPA to engage in hazardous waste site identification efforts. Most notably, the language authorizing such "information gathering" as the EPA "may deem necessary or appropriate to identify the existence" of releases or threatened releases of hazardous substances might be construed as encompassing waste site identification efforts. Investigations and surveys undertaken toward that end are specifically authorized by the section. Furthermore, the provision goes on to authorize EPA to conduct such "studies or investigations as it may deem necessary or appropriate to plan ... response actions. ..." Because the EPA might reasonably consider site identification programs as "necessary or appropriate to plan ... response actions ...," a second source of authority for EPA waste site identification efforts is created by the language in the provision.

A second provision contained in section 9604 grants certain authorities to EPA which could be exercised while undertaking waste site identification efforts. Section 9604(e) generally describes the investigatory and search powers EPA may exercise for purposes of "determining the need for response, or choosing or taking any response action ... or otherwise enforcing" sections 9601-9626 of CERCLA, as amended. 42 U.S.C.A. Sec. 9604(e)(1) (1987 Supp.).

Specifically, the section authorizes EPA to require persons to furnish information relating to the "identification, nature and quantity of materials ... generated, stored, or disposed of at a ... facility ..."; and the "nature or extent of a release or threatened release of a hazardous substance ... from a facility." 42 U.S.C.A. Sec. 9604(e)(2) (1987 Supp.). The provision also permits EPA officials to enter any facility or establishment where a release or threatened release may be suspected, 42 U.S.C.A. Sec. 9604(e)(3) (1987 Supp.), and to obtain samples from the site, 42 U.S.C.A. Sec. 9604(e)(4) (1987 Supp.). However, the entry and sampling authorities may only be exercised "if there is a reasonable basis to believe there may be a release or threat of a release. ..." 42 U.S.C.A. Sec. 9604(e)(1) (1987 Supp.).

Section 9604(e) thus provides authority for EPA to require that information regarding a potential hazardous waste site be furnished to the Agency "for purposes of determining the need for response. ..." Because waste site identification efforts may reasonably be deemed one means of determining the need for response, section 9604(e) may be interpreted as providing authority for EPA to compel the release of information in waste site identification efforts.

One limitation on EPA's authority to undertake site identification is the language in the statute that there must be a substantial threat of release, or reason to believe that a release is about to occur. Arguably, EPA could not institute a survey or investigation without some evidence of a problem. As a practical matter, however, we presume that EPA would not want to use its resources to search for hazardous waste sites on a random basis: the impetus for an investigation would ordinarily be some evidence of a site and of a threat of release.

Sections 9604(b) and 9604(e) thus provide EPA with authority to engage in waste site identification efforts. Because this authority is contained in section 9604 generally, such waste site identification efforts may be the subjects of cooperative agreements with the states under section 9604(d). /1/ As you pointed out, further support for this conclusion is found in the SARA Conference Report, H.R. Rep. No. 962, 99th Cong., 2d Sess. (1986).

That report noted, in relevant part, as follows:

"Included within the class of activities that may be the subject of cooperative agreements under this provision are those activities associated with ... site inventory and assessment efforts, and administration of remedial activities as authorized by this Act." H.R. Rep. No. 962, 99th Cong., 2nd Sess. 195 (1986).

While the provisions discussed above authorize EPA to enter into cooperative agreements with states which would delegate waste site identification efforts to the states, the provisions in no way compel EPA to do so. Nor does section 9604 compel EPA to undertake waste site identification efforts on its own. /2/

Question 2: Does CERCLA, as amended, authorize any funds that could be used by EPA or the states for waste site discovery?

Answer: Yes.

Discussion: Section 9611(c)(3) of CERCLA, as amended, provides that the Hazardous Substance Response Trust Fund (Superfund) may be tapped to fund "the costs of a program to identify, investigate, and take enforcement and abatement action against releases of hazardous substances." However, the section permits such use of Superfund subject to such amounts as are provided in appropriation acts. 42 U.S.C. Sec. 9611(c)(3) (1982).

For fiscal year 1987, Congress appropriated $1,411,300,000 of Superfund monies for "necessary expenses to carry out" CERCLA, as amended, and specifically made these funds available for the purposes of section 9611(c)(3), among others. The appropriation "remains available until expended." Pub.L. No. 99-591, Sec. 101(g), 100 Stat. 3341-242 (1986).

Because funds were specifically appropriated to carry out section 9611(c)(3), among others, EPA may utilize such funds for any hazardous waste site identification program it is otherwise authorized to undertake by CERCLA, as amended. EPA might apply Superfund monies to waste site identification programs established under cooperative agreements with states under section 9604(d), as discussed in the answer to question number 1 above. The amount of federal funds applied to such programs in each state would be reflected in cooperative agreements between EPA and the states.

CERCLA, as amended, also authorizes EPA, in establishing the national hazardous substance response plan, to "establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants, which shall include at a minimum: (1) methods for discovering and investigating facilities at which hazardous substances have been disposed of or otherwise come to be located." 42 U.S.C. Sec. 9605 (1982). Therefore, under section 9605, funds available under the fiscal year 1987 appropriation act could be directed towards an EPA program focusing on establishing "methods for discovering ... facilities at which hazardous substances have been disposed of or otherwise come to be located." However, because the relevant authority provided in section 9605 is not part of section 9604, efforts undertaken pursuant to section 9605 could not be the subject of cooperative agreements with the states.

Another source of EPA authority to identify potential waste sites is contained in section 9603 of CERCLA, as amended. 42 U.S.C. Sec. 9603 (1982). Under that provision, persons responsible for facilities containing hazardous substances are subject to criminal penalties for failure to notify federal and state authorities of releases from the facilities. 42 U.S.C. Sec. 9603(a). The section also requires, with certain exceptions, "any person who owns or operates or who at the time of disposal owned or operated, or who accepted hazardous substances for transport and selected, a facility at which hazardous substances ... are or have been stored, treated, or disposed of", to notify the EPA of the existence of the applicable facility. 42 U.S.C. Sec. 9603(c). Such notification was to be accomplished within 180 days after December 11, 1980. 42 U.S.C. Sec. 9603(c).

A program to identify or inventory waste sites by enforcement of the reporting requirement of section 9603 could thus be undertaken by EPA, and funded with Superfund monies. Any program undertaken by EPA pursuant to section 9603 could not be shouldered, in part, by states under cooperative agreements because only programs authorized under section 9604 may be the subject of such agreements.

An important restriction is found in section 9611(c)(3): EPA funding of waste site identification efforts is limited to those amounts specifically provided in annual appropriations acts. Therefore, EPA's ability to allocate funds for such efforts is contingent upon the Congress' dedication of funds to that purpose in annual appropriations acts.

Because the fiscal year 1987 appropriation for this purpose contained language making such funds available "until expended," the Agency might use such funds beyond the 1987 fiscal year for site identification, without additional appropriations authority. Once these funds have been obligated, however, new authority from Congress would be a necessary prerequisite to EPA allocation of funds to site identification efforts.

Furthermore, the applicable appropriations act language in no way compels EPA to expend funds for site identification efforts. Such a funding decision would fall within the discretion of the Agency, particularly since CERCLA, as amended, contains no language mandating the establishment of a site identification program.

Question 3: Since CERCLA, as amended, defines "person" to include a state, could a state petition the Environmental Protection Agency to conduct a preliminary assessment under section 9605(d) of the Act?

Answer: Yes.

Discussion: CERCLA, as amended, provides that "any person who is or may be affected by a release or threatened release ... may petition EPA to conduct a preliminary assessment of the hazards ... associated with such release or threatened release ..." 42 U.S.C.A. Sec. 9605(d) (1987 Supp.). The Act defines the term "person" to include states. 42 U.S.C.A. Sec. 9601(21)(1982).

While an earlier and substantially different version of section 9605(d) considered by the 98th Congress granted only individuals the right to petition the EPA, H.R. 5640, 98th Cong., 2d Sess. Sec. 112 (1984), all versions of the provision offered in the 99th Congress, which finally enacted the section, contained the term "person." Indeed, it appears that the shift from "individual" to "person" indicated congressional intent to broaden the sphere of potential petitioners under the provision to include the entities listed in the definition, such as states as well as individuals. Construing section 9605(d) to permit states to petition the President for preliminary assessment of potential hazardous substance releases appears consistent with the general structure and intent of CERCLA, as amended. Under current regulations, however, if a state has become responsible for remedial action efforts regarding a particular facility, the state is responsible for conducting the preliminary assessment at the facility. 40 C.F.R. Sec. 300.64(a) (1986). Therefore, a petition by a state to EPA under section 9605(d) for preliminary assessment of a site over which the state has assumed remedial action authority might be referred back to the state by virtue of the state's assumption of responsibility for relevant remedial action efforts at that site.

/1/ Section 9604(e)(1) also specifies independently that "any duly designated officer, employee, or representative of a State or political subdivision under a contract or cooperative agreement under subsection (d)(1) of this section is also authorized to" exercise investigatory powers established by the section.

/2/ Legal counsel at EPA agreed that cooperative agreements could be undertaken permitting states to establish waste site identification programs under sections 9604(b) and (e). Interview with Joseph Friedman, Office of General Counsel, EPA (May 18, 1987).