New EPA rule likely to increase role of Indian tribes in Superfund Cleanups
May, 2007
On May 2, 2007 the Environmental Protection Agency ("EPA") issued a final rule, intended to promote greater involvement in the cleanup of Superfund sites by tribes, intertribal consortia, states and political subdivisions. The rule, Cooperative Agreements and Superfund State Contracts for Superfund Response Actions ("Rule"),[i] which takes effect July 2, 2007, [ii] updates the regulations governing Superfund cooperative agreements and Superfund state contracts, expanding the activities for which funding is available, eliminating the jurisdictional and cost-share requirements for Indian tribes, and making intertribal consortia eligible.
This is the first time EPA has revised the regulations governing Superfund Cooperative Agreements and Superfund State Contracts since they were promulgated in 1990.[iii] While the changes imposed by the Rule are designed to make it easier for states, political subdivisions, tribes, and tribal consortia to become involved in the cleanup of Superfund sites, the most significant impact of the Rule may be on tribal involvement. With more than 560 Federally-recognized tribes throughout the United States, and hundreds of CERCLA sites on or impacting tribal lands,[iv] the expansion of activities that qualify for funding and the elimination of the tribal cost-share requirement may result in a significant increase in the number of sites where tribes are involved, or take the lead, in site investigation, remediation, and even enforcement activities.
Superfund Cooperative Agreements
There are two types of agreements available to states, tribes, and political subdivisions of states[v] under CERCLA that provide for a formal role in Superfund cleanups, and for funding by EPA. They are Superfund cooperative agreements[vi] and Superfund state contracts.
Superfund cooperative agreements are legally binding contracts that transfer funds from EPA to states, political subdivisions of states, or tribes to lead site-specific responses; to cover the costs of participation in EPA-lead sites; or to engage in other CERCLA activities[vii] including site assessment, removal actions, pre-remedial activities, remedial activities, and enforcement.[viii] In exchange for funding and participation, cooperative agreements require that states (but not tribes) agree to share the costs of removal and remedial actions with the EPA, and to provide CERCLA § 104 assurances regarding future maintenance of the removal and remedial actions and regarding cost-sharing.[ix]
EPA's funding of cooperative agreements may be significant. Between FY 2000 and the first quarter of FY 2006, one hundred ninety-six Superfund State, Political Subdivision, and Indian Tribe Site-Specific Cooperative Agreements provided funding of $363,032,712.[x]
Another type of cooperative agreement, the Core Program Cooperative Agreement, provides administrative Superfund program support to states and tribes for activities that are essential to play an active role in CERCLA implementation but which cannot be accounted for on a site-specific basis.[xi] Such activities may include developing legal authorities and enforcement support, hiring and training staff, computer resources, program management, recordkeeping, and training.[xii] The Core Program began in FY 1987 with three pilot states.[xiii] Between FY 2000 and the first quarter of FY 2006, sixty-seven Superfund Core Program Cooperative Agreements provided states and tribes with funding totaling $83,430,345.[xiv]
Superfund State Contracts for Superfund Response Actions
The second form of Superfund funding and participation agreement is the Superfund state contract, a legally-binding agreement between a state or tribe[xv] and EPA that transfers cost-sharing funds when EPA is leading a Superfund response action, and documents that the state or tribe meets all assurances required under CERCLA. CERCLA prohibits EPA's providing funding for participation in a remedial action unless the state provides assurances that (1) it will pay 10% of the cost of actual cleanup for sites that were privately operated at the time of a release of hazardous substances, or 50% or more if the state or local government operated the site at the time of the release; (2) there is an eligible facility in the state for disposal of hazardous materials removed from a site during cleanup; (3) the state's disposal capacity can adequately handle all wastes generated within the state over 20 years; and (4) it will operate and maintain the selected remedy once cleanup is completed and is proven to be operational and functional.[xvi]
A Superfund state contract may provide for operation and maintenance (O&M) of the selected remedy by a political subdivision such as a city or county; however, the state remains ultimately responsible for O&M. The Superfund state contract is used under such circumstances to specify what level of involvement in O&M of the remedy will be required of the state.[xvii]
Changes to Cooperative Agreements and Superfund State Contracts under EPA's New Rule
EPA's new Rule updates the regulations governing Superfund cooperative agreements and Superfund state contracts, making changes to 40 C.F.R. Part 35, Subpart O that includes the following:
· Requiring a single cooperative agreement for each state-, political subdivision-, or tribe-lead remedial action and certain and removal actions. This revision will permit EPA to award a single agreement for (1) a single activity or multiple activities; (2) a single activity at multiple sites; and (3) multiple activities at multiple sites.[xviii] For example, EPA may award a single cooperative agreement for Core Program, pre-remedial, and support agency activities. This approach has been used successfully for several years under EPA's Block Funding Administrative Reform.[xix]
· Providing for the maintenance of Core Programs previously established using Core Program funding. Tribes are no longer required to meet the Core Program match requirements. In addition, a five-year review is now a support agency activity eligible for funding.[xx]
· Eliminating the 10% cost-share by recipients of cooperative agreements for remedial action support activities at EPA-lead sites. EPA will not agree to waive the cost-share requirements under existing support agency cooperative agreements that were awarded prior to the Rule's effective date.[xxi]
· Reducing "unnecessary obstacles to tribal involvement" by eliminating (1) all tribal cost-share requirements from Core Program and Support Agency cooperative agreements; (2) a tribe's obligation to establish jurisdiction over the CERCLA site as a condition of Core Program and most Support Agency cooperative agreements; and (3) the requirement that a tribe acquire an interest or accept transfer of an interest in real property acquired with CERCLA funds.[xxii]
· Allowing intertribal consortia to enter into cooperative agreements with EPA. An intertribal consortium is eligible only if each consortium member is an eligible tribe and all members authorize the consortium to apply for and receive assistance.[xxiii]
· Making the existing three-party Superfund State Contract (EPA-state-political subdivision) optional rather than mandatory. EPA may permit the contract to be signed only by EPA and the state to obtain the requisite state assurances, and rely on a separate cooperative agreement with the political subdivision involved in the CERCLA activity. The Rule requires that EPA obtain the state's concurrence prior to awarding a cooperative agreement for remedial action to a political subdivision.
· Clarifying that the primary purpose of a Superfund State Contract is to ensure state and tribal involvement and to obtain state assurances before EPA can fund remedial actions pursuant to CERCLA § 104; the Superfund State Contract may also be used to document other response actions and third-party involvement.[xxiv]
· Making changes to the contents of Superfund State Contracts to clarify when a state's responsibility for operation and maintenance begins.[xxv]
For more information on tribal environmental laws, or Superfund and remedial actions generally, please contact Connie Sue Martin.
[i] 72 Fed. Reg. 24496 – 24522 (May 2, 2007).
[ii] The final regulation requirements will apply to all new cooperative agreements signed by EPA on or after July 2, 2007. EPA may agree to amend existing cooperative agreements or Superfund state contracts to make the final regulation requirements applicable to work performed on or after the date EPA signs the amendment. 72 Fed. Reg. at 24496.
[iv] Office of the Inspector General, Evaluation Report, Tribal Superfund Program Needs Clear Direction and Actions to Improve the Tribal Superfund Program (Report No. 2004-P-00035, September 30, 2004) at 1, 4-5, available at http://www.epa.gov/oig/reports/2004/20040930-2004-P-00035.pdf.
[v] 40 C.F.R. § 35.6015(a)(31). A "political subdivision" is defined as the unit of government that a state determines meets the state's legislative definition of a political subdivision. In Washington, political subdivisions include cities, towns, counties, and other municipal corporations. Washington State Const. art. 11, § 1; RCW Titles 35, 35A.. See, generally, Kelly Kunsch, 1A Wash. Pract.: Methods of Practice, § 60.1 at 716 (4th ed. 1997).
[vi] 42 U.S.C. §§ 9604(c)(3) and 9604(d)(1); 40 C.F.R. part 35, Subpart O.
[ix] CERCLA/SUPERFUND Orientation Manual, at VIII-5; 42 U.S.C. § 9604(c)(3).
[xiii] CERCLA/SUPERFUND Orientation Manual, at VIII-7.
[xv] The governing body of an Indian tribe is afforded substantially the same treatment as a State with respect to certain provisions of CERCLA, including 42 U.S.C. § 9604. 42 U.S.C. § 9626(a).
[xvi] CERCLA/SUPERFUND Orientation Manual, at VIII-5. 42 U.S.C. § 9604(c)(3); 40 C.F.R. § 300.510; see, also, United States Environmental Protection Agency, Office of Solid Waste and Emergency Response, State and Local Involvement in the Superfund Program, Publication No. 9375.5-01/FS (Fall 1989), at 1, available at http://www.epa.gov/superfund/resources/remedy/pdf/93-75501fs-s.pdf. CERCLA § 104(c)(3) provides that where a remedial action is to be taken on tribal lands or waters, the tribe is not required to make assurances regarding future maintenance and cost-sharing, and the United States will provide the assurance regarding the availability of a hazardous waste disposal facility.
[xvii] CERCLA/SUPERFUND Orientation Manual, at VIII-5.
[xviii] EPA will not award or amend a cooperative agreement to a political subdivision to conduct multiple activities at multiple sites. 72 Fed. Reg. at 24497. This, in conjunction with the Rule's requirement that EPA obtain state concurrence before awarding a cooperative agreement for remedial action to a political subdivision, reflects EPA's belief in the importance of maintaining close communication and coordination with the state in all CERCLA responses. Id.
[xix] 72 Fed. Reg. at 24499.
[xx] 72 Fed. Reg. at 24499.
[xxii] 72 Fed. Reg. at 24497, 24498.
[xxiii] Id.
[xxiv] 72 Fed. Reg. at 24501.