[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)]
[Rules and Regulations]
[Pages 8284-8296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2716]
[[Page 8283]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 310
Reimbursement to Local Governments for Emergency Responses to Hazardous
Substances Releases; Final Rule
Federal Register / Vol. 63, No. 32 / Wednesday, February 18, 1998 /
Rules and Regulations
[[Page 8284]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 310
[FR-5958-1]
RIN 2050-AE36
Reimbursement to Local Governments for Emergency Responses to
Hazardous Substance Releases
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: In response to President Clinton's regulatory reform
initiative to reduce the burden on small entities, and eliminate,
streamline, and rewrite regulations in plain English, the Environmental
Protection Agency (``we'' or EPA) is issuing this interim final rule
(regulation). Through this regulation, EPA will streamline procedures
used to reimburse local governments for emergency response costs. Local
governments may be reimbursed for certain costs they incur in taking
temporary emergency measures related to releases of hazardous
substances, pollutants and contaminants. Through this regulation, we
are: Easing program and reporting requirements to make reimbursement
more accessible; Simplifying the application process; Streamlining
EPA's evaluation process to speed up reviewing applications and paying
eligible applicants; and, Reorganizing the entire part 310 to make it
clearer and easier to use.
Reimbursement through this program will help lighten financial
burdens placed on local governments that respond to hazardous releases
or threats. Reimbursement will also help strengthen effective emergency
response at the local level.
DATES: The effective date for this interim final rule is February 18,
1998. The Director of the Federal Register has approved the
incorporation by reference of certain publications listed in this
regulation as of February 18, 1998. Comments must be received on or
before April 20, 1998.
ADDRESSES: Mail comments on specific aspects of this rulemaking and the
information collection to Local Governments Reimbursement Program,
Office of Emergency and Remedial Response (5204-G), Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460. You may
review information collection materials from 8:30 a.m. to 5:30 p.m.,
Monday through Friday, by visiting Public Docket No. LGR-xx, located at
1235 Jefferson Davis Highway (ground floor), Arlington, Virginia. A
reasonable fee may be charged for copying docket material.
FOR FURTHER INFORMATION CONTACT: For information on specific aspects of
this final rule for reimbursement to local governments, contact: Lisa
Boynton, (703) 603-9052, Local Governments Reimbursement Project
Officer, Office of Emergency and Remedial Response (5204-G), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
SUPPLEMENTARY INFORMATION: We have included a summary of the changes in
today's Register. If you would like to see a detailed description of
the changes and the rationale for them, contact Lisa Boynton at the
address provided under ``For Further Information.'' If you would like
to skip the discussion of the changes and refer directly to the
requirements for reimbursement, turn to Sec. 310.1.
I. What Is the Statutory Authority for This Program?
Section 123 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C.
9623, authorizes EPA to reimburse local governments for expenses
incurred in carrying out temporary emergency measures. These measures
must be necessary to prevent or mitigate injury to human health or the
environment associated with the release or threatened release of any
hazardous substance, or pollutant or contaminant. Additionally, Section
123(d) of CERCLA, 42 U.S.C. 9623(d), directs the EPA Administrator to
issue regulations to implement this program.
The authority to receive, evaluate, and make determinations
regarding requests for reimbursement and to issue payments to qualified
applicants is delegated to the Director of the State and Site
Identification Center within the Office of Emergency and Remedial
Response. This rulemaking discusses changes designed to streamline the
Agency's current procedures for reimbursing local governments and
clarifies how the reimbursement program works.
II. What Else Do I Need to Know About CERCLA?
CERCLA provides broad federal authority to respond directly to
releases or threatened releases of hazardous substances and pollutants
or contaminants that may endanger human health or welfare or the
environment. CERCLA responses usually are joint efforts by federal,
state and local agencies. As local public safety and health
organizations are normally the first government representatives at the
scene of a hazardous substance release, they play a critical role in
providing temporary emergency measures.
III. Did Congress Specify What Was to be Reimbursed Under This
Program?
Reimbursement under this program can provide some financial relief
(limited to $25,000 per single response) to local governments most
seriously affected by costs above and beyond those incurred routinely
and traditionally. Congress made it clear in the Conference Report for
the Superfund Amendments and Reauthorization Act of 1986 that
``reimbursement under this provision shall not include reimbursement
for normal expenditures that are incurred in the course of providing
what are traditionally local services and responsibilities, such as
routine emergency firefighting.'' With the specific requirement in
section 123 that reimbursement not supplant local funds normally
provided for response, Congress intends that local governments continue
to bear some share of expenses for providing temporary emergency
measures. However, Congress recognized that in the past, conducting
such response activities has placed a significant financial burden on
some local governments.
IV. Why Is EPA Amending This Regulation?
EPA believes that the regulations must be amended to: (1) make
funds that are available under this program more accessible to local
governments; (2) reduce the reporting burden on local governments that
apply for reimbursement; and (3) speed up the review and payment of
funds to eligible applicants. Therefore, EPA is revising this
regulation to ease several program and reporting requirements and to
simplify the procedures that local governments follow when applying for
reimbursement.
V. Did EPA Get Input From Local Governments in Making Changes to This
Regulation?
Yes. Through consultation, training and outreach, EPA obtained
input from local government officials who have participated in the
reimbursement process. This input has given EPA a greater understanding
of the difficulties that local governments encounter when seeking
reimbursement which may discourage overall participation in the
reimbursement program.
[[Page 8285]]
VI. Why Is EPA Issuing an Interim Final Rule for These Changes?
Because this rule falls under the grants, benefits, and contracts
exemption of Section 553 of the Administrative Procedures Act (5 U.S.C.
553(a)(2)), the Agency is not required to solicit public comment before
this rule becomes effective. In addition, the Agency may make the rule
effective immediately upon publication.
The interim final approach is designed to allow EPA to implement
these changes and to make the reimbursement money available quickly,
while continuing to solicit public comments. Public comments are
invited and should be sent to the address listed in the ADDRESSES
section above. Comments received by April 20, 1998 will be considered
in the final rule.
VII. What Is EPA Changing in This Regulation?
Based on the Agency's experience in overseeing the reimbursement
program and its ongoing consultation with local governments, EPA is
making the following substantive changes to the 1993 Final Rule:
(1) Section 310.5 has been modified to clarify the purpose of the
regulations and the possibility that funds may not be available in a
particular year;
(2) Section 310.10 has been modified to include several
abbreviations;
(3) Section 310.11 has been modified to include definitions of the
terms application, Federally-recognized Indian tribes, and potentially
responsible parties;
(4) Section 310.25(a) has been added to specify remedies EPA may
rely on if incorrect, false or misleading information is submitted with
an application for reimbursement;
(5) Section 310.20 has been modified for clarification purposes;
(6) Section 310.30 has been changed to ease the program and
reporting requirements for requesting reimbursement;
(7) Section 310.40 has been changed to clarify allowable costs and
to streamline the cost documentation requirements;
(8) Section 310.50 has been changed to reduce the reporting
requirements and to clarify the application signature authority;
(9) Section 310.60 has been changed to:
(a) streamline and clarify the application evaluation process
(including the Agency's approach when there are competing demands on
available reimbursement funds);
(b) extend the time periods for applicants to provide additional
information to EPA to support their applications; and
(c) give applicants an opportunity to request exceptions to the
requirements when there is good cause;
(10) Section 310.70 has been changed to reduce applicant record
keeping requirements from ten years to three;
(11) Section 310.80 has been incorporated into Section 310.60 for
organizational purposes; and
(12) Section 310.90 has been renumbered and modified to clarify the
disputes resolution process.
VIII. What Else Is Different?
EPA reorganized the entire Part 310 to make it clearer and easier
to use. The conversion table below will allow you to determine where
the various sections of the old regulation are now located:
------------------------------------------------------------------------
Existing section Action New section(s)
------------------------------------------------------------------------
310.5................. Revise................ 310.1, 310.5, 310.6.
310.10................ Revise................ 310.4.
310.11................ Revise................ 310.3.
310.12................ Revise................ 310.24.
310.20................ No change............. 310.5, 310.6.
310.30................ Revise................ 310.11, 310.13, 310.14,
310.17.
310.40................ Revise................ 310.11, 310.12, 310.16.
310.50................ Revise................ 310.7, 310.8, 310.9,
310.10, 310.15, 310.17.
310.60................ Revise................ 310.18, 310.19, 310.20,
310.23, 310.24.
310.70................ Revise................ 310.22.
310.80................ Revise................ 310.23.
310.90................ Revise................ 310.65.
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IX. Regulatory Analyses
A. Executive Order No. 12866
Under Executive Order No. 12866, EPA must judge whether a
regulation is ``major'' and thus would be subject to the requirement of
a Regulatory Impact Analysis. The Agency believes that the notice
published today does not meet the definition of a significant
regulation because it does not have an annual effect on the economy of
$100 million or more; nor does the rule fall within the other
definitional criteria for a significant regulatory action because the
rule eases program and reporting requirements. Therefore, EPA has not
prepared a Regulatory Impact Analysis under the Executive Order. OMB
did not review this rule because it is not significant.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally requires an agency to prepare, and make available
for public comment, a regulatory flexibility analysis that describes
the impact of a proposed or final rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant adverse impact
on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
This regulation involves reimbursement to local governments for the
costs of responding to a hazardous substance release. This is a benefit
authorized by CERCLA and does not adversely affect the private sector
economy or small entities, which may include local governments. In
fact, this rule provides a benefit to local governments in the form of
reimbursement to offset financial hardship incurred from responses to
hazardous substances, pollutants or contaminants. The revisions to this
regulation are intended to minimize the burden imposed on local
governments in seeking this benefit. EPA, therefore, certifies that
this regulation will not have a significant impact on a substantial
number of small entities.
C. Paperwork Reduction Act
OMB has approved the original information collection requirements
contained in this rule under the provisions of the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.) and assigned control number 2050-0077.
The revised information collection requirements in this rule was
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No.1425.04) and a copy may be obtained from Sandy Farmer by mail
at OPPE Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 401 M St., S.W.; Washington, DC 20460, by email at
farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may
also be downloaded off the internet at http://www.epa.gov/icr. The
information
[[Page 8286]]
requirements are not effective until OMB approves them.
The Agency requires applicants for reimbursement to submit an
application package that demonstrates consistency with program
eligibility criteria and certifies compliance with the reimbursement
requirements. This information collection is necessary to ensure proper
use of the Superfund and appropriate distribution of reimbursement
awards among applicants. EPA will receive and closely evaluate
reimbursement requests in accordance with the promulgated final rule to
ensure that the most deserving cases receive awards. We estimate the
public reporting burden for this collection of information to average 9
hours per response, including time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information. We
estimate we will receive 36 responses per year for an annual burden
estimate of 324 hours per year.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques to the Director, OPPE Regulatory
Information Division; U.S. Environmental Protection Agency (2137); 401
M St., S.W.; Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th St.,
N.W., Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Comments are requested by March 20, 1998. Include the ICR number in any
correspondence.
D. Small Business Regulatory Enforcement Fairness Act
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register . This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Unfunded Mandates Reform Act
``Today's rule is not subject to the requirements of sections 202,
203 and 205 of the UMRA. EPA has determined that this rule does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. On the contrary, the
Agency expects that today's rule will ease program and reporting
requirements for local governments so that reimbursement is more
accessible.
In addition, the Agency does not believe that today's rule is
subject to section 203 of the UMRA to the extent that today's rule
simplifies the application process for local governments and does not
impose additional regulatory requirements. Indeed, today's rule is
being promulgated in response to a long standing request by local
governments after substantial input from such local governments into
the rule's development.''
List of Subjects in 40 CFR Part 310
Environmental protection, Administrative practice and procedure,
Hazardous substances, Incorporation by reference, Intergovernmental
relations, Local governments, Reporting and recordkeeping requirements,
Superfund.
Dated: January 27, 1998.
Carol Browner,
Administrator.
For the reasons set out in the preamble, EPA amends title 40,
chapter I of the Code of Federal Regulations by revising part 310 to
read as follows:
PART 310--REIMBURSEMENT TO LOCAL GOVERNMENTS FOR EMERGENCY RESPONSE
TO HAZARDOUS SUBSTANCE RELEASES
Subpart A--General Information
Sec.
310.1 What is the purpose of this part?
310.2 What is the statutory authority for this part?
310.3 What terms have specific definitions?
310.4 What abbreviations should I know?
Subpart B--Provisions
Who Can Be Reimbursed
310.5 Am I eligible for reimbursement?
310.6 Are states eligible?
310.7 Can more than one local agency or government be reimbursed
for response to the same emergency?
What Can Be Reimbursed
310.8 Can EPA reimburse the entire cost of my response?
310.9 If more than one local agency or government is involved, can
each receive up to $25,000?
310.10 What are temporary emergency measures?
310.11 What costs are allowable?
310.12 What costs are NOT allowable?
How to Get Reimbursed
310.13 Do I need to notify anyone while the response is underway?
310.14 Must I try to recover my costs from those potentially
responsible for the emergency?
310.15 How do I apply for reimbursement?
310.16 What kind of cost documentation is necessary?
310.17 Are there any other requirements?
310.18 How will EPA evaluate my application?
310.19 Under what conditions would EPA deny my request?
310.20 What are my options if EPA denies my request?
310.21 How does EPA resolve disputes?
Other Things You Need to Know
310.22 What records must I keep?
310.23 How will EPA rank approved requests?
310.24 What happens if I provide incorrect or false information?
Appendices to Part 310
Appendix I to Part 310--FREQUENTLY ASKED QUESTIONS
Appendix II to Part 310--EPA Regions and NRC Telephone Lines
Appendix III to Part 310--FORM: Application for Reimbursement to
Local Governments for Emergency Response to Hazardous Substance
Release Under CERCLA Sec. 123
Authority: 42 U.S.C. 9611(c)(11), 9623.
Subpart A--General Information
Sec. 310.1 What is the purpose of this part?
This part sets up procedures for EPA to reimburse local governments
for certain emergency response costs. Local
[[Page 8287]]
governments may receive up to $25,000 to help lighten financial burdens
related to emergency response to hazardous substance releases. This
reimbursement does NOT replace funding that local governments normally
provide for emergency response.
Sec. 310.2 What is the statutory authority for this part?
This part is authorized under section 123 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) (Pub. L. 96-510, 42 U.S.C. 9601-9675), as amended by the
Superfund Amendments and Reauthorization Act of 1986 (SARA) (Pub. L.
99-499, 42 U.S.C. 9601).
Sec. 310.3 What terms have specific definitions?
For purposes of this part except when otherwise specified:
(a) Application means Form 9310-1, shown in Appendix III of this
part, including all documentation and additional information you submit
to support a request for reimbursement.
(b) Date of completion means the date when you have completed all
field work and you have received all deliverables (such as lab results,
technical expert reports, or invoices) due under a contract or other
agreement.
(c) Emergency Planning and Community Right-to-Know Act of 1986
means Title III--Emergency Planning and Community Right-to-Know Act of
the Superfund Amendments and Reauthorization Act of 1986 (EPCRA) (Pub.
L. 99-499, 42 U.S.C. 11000-11050).
(d) Federally-recognized Indian Tribe, as defined by section
101(36) of CERCLA, means any Indian Tribe, band, nation, or other
organized group or community, including any Alaska Native village but
not including any Alaska Native regional or village corporation, which
is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
(e) General purpose unit of local government means the governing
body of a county, parish, municipality, city, town, township,
Federally-recognized Indian tribe or similar governing body. This term
does not include special purpose districts.
(f) Hazardous substance. (1) Hazardous substance, as defined by
section 101(14) of CERCLA, means:
(i) Any substance designated pursuant to section 311(b)(2)(A) of
the Federal Water Pollution Control Act (Pub. L. 101-380, 33 U.S.C.
1251 et seq.);
(ii) Any element, compound, mixture, solution, or substance
designated pursuant to section 102 of CERCLA;
(iii) Any hazardous waste having the characteristics identified
under or listed pursuant to section 3001 of the Solid Waste Disposal
Act (Pub. L. 89-272, 42 U.S.C. 3259 et seq.) (but not including any
waste the regulation of which under the Solid Waste Disposal Act has
been suspended by Act of Congress);
(iv) Any toxic pollutant listed under section 307(a) of the Federal
Water Pollution Control Act (Pub. L. 101-380, 33 U.S.C. 1251 et seq.);
(v) Any hazardous air pollutant listed under section 112 of the
Clean Air Act (42 U.S.C. 7401-7642); and
(vi) Any imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action pursuant to section
7 of the Toxic Substances Control Act (Pub. L. 94-469, 15 U.S.C. 2601-
2629).
(2) The term does not include petroleum, including crude oil or any
fraction thereof that is not otherwise specifically listed or
designated as a hazardous substance under paragraphs (f)(1)(i) through
(f)(1)(vi) of this section, and the term does not include natural gas,
natural gas liquids, liquefied natural gas, or synthetic gas usable for
fuel (or mixtures of natural gas and such synthetic gas).
(g) Local emergency response plan means the emergency plan prepared
by the Local Emergency Planning Committee (LEPC) as required by section
303 of the Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA or SARA Title III).
(h) National Contingency Plan means the National Oil and Hazardous
Substances Pollution Contingency Plan (40 CFR part 300).
(i) National Response Center means the national communications
center located in Washington, DC, that receives and relays notice of
oil discharge or releases of hazardous substances to appropriate
Federal officials.
(j) Pollutant or contaminant, as defined by section 104(a)(2) of
CERCLA, includes, but is not limited to, any element, substance,
compound, or mixture, including disease-causing agents, which after
release into the environment and upon exposure, ingestion, inhalation,
or assimilation into any organism, either directly from the environment
or indirectly by ingestion through food chains, will or may reasonably
be anticipated to cause death, disease, behavioral abnormalities,
cancer, genetic mutation, physiological malfunctions (including
malfunctions in reproduction) or physical deformations, in such
organisms or their offspring. The term does not include petroleum,
including crude oil and any fraction thereof that is not otherwise
specifically listed or designated as a hazardous substance under
section 101(14)(A) through (F) of CERCLA, nor does it include natural
gas, liquefied natural gas, or synthetic gas of pipeline quality (or
mixtures of natural gas and such synthetic gas).
(k) Potentially responsible party (PRP) means any person who may be
liable under section 107 of CERCLA for a release or threatened release
of hazardous substances or pollutants or contaminants.
(l) Release, as defined by section 101(22) of CERCLA, means any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injection, escaping, leaching, dumping, or disposing into the
environment, but excludes: any release that results in exposure to
persons solely within a workplace, with respect to a claim that such
persons may assert against the employer of such persons; emissions from
the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel,
or pipeline pumping station engine; release of source, by-product or
special nuclear materials from a nuclear incident, as those terms are
defined in the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), if
such release is subject to requirements with respect to financial
protection established by the Nuclear Regulatory Commission under
section 170 of such act, or, for the purpose of section 104 of CERCLA
or any other response action, any release of source, by-product, or
special nuclear material from any processing site designated under
section 122(a)(1) or 302(a) of the Uranium Mill Tailings Radiation
Control Act of 1978 (Pub. L. 95-604, 42 U.S.C. 2014 et seq.); and the
normal application of fertilizer. For purposes of this part, release
also means the threat of release.
(m) Single response means all of the concerted activities conducted
in response to a single episode, incident, or threat causing or
contributing to a release or threatened release of hazardous
substances, or pollutants or contaminants.
Sec. 310.4 What abbreviations should I know?
The following abbreviations appear in this part:
CERCLA--The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (Pub. L. 96-510, 42 U.S.C. 9601-9675), as
amended by the Superfund Amendments and Reauthorization Act of 1986,
also known as Superfund.
[[Page 8288]]
EPA or the Agency--Environmental Protection Agency.
EPCRA--Emergency Planning and Community Right-to-Know Act of 1986
(Pub. L. 99-499, 42 U.S.C. 11000-11050).
LEPC--Local Emergency Planning Committee.
NCP--National Oil and Hazardous Substances Pollution Contingency
Plan also known as the National Contingency Plan (40 CFR part 300).
NRC--National Response Center.
OMB--Office of Management and Budget.
PRP--Potentially Responsible Party.
SARA--The Superfund Amendments and Reauthorization Act of 1986 (Pub.
L. 99-499, 42 U.S.C. 9601).
SERC--State Emergency Response Commission.
USCG--U.S. Coast Guard.
Subpart B--Provisions
Who Can Be Reimbursed?
Sec. 310.5 Am I eligible for reimbursement?
If you are the governing body of a county, parish, municipality,
city, town, township, federally-recognized Indian tribe or general
purpose unit of local government, you are eligible for reimbursement.
This does not include special purpose districts.
Sec. 310.6 Are states eligible?
States are NOT eligible for reimbursement under this part, and
states may NOT request reimbursement on behalf of their local
governments.
Sec. 310.7 Can more than one local agency or government be reimbursed
for response to the same incident?
No. EPA will accept only one reimbursement request for a single
response. A single response includes all of the temporary emergency
measures that ALL local governments or agencies conduct in response to
a single hazardous substance release. If more than one local government
or agency responds, you must decide among yourselves who will request
reimbursement on behalf of all.
What Can Be Reimbursed?
Sec. 310.8 Can EPA reimburse the entire cost of my response?
Possibly not. EPA can only reimburse you for temporary emergency
measures you take in response to releases of hazardous substances,
pollutants, or contaminants. The statute allows reimbursement for only
certain costs, and by statute, the total amount of the reimbursement
may not exceed $25,000 for a single response.
Sec. 310.9 If more than one local agency or government is involved,
can each receive up to $25,000?
No. The maximum amount EPA can reimburse is $25,000 for a single
response, which includes all activities by ALL local responders. If the
costs incurred by multiple local governments or agencies exceed
$25,000, you must decide among yourselves how the total reimbursement
will be divided.
Sec. 310.10 What are temporary emergency measures?
(a) Temporary emergency measures are actions taken to control or
eliminate immediate threats to human health and the environment.
(b) Examples of temporary emergency measures are:
(1) Site security;
(2) Controlling the source of contamination;
(3) Containing the release to prevent spreading;
(4) Neutralizing or treating pollutants released; and
(5) Controlling contaminated runoff.
Sec. 310.11 What costs are allowable?
(a) Reimbursement under this part does NOT supplant funds you
normally provide for emergency response. Allowable costs are only those
necessary for you to respond effectively to a specific incident that is
beyond what you might normally respond to.
(b) Examples of allowable costs are:
(1) Disposable materials and supplies you acquired and used to
respond to the specific incident;
(2) Payment of unbudgeted wages for employees responding to the
specific incident (for example, overtime pay for response personnel);
(3) Rental or leasing of equipment you used to respond to the
specific incident (for example, protective equipment or clothing,
scientific and technical equipment) (Note: rental costs are only
allowable for the duration of your response; once you complete the
response to the specific incident, further rental costs are NOT
allowable);
(4) Replacement costs for equipment you own that is contaminated or
damaged beyond reuse or repair, if you can demonstrate that the
equipment is a total loss and that the loss occurred during the
response (for example, self-contained breathing apparatus irretrievably
contaminated during the response);
(5) Decontamination of equipment contaminated during the response;
(6) Special technical services specifically required for the
response (for example, costs associated with the time and efforts of
technical experts/specialists that are not on your staff);
(7) Other special services specifically required for the response
(for example, utilities);
(8) Laboratory costs of analyzing samples that you took during the
response;
(9) Evacuation costs associated with the services, supplies, and
equipment that you procured for a specific evacuation; and
(10) Containerization or packaging cost and transportation and
disposal of hazardous wastes.
(c) To be allowable, costs must:
(1) NOT be higher than what a careful person would spend for
similar products or services in your area; and
(2) Be consistent with CERCLA and the federal cost principles
outlined in OMB Circular A-87, ``Cost Principles for State and Local
Governments.'' (Copies of the circular are available from the Office of
Administration, Publications Office, New Executive Office Building, 725
17th Street, NW., Room 2200, Washington, DC 20503.)
(d) EPA will make final determinations on whether your costs are
reasonable.
Sec. 310.12 What costs are NOT allowable?
(a) Costs that are NOT allowable are expenditures you incur in
providing what are traditionally local services and responsibilities.
Examples include:
(1) Routine firefighting;
(2) Preparing contingency plans;
(3) Training; and
(4) Response drills and exercises.
(b) Costs that are NOT allowable also include items such as
supplies, equipment, and services that you routinely purchase to
maintain your ability to respond effectively to hazardous releases when
they occur. Examples of other costs that are NOT allowable are:
(1) Purchase or routine maintenance of durable equipment expected
to last one year or more, except when contaminated or damaged as
described in Sec. 310.11(b)(4) and (b)(5);
(2) Materials and supplies you did NOT purchase specifically for
the response;
(3) Rental costs for equipment that you own or that another unit of
local government owns;
(4) Employee fringe benefits;
(5) Administrative costs for filing reimbursement applications;
(6) Employee out-of-pocket expenses normally provided for in your
operating budget (for example, meals or fuel);
(7) Legal expenses you may incur due to response activities,
including efforts to recover costs from PRPs; and
(8) Medical expenses you incur due to response activities.
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How to get Reimbursed
Sec. 310.13 Do I need to notify anyone while the response is underway?
No. You should notify EPA, the National Response Center, or use
another established response communication channel, but it is not a
requirement for reimbursement. Telephone numbers for EPA regional
offices and the NRC are in Appendix II to this part.
Sec. 310.14 Must I try to recover my costs from those potentially
responsible for the emergency?
Yes. Before applying for reimbursement from EPA, you must try to
recover your costs from all known potentially responsible parties
(PRPs). After you ask them for payment, you should give PRPs 60 days
either to pay you, express their intent to pay you, or indicate
willingness to negotiate. You must also try to get reimbursed by other
sources (for example, your insurance company or your state). If you are
not successful, you must certify on your reimbursement application that
you made a good-faith, reasonable effort to recover your costs from
other sources before applying to EPA. If you recover any portion of the
costs from these sources after you receive reimbursement from us, you
must return the recovered amount to EPA.
Sec. 310.15 How do I apply for reimbursement?
(a) You must apply for reimbursement on EPA Form 9310-1, shown in
Appendix III to this part.
(b) You must submit your request within one year of the date you
complete the response for which you request reimbursement. If you
submit your application late, you must include an explanation for the
delay. We will consider late applications on a case-by-case basis.
(c) Your application must be signed by the highest ranking official
of your local government (for example, mayor or county executive), or
you must include a letter of delegation authorizing a delegate to act
on his or her behalf.
(d) Mail your completed application and supporting data to the LGR
Project Officer, (5204-G), Office of Emergency and Remedial Response,
Environmental Protection Agency, 401 M Street SW, Washington DC 20460.
Sec. 310.16 What kind of cost documentation is necessary?
Cost documentation must be adequate for an audit. At a minimum, you
must:
(a) Include a description of the temporary emergency measures for
which you request reimbursement;
(b) Specify the local agency that incurred the cost, (such as, the
Town Fire Department, the County Health Department, or the City
Department of Public Works);
(c) Include invoices, sales receipts, rental or leasing agreements,
or other proof of costs you incurred; and
(d) Certify that all costs are accurate and that you incurred them
specifically for the response for which you are requesting
reimbursement.
Sec. 310.17 Are there any other requirements?
(a) You must certify that reimbursement under this regulation does
not supplant local funds that you normally provide for emergency
response. This means that the reimbursement you request is for costs
you would not normally incur; rather, they are for significant,
unanticipated costs related to a specific incident beyond what you
normally respond to.
(b) You must also certify that your response actions are not in
conflict with CERCLA, the National Contingency Plan (NCP), and the
local emergency response plan prepared by your Local Emergency Planning
Committee, if there is one. If you need help with this requirement,
contact the LGR Help line (800-431-9209) or your EPA regional office.
(c) You, as a local government, should be included in the local
emergency response plan completed by your LEPC, as section 303(a) of
EPCRA requires. This does not apply if your State Emergency Response
Commission (SERC) has not established an LEPC responsible for the
emergency planning district(s) that encompasses your geographic
boundaries.
Sec. 310.18 How will EPA evaluate my application?
(a) When we receive your application, we will make sure it meets
all requirements of this section. If your request is incomplete or has
significant defects, we will contact you for additional information.
You should provide any additional information within 90 days. If you
don't provide requested information within a year, we may deny your
application.
(b) If your application meets all requirements, we will consider
whether the costs claimed are allowable and reasonable. We will then
send you written notification of our decision to award or deny
reimbursement in full or in part.
Sec. 310.19 Under what conditions would EPA deny my request?
We may deny your reimbursement request in full or in part if:
(a) Your records, documents, or other evidence are not maintained
according to generally accepted accounting principles and practices
consistently applied;
(b) The costs you claim are NOT reasonable or allowable, that is,
they are higher than what a careful person would spend for similar
products or services in your area; or
(c) You do not supply additional information within one year from
when we request it; and
(d) Reimbursement would be inconsistent with CERCLA section 123, or
the regulations in this part.
Sec. 310.20 What are my options if EPA denies my request?
If we deny your request because you failed to meet a requirement in
this regulation, you may request, in writing, that EPA grant an
exception. You may also file a request for an exception with your
initial application. In your request for an exception, you must state
the requirement you cannot comply with and the reasons why EPA should
grant an exception. We will grant exceptions only if you establish good
cause for the exception and if granting the exception would be
consistent with section 123 of CERCLA.
Sec. 310.21 How does EPA resolve disputes?
(a) The EPA reimbursement official's decision is final EPA action
unless you file a request for review by registered or certified mail
within 60 calendar days of the date you receive our decision. Send your
request for review to the address given in Sec. 310.15(d).
(b) You must file your request for review with the disputes
decision official identified in the final written decision.
(c) Your request for review must include:
(1) A statement of the amount you dispute;
(2) A description of the issues involved;
(3) A statement of your objection to the final decision; and
(4) Any additional information relevant to your objection to EPA's
decision.
(d) After filing for review:
(1) You may request an informal conference with the EPA disputes
decision official;
(2) You may be represented by counsel and may submit documentary
evidence and briefs to be included in a written record; and
(3) You will receive a written decision by the disputes decision
official within 45 days after we receive your final submission of
information unless the
[[Page 8290]]
official extends this period for good cause.
Other Things You Need To Know
Sec. 310.22 What records must I keep?
(a) If you receive reimbursement under the regulations in this
part, for three years you must keep all cost documentation and any
other records related to your application. You must also provide EPA
access to those records if we need them.
(b) After three years from the date of your reimbursement, if we
have NOT begun a cost recovery action against a potentially responsible
party, you may dispose of the records. You must notify EPA of your
intent to dispose of the records 60 days before you do so, and allow us
to take possession of these records beforehand.
Sec. 310.23 How will EPA rank approved requests?
(a) If necessary, EPA will rank approved reimbursement requests
according to the financial burden the response costs impose on the
local governments. We will estimate your financial burden by
calculating the ratio of your allowable response costs to your annual
per capita income adjusted for population. We will make adjustments for
population so that a large city with a low per capita income will not
necessarily receive a higher rank than a small town with a slightly
higher per capita income. We will also consider other relevant
financial information you may supply.
(b) We will use the per capita income and population statistics
published by the U.S. Department of Commerce, Bureau of the Census, in
Current Population Reports, Local Population Estimates, Series P-26,
``1988 Population and 1987 Per Capita Income Estimates for Counties and
Incorporated Places,'' Vols. 88-S-SC, 88-ENC-SC, 88-NE-SC, 88-W-SC, 88-
WNC-SC, March 1990. The Director of the Federal Register has approved
this incorporation by reference in accordance with 5 U.S.C. 552(a) and
1 CFR Part 51. Copies are available from the Bureau of the Census,
Office of Public Affairs, Department of Commerce, Constitution Avenue,
NE., Washington, DC 20230 (1-202-763-4040). You may review a copy at
the U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC 20460 or at the Office of the Federal Register, 800 N.
Capitol Street, NW., 7th Floor, Suite 700, Washington, DC.
(c) Larger ratios receive a higher rank. We will reimburse requests
with the highest ranks first. Once we rank your request, we will
either:
(1) Reimburse the request; or
(2) Hold the request for reconsideration once additional funding is
available.
(d) The EPA reimbursement official will give you a written decision
on whether the request will be reimbursed or held for future
reconsideration.
Sec. 310.24 What happens if I provide incorrect or false information?
(a) You must not knowingly or recklessly make any statement or
provide any information in your reimbursement application that is
false, misleading, misrepresented, or misstated. If you do provide
incorrect or false information, and EPA relies on that information in
making a reimbursement decision, we may deny your application and
withdraw or recover the full amount of your award. In such a case, we
would give you written notice of our intentions.
(b) If you, as a reimbursement applicant or someone providing
information to the applicant, knowingly give any false statement or
claim as part of any application for reimbursement under section 123 of
CERCLA, you may be subject to criminal, civil, or administrative
liability under the False Statement Act (Pub. L. 97-398, 18 U.S.C.
1001) the False Claims Act (Pub. L. 99-562, 31 U.S.C. 3729), and the
Program Fraud and Civil Remedies Act (Pub. L. 99-509, 31 U.S.C. 3801).
Appendices to Part 310
Appendix I to Part 310--Frequently Asked Questions
(1) Can I be reimbursed for hazmat team salaries?
Generally, no; only unbudgeted overtime and/or extra time can be
considered for reimbursement. (Sec. 310.11(b)(2))
(2) Will I be reimbursed for the cost of a destroyed fire truck?
Up to $25,000 of the cost of a lost fire truck can be considered
an allowable cost and therefore, reimbursable. However, if the local
government has insurance covering such losses, then we would not
reimburse you for a destroyed fire truck. (Secs. 310.11(b)(4) and
310.14)
(3) If I have a release in an elementary school, can the school
district apply for reimbursement?
No, for purposes of the regulation in this part, a school
district is considered a special purpose district of local
government and therefore not eligible for reimbursement. The county
or city where the incident happened may apply for reimbursement on
behalf of the school district. (Secs. 310.03(e) and 310.05)
(4) Why are incidents that involve a release of petroleum not
eligible?
Because this program is authorized under CERCLA, and petroleum
is excluded under CERCLA, we can't reimburse you for response to
releases involving only petroleum. If, however, some hazardous
substances are also involved, your incident may be reimbursed.
(Sec. 310.03(f))
(5) Can I be reimbursed for laying water lines to a community
whose drinking water is affected by a release?
No, laying water lines doesn't fall within the definition of
temporary emergency measures. Providing bottled water on a temporary
emergency basis is reimbursable. (Sec. 310.10(a))
(6) What if EPA gets too many applications in one year?
In the beginning of the program, there was a statutory
limitation on the amount of the Superfund that could be used for
reimbursements. That limitation was approximately $1,000,000. The
limitation has expired, and EPA has only reimbursed slightly over
$1,000,000 in ten years. There has not been a year where we received
too many applications.
(7) If I incur significant costs trying to recover from the PRP,
can I be reimbursed by EPA for those costs?
No, legal expenses are not allowable costs. (Sec. 310.12(b)(7)).
(8) Can I add attachments to the Application Form?
Yes, attach any additional information that you feel is
necessary. EPA will review all the information that you send.
(9) Do I have to notify EPA before I send an application in, or
before I take a response action?
No, you aren't required to notify EPA in either case. We do
suggest that you call the National Response Center to report the
hazardous substance release, or if you use other response reporting
channels, use them. If you need some help before submitting your
application, we do suggest you call the LGR Help line (800-431-
9209).
(10) If two incidents happen in my town, within hours of each
other, do I have to submit two separate applications?
You aren't required to submit separate applications in this
case, but if your total response costs are more than $25,000, it may
be in your interest to submit separate applications for each single
response. (Sec. 310.9)
Appendix--II to Part 310--EPA Regions and NRC Telephone Lines
------------------------------------------------------------------------
------------------------------------------------------------------------
National Response Center............................. (800) 424-8802
EPA Regional Phone Numbers:
Region I (ME, NH, VT, MA, RI, CT).................. (617) 223-7265
Region II (NJ, NY, PR, VI)......................... (908) 548-8730
Region III (PA, DE, MD, DC, VA, WV)................ (215) 597-9898
Region IV (NC, SC, TN, MS, AL, GA, FL, KY)......... (404) 347-4062
Region V (OH, IN, IL, WI, MN, MI).................. (312) 353-2318
Region VI (AR, LA, TX, OK, NM)..................... (215) 655-2222
Region VII (IA, MO, KS, NE)........................ (913) 236-3778
Region VIII (CO, UT, WY, MT, ND, SD)............... (303) 293-1788
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Region IX (AZ, CA, NV, AS, HI, GU, TT)............. (415) 744-2000
Region X (ID, OR, WA, AK).......................... (206) 553-1263
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Appendix--III to Part 310--Form: Application for Reimbursement to
Local Governments for Emergency Response to Hazardous Substance
Release Under CERCLA Sec. 123
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Attachment 1 to Form 9310-1 Cost Element Codes and Comments
[Cost Element Codes for use in Table 1]
----------------------------------------------------------------------------------------------------------------
Code Cost category Cost element Comments
----------------------------------------------------------------------------------------------------------------
PC..................... Personnel Compensation............. PC1: Overtime--for Compensation of overtime
services excess of the costs incurred
local agency's standard specifically for a
work day or work week. response will be
PC2: Experts and considered only if
consultants--for overtime is not
services rendered on a otherwise provided for
per diem or fee basis in the applicant's
or for services of an operating budget.
intermittent, advisory
nature.
TR..................... Transportation..................... TR1: Passenger vehicle Passenger and
rental--for nonpassenger vehicle
transportation of rental costs will be
persons during considered for private
evacuation. vehicles not owned or
TR2: Nonpassenger operated by the
vehicle rental--for applicant or other unit
transportation of of local government.
equipment or supplies.
RC..................... Utilities.......................... RC1: Utilities--for Utility costs will be
power, water, considered for private
electricity and other utilities not owned or
services exclusive of operated by the
transportation and applicant or other unit
communications. of local government.
OS..................... Other Contractual Services......... OS1: Contracts for May include such items
technical or scientific as specialized
analysis--for tasks laboratory analyses and
requiring specialized sampling.
hazardous sustance
response expertise.
OS2: Decontamination
services--for
specialized cleaning or
decontamination
procedures and supplies
to restore clothing,
equipment or other
serviceable gear to
normal functioning.
SM..................... Supplies and Materials............. SM1: Commodities--for May include such items
protective gear and as chemical foam to
clothing, cleanup tools suppress a fire; food
and supplies and purchased specifically
similar materials for an evacuation; air
purchased specifically purifying canisters for
for, and expended breathing apparatus;
during, the response. disposable, protective
suits and gloves; and
sampling supplies.
EQ..................... Equipment.......................... EQ1: Replacement--for Equipment replacement
durable equipment costs will be
declared a total loss considered if applicant
as a result of can demonstrate total
contamination during loss and proper
the response. disposal of
EQ2: Rents--for use of contaminated equipment.
equipment owned by Equipment rental costs
others. will be considered for
privately owned
equipment not owned or
operated by the
applicant or other unit
of local government.
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[FR Doc. 98-2716 Filed 2-17-98; 8:45 am]
BILLING CODE 6560-50-C
