Memorandum

PURPOSE

The purpose of this memorandum is to withdraw the proposal entitled "Final Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) concerning State Voluntary Cleanup Programs." EPA's objective for this initiative, as stated in the February 13, 1995, Superfund Reforms Announcement memorandum is the following: "To issue guidance which promotes State/Tribal voluntary cleanup programs, encourages other States and Tribes to create such programs, and, in conjunction with the Brownfields Initiative, authorizes limited financial assistance to such programs." A review of the 78 comments submitted to the docket for this draft guidance and results of other outreach efforts to stakeholders makes it clear that the proposed final draft guidance does not meet our objective, nor address the needs of many of the affected stakeholders.

Based on these comments and the lengthy discussions we have had on this issue, it is also clear that there is currently no consensus among various stakeholders on critical aspects of the guidance or on the appropriate course of action for EPA. We appreciate the discussions that went into the creation of draft guidance for the development of State voluntary cleanup program (VCP) memoranda of agreement, and the hard work of many individuals who sincerely sought to create a workable guidance that would meet the objectives of all parties. EPA's objective in developing the guidance was that the MOAs with State voluntary cleanup programs would be intended to address primarily the cleanup of lower risk sites and to streamline the process for cleaning up these sites. Many commentors stated that the proposed guidance neither addressed the EPA objective nor did it streamline the cleanup process. In consideration of the range of views of the stakeholders, it does not seem likely that the Agency could issue a final guidance in a timely manner. We, therefore, have decided to withdraw the final draft guidance that was published in the Federal Register on September 9, 1997.

IMPLEMENTATION

We ask you to continue to work with your States to accomplish EPA's goals in this area, which are:

• To support effective State voluntary cleanup programs consistent with the November 14, 1996, memorandum referenced below.
• To support protective cleanup and sustainable redevelopment of Brownfields sites.
• To ensure successful implementation of the Brownfields tax incentive.

EPA/State memoranda of agreement concerning voluntary cleanup programs continue to be a good way for EPA to promote effective programs and their success. To date, EPA has signed MOAs with eleven States. These MOAs remain in effect.

For negotiation of future MOAs, Regions should look to the November 14, 1996, memorandum (attached) from the Assistant Administrators of the Office of Solid Waste and Emergency Response and the Office of Enforcement and Compliance Assurance (entitled "Interim Approaches for Regional Relations for State Voluntary Cleanup Programs") as a framework for these negotiations. We ask you to continue the existing process of negotiating future individual MOAs on a case-by-case basis. To avoid unnecessary delays, OSWER and OECA will work closely with the Regions to consider State proposals related to the six basic criteria, site eligibility (i.e., primarily lower risk sites) and comfort. The concurrence of the OSWER and OECA Assistant Administrators will be required for new MOAs.

RELATED INITIATIVES

In addition to negotiation of MOAs with States, we believe that funding for infrastructure is key to development of State voluntary cleanup programs. In FY97, EPA obtained Administration and Congressional support for infrastructure funding to support the development and/or enhancement of effective State voluntary cleanup programs. In FY97, EPA provided 45 States and Tribes with $9.7 million in funding for support of voluntary cleanup programs. EPA's FY 98 budget is $15 million for VCP infrastructure support. You are encouraged to provide this funding to States to support the development and enhancement of effective voluntary cleanup programs.
Finally, on August 5, 1997, President Clinton signed the Taxpayer Relief Act, which included a new tax incentive to spur the cleanup and redevelopment of brownfields in distressed urban and rural areas. Under the Brownfields Tax Incentive, environmental cleanup costs for properties in targeted areas are fully deductible in the year in which they are incurred, rather than having to be capitalized. The taxpayer must get a certification from the state environmental agency that his or her property is in a targeted area. EPA's support of State voluntary cleanup programs will help States develop mechanisms for State certification of the Brownfields area designated in the Taxpayer Relief Act.

NEXT STEPS

As EPA and States move forward in the negotiation of new MOAs with existing and future State voluntary cleanup programs, we will continue a dialogue with affected stakeholders on the development and enhancement of effective State voluntary cleanup programs and the State and Federal roles in maximizing appropriate cleanup of contaminated sites.

Attachment

cc: Lois Schiffer, DOJ
Mike Shapiro, OSWER
Sylvia Lowrance, OSWER
Cliff Rothenstein, OSWER
Steve Luftig, OSWER
Barry Breen, OECA
Bruce Gelber, DOJ
Linda Boornazian, OECA
Linda Garczynski, OSWER
Superfund National Policy Managers, Regions 1-10
Regional Counsels, Regions 1-10
Lisa Friedman, OGC
Earl Salo, OGC
Ann McDonough, OSWER
Randy Hippen, OSWER
Beau Mills, OSWER
Steve Caldwell, OSWER
Lori Boughton, OECA
Bruce Pumphrey, OECA
Leslie Jones, OECA
Matt Hale, OSW
Elizabeth McManus, OSW
Karen Kraus, OGC
Brownfields Coordinators, Regions 1-10