[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)]
[Notices]
[Pages 55298-55302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27156]



[[Page 55298]]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5638-7]


Revised Guidance on Procedures for Submitting CERCLA Section 
106(b) Reimbursement Petitions and on EPA Review of Those Petitions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Issuance of revised guidance document.

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SUMMARY: During June 1994, EPA's Environmental Appeals Board (Board) 
issued guidance regarding the procedures for submission and review of 
petitions for reimbursement under section 106(b)(2) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (CERCLA), 42 U.S.C. 9606(b)(2), as amended by the Superfund 
Amendments and Reauthorization Act of 1986 (SARA). Section 106(b)(2) 
allows any person who has complied with an administrative order issued 
under section 106(a) of CERCLA to petition for reimbursement of the 
reasonable costs incurred in complying with the order, plus interest. 
To establish a claim for reimbursement, a petitioner must demonstrate 
that it was not liable for response costs under CERCLA section 107(a), 
or that EPA's selection of the ordered response action was arbitrary 
and capricious or was otherwise not in accordance with law.
    Based on its experience with such petitions since June 1994, the 
Board issued a revised version of its procedural guidance on October 9, 
1996. This notice sets forth the full text of the Board's revised 
guidance for the convenience of interested members of the public.

FOR FURTHER INFORMATION CONTACT: For further information or for copies 
of the revised guidance document, contact the Environmental Appeals 
Board (Mail Code 1103B), 401 M Street, SW, Washington, DC 20460, (202) 
501-7060.

    Dated: October 10, 1996.
Edward E. Reich,
Environmental Appeals Judge.

Revised Guidance on Procedures for Submitting CERCLA Section 106(b) 
Reimbursement Petitions and on EPA Review of Those Petitions

    Note: This document is intended solely as guidance. It does not 
establish a binding norm and is not finally determinative of the 
issues addressed. This document is not intended to be a synopsis of 
principles of law. The policies and procedures in this guidance do 
not constitute a rulemaking by the Agency, and may not be relied on 
to create a substantive or procedural right or benefit enforceable 
at law by any person. The Agency may take action at variance with 
this guidance.

I. Introduction

    This document sets forth guidance regarding petitions for 
reimbursement submitted under section 106(b)(2) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA), 42 U.S.C. 9606(b)(2), as amended by the Superfund Amendments 
and Reauthorization Act of 1986 (SARA). This guidance describes the 
contents of reimbursement petitions and the procedures that EPA uses in 
responding to reimbursement petitions. The full text of section 
106(b)(2) is set forth as an appendix to this guidance.
    Section 106(b)(2) allows any person who has complied with an 
administrative order issued under section 106(a) of CERCLA to petition 
for reimbursement of the reasonable costs incurred in complying with 
the order, plus interest. To establish a claim for reimbursement, a 
petitioner must demonstrate that it was not liable for response costs 
under CERCLA section 107(a), or that EPA's selection of the ordered 
response action was arbitrary and capricious or was otherwise not in 
accordance with law.
    Section 106(b)(2) is organized in four parts, roughly as follows. 
Subparagraph 106(b)(2)(A) requires that a petition be submitted to EPA 
``within 60 days after completion of the required action.'' 
Subparagraphs 106(b)(2)(C) and 106(b)(2)(D) describe the substantive 
grounds for reimbursement. Subparagraph 106(b)(2)(B) authorizes a 
petitioner to pursue its claim for reimbursement in the appropriate 
U.S. District Court if EPA denies the claim in whole or in part.
    This guidance supersedes the Environmental Appeals Board's June 9, 
1994 ``Guidance on Procedures for Submitting CERCLA Section 106(b) 
Reimbursement Petitions and on EPA Review of Those Petitions,'' and is 
effective immediately. The procedures described in this guidance will 
be applied to all petitions submitted on or after the date of its 
issuance. The Board will also apply these procedures, to the extent the 
Board determines it to be practicable, to petitions that were submitted 
before the date of issuance of this guidance and that have not yet been 
decided by the Board.

II. Filing Procedures and Deadlines

    Petitions for reimbursement should be submitted to EPA's 
Environmental Appeals Board 1 by certified mail, return receipt 
requested, at the following address: Clerk, Environmental Appeals Board 
(Mail Code 1103B), U.S. Environmental Protection Agency, 401 M Street, 
SW, Washington, DC 20460.
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    \1\ The President's authority to implement CERCLA section 106(b) 
was delegated to the EPA Administrator by Executive Order 12580 
(January 23, 1987). The authority to receive, evaluate, and make 
determinations regarding petitions for reimbursement submitted 
pursuant to section 106(b) has been delegated to the Environmental 
Appeals Board. See Delegation of Authority 14-27 (``Petitions for 
Reimbursement'').
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    Alternatively, petitions and supporting materials may be hand-
delivered to the Clerk of the Environmental Appeals Board between the 
hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (excluding 
federal holidays), at the following address: Suite 500, 607 Fourteenth 
Street, NW, Washington, DC 20005. The petitioner should also send a 
copy of its petition, including attachments, to the EPA Regional 
program office that issued the underlying administrative order.
    Section 106(b)(2) requires that a petition be submitted to EPA 
``within 60 days after completion of the required action.'' For the 
purpose of determining a petitioner's compliance with the statutory 60-
day deadline, EPA will look to the postmark date if the petition is 
sent to the Environmental Appeals Board by certified mail, or the date 
of receipt by the Environmental Appeals Board if the petition is sent 
by any other means. In other words, petitions sent to the Board by 
certified mail must be postmarked not later than the 60th day after the 
date of completion of the required action. Petitions sent to the Board 
by any means other than certified mail must actually be received by the 
Environmental Appeals Board not later than the 60th day after the date 
of completion of the required action. It is recommended that petitions 
be submitted to the Board only by certified mail or by hand delivery; 
to minimize the risk of disputes over timeliness, filing by regular 
first-class mail is discouraged. If the 60-day time period for filing 
the petition with EPA expires on a Saturday, Sunday, or federal legal 
holiday, the period will be extended to include the next business day.

III. Contents of the Petition

A. Background Information

    A petition must include the following background information:
     the petitioner's full name, title, and address;
     the name, title, address, telephone number and fax number 
of any agent or attorney authorized to represent the

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petitioner (or, if the petitioner is not represented, the petitioner's 
own telephone number and fax number);
     the name and address of the facility at which the response 
action was implemented; and
     the U.S. EPA docket number for the section 106(a) order (a 
complete copy of the order must also accompany the petition as an 
attachment).
    The petition must be signed by the petitioner or by an attorney 
representing the petitioner. If the petitioner is not a natural person 
(e.g., if the petitioner is a corporation), the petition must be signed 
by the petitioner's attorney or by an agent or officer of the 
petitioner who is qualified to act as a signatory; for purposes of this 
requirement, a ``qualified'' agent or officer means one who satisfies 
the definition provided in 40 C.F.R. Sec. 270.11(a). The Environmental 
Appeals Board may at any time require any factual assertion contained 
in a petition to be substantiated by an affidavit based on the 
affiant's personal knowledge of the matter asserted.

B. Threshold Matters (Required Assertions Re: Petitioner's Eligibility 
To File)

    The Board's first priority, in acting on a petition for 
reimbursement, is to evaluate the petitioner's eligibility to have its 
claim addressed on the merits. The petition must therefore present 
information concerning the following threshold eligibility matters:
    (1) Compliance With the Order: The recipient of a section 106(a) 
administrative order may seek reimbursement of its costs only if it 
``complies'' with the order. A petition for reimbursement must 
therefore include a statement indicating that the petitioner has 
complied with the order, and evidence supporting that statement must 
accompany the petition. If the EPA Regional office that issued the 
order disputes the petitioner's assertion regarding compliance (under 
the procedures described in Section IV.A, infra), the Board may 
undertake to resolve that dispute before proceeding to the merits of 
the petitioner's claim.
    (2) Completion of the Required Action: A petitioner may only 
present a reimbursement claim for consideration on the merits after 
completion of the action required by the section 106(a) administrative 
order. The petition must therefore include a statement indicating that 
the action has been completed, and evidence supporting that statement 
must accompany the petition. If the EPA Regional office that issued the 
order disputes the petitioner's assertion regarding completion (under 
the procedures described in Section IV.A, infra), the Board may 
undertake to resolve that dispute before proceeding to the merits of 
the petitioner's claim.
    (3) Timeliness of the Petition: The petition must also indicate the 
date on which the action required by the section 106(a) order was 
completed, so that the Board can determine whether the petition is 
timely. Very important information regarding compliance with the 
statutory 60-day filing deadline appears supra in Section II of this 
guidance, titled ``Filing Procedures and Deadlines.''
    (4) Incurrence of Costs: The statute requires a demonstration that 
the costs for which reimbursement is sought are ``reasonable.'' 
However, there is no need for a petitioner to undertake a full-scale 
demonstration of the ``reasonableness'' of the costs being claimed 
until and unless the Board concludes that reimbursement in some amount 
is appropriate. Therefore, when initially filing a petition, the only 
cost information that the petitioner must include is (1) a statement 
asserting that the petitioner incurred costs in complying with EPA's 
section 106(a) order, and (2) an estimate of the total costs being 
claimed by the petitioner. Any dispute concerning the reasonableness of 
the costs incurred will ordinarily be addressed only after the Board 
decides that reimbursement of some amount should be awarded. The Board, 
however, reserves the right to request cost information at an earlier 
date if it deems such information useful in determining either 
threshold eligibility issues or a petitioner's entitlement to 
reimbursement on the merits.

C. Statement of Grounds for Reimbursement

    The petition must articulate all legal arguments and all factual 
contentions (including contentions, if any, regarding technical or 
scientific matters) on which the petitioner relies in support of its 
claim for reimbursement.2 Except as may be permitted by the Board 
for good cause shown, and except as specifically provided in Sections 
III.B(4) and IV.F of this guidance (describing procedures for 
identifying and submitting cost-related information), no issues may be 
raised by a petitioner during the petition review process that were not 
identified in the petition, and no evidence or information may be 
submitted during the petition review process that was not identified in 
the petition, unless the petitioner demonstrates: (1) for new issues, 
that such issues were not reasonably ascertainable as of the date the 
petition was filed; or (2) for new evidence or information, that the 
petitioner could not reasonably have known of its existence, or could 
not reasonably have anticipated its relevance or materiality, as of the 
date the petition was filed.
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    \2\ A petitioner may seek leave of the Environmental Appeals 
Board to amend a petition in order to present information, or to 
identify evidence, that was not available at the time of the initial 
filing. A petition must be promptly amended as appropriate to 
correct or clarify any statements therein that are no longer true, 
or that are determined not to have been true when made.
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    The petition must explicitly state, as to each claim set forth 
therein, whether the claim arises under CERCLA Sec. 106(b)(2)(C) or 
under CERCLA Sec. 106(b)(2)(D).3 Both subparagraph 106(b)(2)(C) 
and subparagraph 106(b)(2)(D) expressly place the burden of proof on 
the petitioner.
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    \3\ Any petitioner challenging EPA's decision in selecting an 
ordered response action should also note that, in the event of a 
successful challenge, section 106(b)(2)(D) calls for reimbursement 
of ``reasonable response costs incurred by the petitioner pursuant 
to the portions of the order found to be arbitrary and capricious or 
otherwise not in accordance with law'' (emphasis added). Therefore, 
when making a claim under section 106(b)(2)(D), the petitioner must 
be specific in identifying the portions of EPA's order that it seeks 
to challenge.
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D. Required Attachments

    A complete copy of the administrative order on which the 
petitioner's claim is based must accompany the petition as an 
attachment. In addition, all other documents on which the petitioner 
relies in support of its claim must also be submitted as attachments to 
the petition, except for documents to be relied on solely as evidence 
of the costs incurred or as evidence of their reasonableness.4 
Each of the attachments must be separately identified, and the 
relevance of each attachment to the petitioner's claim briefly 
explained, in the body of the petition.
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    \4\ Copies of such cost-related documents need only be submitted 
after the Board issues an Order Granting Reimbursement. See Section 
IV.F, infra.
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IV. Agency Procedures for Processing Section 106(b) Petitions

    The Environmental Appeals Board will generally evaluate petitions 
for reimbursement using the following procedures. The Board may, 
however, exercise its discretion to stay further action on a petition 
at any time. The Board may, for example, defer consideration of a 
petition while related settlement discussions or judicial actions are 
proceeding, or for other good cause. In addition, a petitioner may 
elect to withdraw its petition, or to withdraw its own claim (e.g., for 
settlement purposes) from a petition

[[Page 55300]]

submitted jointly with other petitioners. Whenever a petitioner 
withdraws or voluntarily dismisses a claim for reimbursement, the 
petitioner will be permitted to reinstate that claim only if the 60-day 
statutory deadline (measured from the date of completion of the 
required action) has not yet expired.

A. Regional Office Response to the Petition

    Upon receiving a petition for reimbursement, the Environmental 
Appeals Board will send a letter to the appropriate EPA Regional office 
(with a copy to the petitioner) soliciting a response to the petition. 
The Region must respond in one of two ways:
    If the Region contends that one or more of the threshold 
eligibility requirements discussed Section III.B of this guidance have 
not been met--i.e., that the petitioner has failed to comply with EPA's 
section 106(a) order, that the required action has not been completed, 
that the petition was not timely filed, and/or that the petitioner has 
not incurred any costs in complying with a section 106(a) order--the 
Region must raise those contentions by submitting a limited responsive 
pleading in the nature of a motion to dismiss the petition. Such a 
pleading would address only the petitioner's alleged failure to meet 
the threshold requirements described in Section III.B, and would be 
treated by the Board as a request to reject the petition without 
reaching the merits of the petitioner's claims. Because a pleading of 
this nature would not include a response to the merits of the 
petitioner's claims, the Region would be expected to file it 
expeditiously, within thirty days after the date of the Board's letter 
soliciting a response to the petition.5 The petitioner would then 
be invited to respond to the Region's threshold objections. Once the 
threshold eligibility issues are fully briefed, the Board will either 
rule on those issues separately or defer ruling on them until the 
merits have also been briefed (pursuant to a further order of the 
Board). The Region would not, by initially filing a responsive pleading 
in the nature of a motion to dismiss, be deemed to have waived any of 
its arguments with respect to the merits of the petitioner's claims.
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    \5\ The Regional office may request a limited extension of time 
if necessary to verify whether a petitioner has completed the 
response action.
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    If the Region does not contend that one or more of the threshold 
eligibility requirements discussed in Section III.B of this guidance 
have not been met, the Region must submit a response addressing the 
merits of the petitioner's claims. A response addressing the merits 
would be due from the Region within sixty days after the date of the 
Board's letter soliciting a response to the petition. The Region's 
submission of a response addressing the merits of the petitioner's 
claims (either on its own initiative or as directed by the Board) in no 
way limits the Board's authority to reject the petition for failure to 
satisfy the threshold eligibility requirements described in Section 
III.B of this guidance.
    When the Region submits its first responsive pleading to the Board, 
addressing either the petitioner's eligibility to seek reimbursement or 
the merits of the petitioner's claims, the Region must also submit a 
certified index to the administrative record that the Region compiled 
in connection with the issuance of the underlying CERCLA Sec. 106(a) 
order. In addition, the Region must provide the Board with copies of 
all documents that are relied on in the responsive pleading and that 
have not already been submitted by the petitioner.

B. Additional Briefing

    The Board may at any time require or invite the petitioner and/or 
the Region to provide such supplemental briefing as the Board may deem 
necessary for an informed resolution of the issues presented. Briefs 
other than those expressly required or invited by the Board may be 
submitted only with leave of the Board.

C. Evidentiary Hearings and Oral Arguments

    In its sole discretion, the Board may choose to designate a hearing 
officer (who shall be an EPA employee without prior involvement in the 
matter under review) to conduct an evidentiary proceeding with respect 
to any issue of fact that the Board may consider material to the 
resolution of a reimbursement petition.6 Similarly in its sole 
discretion, the Board may direct the parties to appear before it to 
present oral argument with respect to one or more specified issues of 
law. The Board may take either of those actions either in response to a 
request by a party or on its own initiative.
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    \6\ If the Board designates a hearing officer to conduct an 
evidentiary hearing, he or she will be asked to issue a recommended 
decision to the Board with respect to the issues addressed at the 
hearing.
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    If the Board determines that an evidentiary hearing or oral 
argument shall take place, both the petitioner and the Region will be 
notified in writing of the issues to be addressed and the hearing date 
and location. Both the Region and the petitioner will be expected to 
participate in such proceedings; a party's failure to participate may 
cause adverse inferences or conclusions to be drawn against that party 
with respect to any matter addressed at the proceedings.

D. Preliminary Decision

    The Board's proposed disposition of a petition for reimbursement, 
whether on the merits or otherwise, will first be issued to the parties 
in the form of a ``Preliminary Decision'' on which comments will be 
solicited (see Section IV.E, infra). If any materials cited in the 
Preliminary Decision were not furnished by the parties themselves and 
are not generally available, such materials will either be sent by the 
Board to all parties along with the Preliminary Decision or be made 
available for inspection by the parties at the Regional office upon 
issuance of the Preliminary Decision, as the Board deems appropriate. 
In addition, if an evidentiary hearing was conducted in connection with 
the evaluation of a petition, the Board will provide a copy of the 
hearing officer's recommended decision to the parties along with its 
own Preliminary Decision.

E. Comments on the Preliminary Decision

    When the Board issues its Preliminary Decision, it will also 
establish a schedule providing both parties with an opportunity to 
comment on the decision. The Board expects that it will generally 
invite such comments according to the following sequence:
    If the Preliminary Decision proposes to award reimbursement to the 
petitioner, the Board will direct the Regional office to submit its 
comments first. The Board will specify a later date for submission of 
the petitioner's comments, which may include a response to the Region's 
comments.
    If, however, the Preliminary Decision proposes to deny the 
petitioner's claim in full, the Board will direct the petitioner to 
submit its comments first. The Board will specify a later date for 
submission of the Region's comments, which may include a response to 
the petitioner's comments.
    The comment period following issuance of the Board's Preliminary 
Decision represents the final opportunity for each party to present its 
views in relation to the substance of the petitioner's claim for 
reimbursement under section 106(b)(2). Comments should focus with 
particularity on the analysis in the Preliminary Decision rather than 
merely repeating general

[[Page 55301]]

arguments previously made. To the extent that a party wishes only to 
reaffirm its reliance on arguments already made to the Board, such 
arguments need not be repeated at length. Instead, comments of that 
nature may be submitted in summary form referencing the commenting 
party's prior submissions.
    Before finalizing its determination to grant or deny reimbursement, 
the Board will review and consider comments relating to any issue 
previously identified by either party; but the Board will, except in 
extraordinary circumstances, decline to consider any new claims or new 
issues sought to be raised during the comment period. Absent 
extraordinary circumstances, comments should therefore relate only to 
the issues raised in the petition or in the Region's response to the 
petition, or to any other matter discussed in the Preliminary Decision.

F. Further Proceedings

    After reviewing comments (and responses to comments) submitted by 
the parties, and making such changes as it deems appropriate in light 
of those submissions, the Board will issue either an Order Granting 
Reimbursement or a Final Order Denying Reimbursement. An Order Granting 
Reimbursement will be issued if the Board determines that a petitioner 
is entitled to reimbursement of all or any portion of the costs claimed 
in the petition. A Final Order Denying Reimbursement will be issued 
only if the Board determines that no portion of the costs claimed by 
the petitioner will be reimbursed.
    (1) Final Order Denying Reimbursement: A Final Order Denying 
Reimbursement represents the Agency's final decision with respect to 
the petitioner's claim. A petitioner who wishes to file an action in 
Federal district court under CERCLA section 106(b)(2)(B) must do so 
within thirty days of receipt of a Final Order Denying Reimbursement. 
To eliminate any uncertainty as to the date of receipt, a Final Order 
Denying Reimbursement will be served on the petitioner by certified 
mail, return receipt requested.
    (2A) Order Granting Reimbursement; Proof of Costs: An Order 
Granting Reimbursement, in contrast, does not constitute the Agency's 
final decision with respect to the petitioner's claim, because the 
amount of reimbursement to be awarded must still be determined. When 
issuing an Order Granting Reimbursement, therefore, the Board will also 
direct the petitioner to furnish documentation of all costs that it 
seeks to recover and that would be recoverable according to the 
analysis in the Board's Order Granting Reimbursement. According to a 
briefing schedule established by the Board, the Regional office will 
then be afforded an opportunity to challenge particular cost items (as 
unreasonable or otherwise not recoverable), and the petitioner will be 
permitted to respond to those challenges.7
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    \7\ Because the statute expressly limits reimbursement from the 
Fund to ``reasonable'' costs (plus interest), the Board may require 
a petitioner to submit not only evidence of the costs actually 
incurred--which evidence would include, at a minimum, itemized 
invoices and proof of their payment in full--but also evidence 
demonstrating that those costs are reasonable. Proof of 
``reasonableness'' of costs would become particularly important if 
the Regional office, after receiving the petitioner's initial 
itemization of the costs being claimed, offers specific reasons for 
concluding that certain cost items are not reasonable. Although the 
Board cannot anticipate all possible permutations of these issues, 
factors relevant to the reasonableness of a petitioner's costs might 
include: bidding procedures used for a particular project and the 
number of bids received; reasons for selecting a contractor other 
than the lowest bidder; cost estimates provided by prospective 
contractors and the circumstances surrounding any later deviations 
from those estimates; and the reasons for any unforeseen expansion 
of a particular project or unforeseen delay in its completion, to 
the extent that such expansion or delay resulted in additional 
costs. Petitioners should take care to retain documents and other 
evidence bearing on such matters, and should be prepared to submit 
such evidence to the Board upon request.
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    (2B) Final Order Granting Reimbursement: After the cost issues have 
been briefed, the Board will issue a Final Order Granting 
Reimbursement. A Final Order Granting Reimbursement represents the 
Agency's final decision with respect to the petitioner's claim. A 
petitioner who wishes to file an action in Federal district court under 
CERCLA Sec. 106(b)(2)(B) must do so within thirty days of receipt of a 
Final Order Granting Reimbursement. To eliminate any uncertainty as to 
the date of receipt, a Final Order Granting Reimbursement will be 
served on the petitioner by certified mail, return receipt requested.
    The Board's final decisions under CERCLA Sec. 106(b)(2) are 
available on a current basis on LEXIS, WESTLAW, and the World Wide Web 
(http://www.epa.gov/eab). The Board's decisions are also published 
periodically in a series of bound volumes titled Environmental 
Administrative Decisions, available for purchase from the 
Superintendent of Documents, U.S. Government Printing Office 
(telephone: 202-512-1800).8 For the convenience of litigants and 
the Board, the Board encourages the citation of Board decisions to the 
appropriate volume of the Environmental Administrative Decisions, if 
the cited decision appears therein.
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    \8\ When contacting GPO regarding Volumes 1 through 4 of the 
Environmental Administrative Decisions, please refer to GPO Order 
No. 055-000-00538-8. When inquiring as to Volume 5, please refer to 
GPO Order No. 055-000-00545-1. Volume 6 will be published during 
1997.
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V. Further Information

    For further information concerning the matters addressed in this 
guidance, contact Stuart Cane, Environmental Appeals Board (1103B), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, (202) 501-7060.

Appendix

    CERCLA Section 106(b)(2) provides:
    (A) Any person who receives and complies with the terms of any 
order issued under subsection (a) of this section may, within 60 days 
after completion of the required action, petition the President for 
reimbursement from the Fund for the reasonable costs of such action, 
plus interest. Any interest payable under this paragraph shall accrue 
on the amounts expended from the date of expenditure at the same rate 
as specified for interest on investments of the Hazardous Substance 
Superfund established under subchapter A of chapter 98 of Title 26.
    (B) If the President refuses to grant all or part of a petition 
made under this paragraph, the petitioner may within 30 days of receipt 
of such refusal file an action against the President in the appropriate 
United States district court seeking reimbursement from the Fund.
    (C) Except as provided in subparagraph (D), to obtain 
reimbursement, the petitioner shall establish by a preponderance of the 
evidence that it is not liable for response costs under section 9607(a) 
of this title and that costs for which it seeks reimbursement are 
reasonable in light of the action required by the relevant order.
    (D) A petitioner who is liable for response costs under section 
9607(a) of this title may also recover its reasonable costs of response 
to the extent that it can demonstrate, on the administrative record, 
that the President's decision in selecting the response action ordered 
was arbitrary and capricious or was otherwise not in accordance with 
law. Reimbursement awarded under this subparagraph shall include all 
reasonable response costs incurred by the petitioner pursuant to the 
portions of the order found to be arbitrary and capricious or otherwise 
not in accordance with law.
    (E) Reimbursement awarded by a court under subparagraph (C) or (D) 
may include appropriate costs, fees, and other expenses in accordance 
with

[[Page 55302]]

subsections (a) and (d) of section 2412 of Title 28.

[FR Doc. 96-27156 Filed 10-24-96; 8:25 am]
BILLING CODE 6560-50-P