| [finish]
d. Use of DOI regulations is optional for trustees, but following the regulations provides rebuttable presumption of validity. See Utah v. Kennecott Corp., 14 F.3d 1489 (10th Cir.) cert. denied 513 U.S. 872 (1994).
7. Natural Resource Damages
a. Damages may be measured as the cost of directly restoring the injured resource to "baseline," the physical, chemical, and biological condition the resource would have been in absent the release. 43 C.F.R. §§ 11.14(e). Alternatively, a trustee may seek to replace or acquire natural resources "equivalent" to those that have been lost, in which case the injury is valued as the cost of acquisition, habitat improvement, or the like, sufficient to return equivalent services, in both human and ecological terms, to those that have been lost. "Congress intended the damage assessment regulations to capture fully all aspects of the loss." Ohio, 880 F.2d at 463.
b. At a minimum, liability for natural resource damages includes the costs of restoring, replacing, or acquiring the equivalent of an affected resource, injury assessment and restoration planning costs, and indirect costs necessary to support such activities. 42 U.S.C. §§ 107(f)(1); 43 C.F.R. §§ 11.83(b)(1). Generally, the cost of restoration or replacement does not capture the full loss to the public. The ecological services, and public use and enjoyment, provided by an injured resource lost from the date of the injury until the date the services those resources provided are fully returned to their baseline conditions may also be recovered. See 42 U.S.C. § 9607(f)(1);; 43 C.F.R. §§ 11.83(c)(I). Damages for these losses, known as "interim losses," are also recoverable. Ohio, 880 F.2d at 454 n.34.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 NOAA also proposed a rule of NRD assessment of OPA damages at 61 Fed. Reg. 440 (Jan. 5, 1996). That regulation was substantially upheld in General Electric v. Dep't of Commerce, 128 F.3d 767 (D.C. Cir. 1997).
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O. JUDICIAL REVIEW
1. EXCLUSIVE FEDERAL JURISDICTION
a. Section 113(b) provides that, subject to Section 113(h), the federal district courts have exclusive original jurisdiction over all "controversies" arising under the Act.
2. TIMING OF REVIEW OF RESPONSE ACTIONS
a. Section 113(h) specifically controls the timing of judicial review, and divests the federal courts of jurisdiction to review challenges to: "removal or remedial action selected under Section 9604 . . ., or to review any order issued under Section 9606(a) . . . in any action except one of the following:
(1) An action under Section 9607 . . . to recover response costs or damages or for contribution.
(2) An action to enforce an order issued under Section 9606(a) . . . or to recover a penalty for violation of such order.
(3) An action for reimbursement under Section 9606(b)(2) . . . .
(4) An action under Section 9659 [citizens' suit] . . . alleging that the removal or remedial action taken under § 9604 ... or secured under Section 9606 . . . was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
(5) An action under Section 9606 . . . in which the United States has moved to compel a remedial action."
b. NPL listings. In United States v. ASARCO Inc., 214 F.3d 1104 (9th Cir. 2000), the 9th Circuit held that it lacked jurisdiction to review the breadth of a "site" listing on the NPL because NPL listing is a regulation and exclusive jurisdiction to review regulations under CERCLA lies with the D.C. Circuit. CERCLA § 113(a).
3. PRE-ENFORCEMENT REVIEW
a. Section 113(h) bars pre-implementation and pre-enforcement challenges to removal or remedial actions under CERCLA. Thus, subject to the five enumerated exceptions, federal court jurisdiction is precluded under any law for a challenge to any EPA response action prior to the action's completion, or to the filing of an enforcement action. OCAW International Union v. Richardson, 214 F.3d 1379, 1382 (D.C. Cir. 2000) (no NEPA jurisdiction over activity within CERCLA's definition of "removal"); Boarhead Corp. v. Erickson, 923 F.2d 1011, 1021-22 (3d Cir. 1991) (no jurisdiction under the National Historic Preservation Act); Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990), cert. denied, 111 S. Ct. 509 (1990) (no jurisdiction under RCRA or NEPA); North Shore Gas Co. v. Envtl. Protection Agency, 930 F.2d 1239, 1244-45 (7th Cir. 1991) (no jurisdiction to review challenges under RCRA or NEPA); Southern Pines Ass'ns. v. United States, 912 F.2d 713, 716 (4th Cir. 1990) (CERCLA allows "EPA to act to address environmental problems quickly and without becoming entangled in litigation"); Frey v. Envtl. Protection Agency, 270 F.3d 1129 (7th Cir. 2001) (§ 113(h) is not technically a subject matter jurisdictional bar, but rather a prerequisite to relief; discusses when response action is completed for purposes of bar); Reynolds v. Lujan, 785 F. Supp. 152, 153-54 (D.N.M. 1992) (commencement of CERCLA action at federal facility listed on the NPL barred suit under citizen suit provision of RCRA); North Penn Water Auth. v. Bae Systems, Civil Action No. 04-4446, 2006 U.S. Dist. LEXIS 14773, at *22-27 (E.D. Pa. July 19, 2005)(holding court lacked subject matter jurisdiction to hear RCRA arguments due to Section 113(h)); Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828, 834-35 (D.N.J. 1989) (§ 113(h)(4) prohibits review through citizen suits until the remedial action selected is completed); New Mexico v. General Electric Co., 467 F.3d 1223, 1249 (10th Cir. 2006)(state NRD claim "in al respects, a challenge to an EPA - ordered remeditaion" and barred). But cf. Cabot Corp. v. Envtl. Protection Agency, 677 F. Supp. 823, 828-29 (E.D. Pa. 1988) (in dicta the court suggested that while a suit brought by PRPs challenging a remedial plan was subject to dismissal under § 113(h)(1), citizens' challenges to the plan's adequacy before implementation might arguably be permitted under § 113(h)(4). Other courts have specifically rejected the reasoning in Cabot. See Neighborhood Toxic Cleanup Emergency, supra, at 834-35. But see United States v. Princeton Gamma-Tech., Inc., 31 F.3d 138 (3d Cir. 1994) (Court had jurisdiction under § 113(h)(1) and (4) to consider remedy challenge where alleged continuance of project would cause irreparable harm to public health and the environment). The 3rd Circuit, however, reversed this position as to § 113(h)(4) in Clinton County Commissioners v. Environmental Protection Agency, 116 F.3d 1018(3d Cir. 1997)(en banc) cert. denied sub nom., Arrest the Incinerator Remediation, Inc. v. Envtl. Protection Agency, 522 U.S. 1045 (1998). Finally, in APWU v. Potter, 343 F.3d 619 (2d Cir. 2003), the Court dismissed the challenge to the postal services cleanup of anthrax, holding that USPS was authorized to take removal action and Section 113(h) applied. But see Fort Ord Tex. Project v. Cal. Envtl. Protection Agency, 189 F.3d 828 (9th Cir. 1999). (Section 113(h) does not bar review of remedial actions conducted by federal agencies under Section 120 authority); General Electric v. EPA, 360 F.3d 188 (DC Cir. 2004) (constitutional challenge to EPA § 106 order may be considered).
b. A remedial investigation/feasibility study constitutes a removal or remedial action so that Section 113(h) bars judicial review. Razore v. Tulilap Tribes of Wash, et al., 66 F.3d 236 (9th Cir 1995).
c. In United States v. Colorado, 990 F.2d 1565, 1576 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994), the 10th Circuit held that a state suit seeking to enforce state hazardous waste procedural requirements at a federal facility on the NPL was not barred by Section 113(h), relying upon 42 U.S.C. § 9614(a), which provides that "[n]othing in [CERCLA] shall be construed as preempting any state from imposing any additional liability or requirements with respect to the release of hazardous substances within such state." The court impliedly found that there was no inconsistency between what the state was seeking to require, and the ongoing CERCLA process. The case leaves open the question of whether CERCLA would preempt, or section 113(h) would bar jurisdiction to hear, an attempt by a state to compel a cleanup action that was irreconcilably inconsistent with an action being undertaken pursuant to CERCLA.
4. CITIZEN SUITS
a. Violations of CERCLA Requirements: Section 310(a)(1) allows citizens (including states) to bring suit against the United States or other persons "alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective" under CERCLA, including the provisions of a § 120 agreement.
b. Mandatory Duties: Section 310(a)(2) allows citizens to sue the "President or any other officer of the United States . . . where there is alleged a failure" to perform any non-discretionary act or duty, including acts or duties under Section 120 agreements.
c. Notice: Sixty day notice is a jurisdictional requirement for any suit under Section 310. Boarhead, 923 F.2d at 1019 n.13.
5. INTERVENTION STANDARD
a. CERCLA confers a broad, but not unconditional right to intervene which mirrors the language in FRCP 24(a). See United States v. Alcan Aluminum, Inc., 25 F.3d 1174 (3d Cir. 1994). Section 113(i) of CERCLA provides for intervention as a matter of right in any proceeding under CERCLA when the person seeking to intervene shows:
an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest, unless the President or the State shows that the person's interest is adequately represented by existing parties.
b. United States v. Union Electric Co., 64 F.2d 1152 (8th Cir. 1995) aff'd 132 F.2d 422 (8th Cir. 1997) (allowed non-settler to intervene if applicant "is or may be bound by the judgment in the action"). See also United States v. Flanders Electric Motor Services, Inc., 64 F.3d 1152 (8th Cir. 1995). Compare United States v. Acorn Eng'g Co., 221 F.R.D. 530 (CD. Ca 2004) (PRP lacked right to intervene) v. United States v. City of Glen Cove, 221 F.R.D. 370 (E.D. N.Y. 2003) (PRP has right to intervene).
6. SOVEREIGN IMMUNITY
a. CERCLA defines a "person" to include the United States government. Section 101(21).
b. CERCLA expressly provides that the federal government can be held liable. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 10 (1989), overruled on other grounds by Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114 (1996); FMC Corp. v. United States Dep't of Commerce, 29 F.3d 833 (3d Cir. 1994)(en banc); City of Bangor v. Citizens Commun. Co., Civil No. 02-283-B-S, 2004 U.S. Dist. LEXIS 3845 (D. Me. 2004). But see United States v. Vertac Chem. Corp., 46 F.3d 803 (8th Cir.), cert. denied, 115 S. Ct. 2609 (1995)(nationwide control over supply of raw materials during wartime does not make government liable) and East Bay Mun. Util. Dist. v. United States Dep't of Commerce, 142 F.3d 479 (D.C. Cir. 1998). (U.S. not liable for WWII effort despite regulatory control of private zinc mine production).
c. Waiver of sovereign immunity, Section 120(a) (emphasis added):
(1) In General: Section 120(a)(1):
Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under Section 9607 of this title. Nothing in this section shall be construed to affect the liability of any person or entity under Sections 9606 and 9607 of this title.
(2) Application of Requirements to Federal Facilities: Section 120(a)(2)
All guidelines, rules, regulations, and criteria which are applicable to preliminary assessments carried out under this chapter for facilities at which hazardous substances are located, applicable to evaluations of such facilities under the National Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial actions at such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this chapter.
(3) Exceptions: Section 120(a)(3)
This subsection shall not apply to the extent otherwise provided in this section with respect to applicable time periods. This subsection shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this chapter shall be construed to require a State to comply with Section 9604(c)(3) of this title in the case of a facility which is owned or operated by any department, agency, or instrumentality of the United States.
(4) Application of State laws at Non-NPL Facilities: Section 120(a)(4) (as amended)
State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States or facilities that are the subject of a deferral under subsection (u)(3)(c) of this section when such facilities are not included on the National Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality;
d. Claims based on agency regulatory activities. Courts have consistently held that when EPA under CERCLA (or the Coast Guard under the Oil Pollution Act) is carrying out regulatory authority to implement the cleanup program there is no waiver of immunity to subject the agency to liability as a PRP. See United States v. Am. Color & Chem. Corp., 858 F. Supp. 445 (M.D. Pa. 1994); United States v. Atlas Minerals & Chem., Inc., 797 F. Supp. 411, 420 (E.D. Pa. 1992); In re Paoli R.R. Yard PCB Litigants, 790 F. Supp. 94 (E.D. Pa.), aff'd, 980 F.2d 724 (3d Cir. 1992); United States v. Skipper, 781 F. Supp. 1106 (E.D.N.Y. 1991); United States v. Israel, 765 F. Supp. 1239 (D. Md. 1991); United States v. Western Processing Co., 761 F. Supp. 725, 729-30 (W.D. Wash. 1991). Cases involving other agencies carrying out non-cleanup regulatory authorities have held there was a waiver of immunity. FMC v. United States, 29 F.3d 833 (3d Cir. 1994). On July 5, 1994, the Third Circuit en banc reaffirmed panel decision holding the United States liable as operator of a facility that government closely regulated during World War II. The en banc court deadlocked with regard to whether the U.S. was also subject to arranger liability. See also East Bay MUD v. Commerce, 142 F.3d 479 (D.C. Cir. 1998) (U.S. not entitled to sovereign immunity but not liable as operator of mine because facts did not establish "actual government control"); United States v. Shell, 281 F.3d 812 (9th Cir. 2002) (holding CERCLA did waive sovereign immunity, but reversed district court holding U.S. liable as a generator as a result of exercising its pervasive World War II regulatory authority); Cadillac Fairview v. Dow Chem., 299 F.3d 1019 (9th Cir. 2002) (U.S. liable for World War II activity due to indemnification agreement).
e. 5th Amendment Takings. If money damages are asserted against the United States, the exclusive remedy is an action against the United States in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. 149l(a)(1) when the claim exceeds $ 10,000. Heller, Ehrman, White, and Macauliffe v. Babbitt, 992 F.2d 360, 361-64 (D.C. Cir. 1993); see Hendler v. United States, 175 F.3d 1374 (D.C. Cir. 1999); Bublitz v. Brownlee, 309 F. Supp. 2d 1 (D.D.C. 2005).
f. Supremacy Clause. City cannot stop federally-directed action by serving PRP during CERCLA remedy with cease and desist order pursuant to zoning ordinance. United States v. City and County of Denver 100 F.3d 1509 (10th Cir. 1996), Esso Std. Oil, supra.
g. State immunity. The statutory definition of "person" also includes a state. The Supreme Court, however, held that Congress's authority under the Interstate Commerce Clause was insufficient to waive state sovereign immunity in the Eleventh Amendment and Congress could not authorize suits by private parties against unconsenting states. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)(overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). In Burnette v. Carothers, 192 F.3d 52 (2d. Cir. 1999) court held 11 | Amendment immunity also barred action against state agencies and officials. But see In re Dairy Mart v. Nickel, 411 F.3d 367 (2d Cir June 13, 2005).
h. Medical Monitoring Costs. Sections 301(a) and 120 do not provide cause of action to force U.S. to pay medical monitoring costs. Pritkin v. United States Department of Energy, 47 F. Supp. 2d 1225 (E.D. Wash. 1999), aff'd Pritkin v. Dep't of Energy, 254 F.3d 791 (9th Cir. 2001). See also Struhar v. City of Cleveland, 7 F.Supp 2d 948 (N..D. Ohio 1998).
7. CERCLA AND BANKRUPTCY LAW
a. Priority of Environmental Claims in Bankruptcy
(1) Environmental claims have been found to have administrative expense pri9ority in bankruptcy based on at least two legal rationales. The first involves debtors' obligations under nonbankruptcy law for property that they own or have an interest in. The leading Fifth Circuit case is In re H.L.S. Energy Co., 151 F.3d 434, 436 (5th Cir. 1998), (State of Texas was entitled to administrative expense priority under 11 U.S.C. §§ 503(b)(1)(A), 507(a)(2), to satisfy the bankruptcy "estate's post-petition environmental obligations" to plug unproductive oil wells). Four other Courts of Appeal agree with the Fifth Circuit that the Government is entitled to an administrative expense priority for response costs incurred post-petition with respect to property of the bankruptcy estate since the trustee or debtor-in-possession has an obligation to manage its property in accordance with applicable non-bankruptcy law. See Pennsylvania v. Conroy, 24 F.3d 568, 569-70 (3d Cir. 1994) (Alito, J.); In re Chateaugay Corp., 944 F.2d 997, 1009-10 (2d Cir. 1991); In re Wall Tube & Metal Products Co., 831 F.2d 118, 123-24 (6th Cir. 1987); In re Smith-Douglass, Inc., 856 F.2d 12, 17 (4th Cir. 1988).
(2) A second rationale for administrative expense priority for environmental claims is where environmental harm or liability results off-site from the debtor's post-petition acts or property. The debtor has administrative expense liability for the costs of responding to the environmental problems and liabilities resulting from its own property or acts post-petition. This kind of administrative expense liability is based on the reasoning of the Supreme Court in Reading Co. v. Brown, 391 U.S. 471 (1968). Under this rationale, Debtors can also have administrative expense liability for fines and penalties for violations of environmental laws. See e.g., In re Charlesbank Laundry, Inc., 755 F.2d 200 (1st Cir. 1985) (fine incurred by Chapter 11 debtor for failing to abate nuisance was an administrative expense). The Fifth Circuit has twice cited approvingly to the First Circuit's decision in Charlesbank Laundry. See Jack/Wade Drilling, 258 F.3d at 388. Al Copeland Enterprises, 991 F.2d at 239.
(3) Environmental claims can also have priority as secured claims, including sites where EPA has perfected a lien for its cleanup costs, monies held in trust for cleanup obligations, setoffs for tax refunds, and insurance proceeds from insurance coverage for the contaminated sites.
b. Consent Decrees, Administrative Orders, Injunctions, Regulatory Obligations, and Bankruptcy
(1) A debtor-in-possession is required to comply with work requirements arising under orders of courts, administrative orders, injunctions, and other environmental regulatory requirements imposed by law. During a bankruptcy case, the police and regulatory exception to the automatic stay permits governmental units to continue with any police or regulatory actions or proceedings "including the enforcement of judgment other than money judgements." 11 U.S.C. §§ 362(b)(4). Courts making this determination consider whether: (1) the order is within the framework of what is traditionally considered a recovery of money damages for a sum certain; and (2) the order seeks performance of remedial acts to prevent potential future harm and obtain compliance with law. See In re Commonwealth Oil Ref. Co., 805 F.2d 1175, 1186-88 (5th Cir. 1986); Penn Terra Ltd. v. Dep't of Envtl. Resources, 733 F.2d 267, 275-78 (3d Cir. 1984); United States v. ILCO, Inc., 48 B.R. 1016, 1022-23 (N.D. Ala. 1985).
(2) When a Plan of Reorganization is confirmed, the Reorganized Debtors must still comply with injunctive obligations and work requirements. Since the debtor does not have the right to pay money and refuse to deal with ongoing releases of its hazardous wastes threatening public health and safety, these injunctive obligations are not dischargeable claims. In re Chateaugay Corp., 944 F.2d 997, 1008 (2d Cir. 1991) See also In re Torwico Electronics, Inc., 8 F.3d 146, 151 (3d Cir. 1993) (order was not a dischargeable claim because State sought cleanup rather than money and the release of hazardous wastes was "threatened and ongoing," and was "an attempt to prevent additional damage").
c. Environmental Liabilities Are Estimated Based on the Legal Rules Which Govern CERCLA Liability
The Supreme Court recently restated the settled rule that bankruptcy courts must look to non-bankruptcy law in evaluating claims in bankruptcy, Travelers Casualty & Surety Co. v. Pacific Gas and Electric Co., 127 S. Ct. 1199 (2007). See generally In Re National Gypsum Co., 139 B.R.397, 414-15 (N.D. Tex. 1992) (CERCLA claims must be estimated under the usual rules under CERCLA governing joing and several liability and divisibility). See also In re Ford, 125 B.R. 735, 738 (E.D. Tex. 1991) (bank entitled to joint and several liability in bankruptcy), aff'd, 967 F.2d 1047 (5th Cir. 1992).
P. OBLIGATIONS AT FEDERALLY-OWNED FACILITIES
1. FEDERAL AGENCY HAZARDOUS WASTE ASSESSMENT AND EVALUATION: SECTION 120(d)
a. EPA is required to establish a public "docket," published in the Federal Register and updated every six months, listing the information required of every federal agency and/or federal facility under RCRA §§ 3005, 3010, and 3016, or CERCLA § 103. These sections of RCRA and CERCLA essentially require federal agencies to report all facilities and activities whereby the agency generated, transported, treated, stored or disposed of hazardous waste whether currently or in the past, or where there has been a release of a reportable quantity of hazardous substances. EPA must then take steps to assure that a preliminary assessment is conducted in accordance with NCP to determine which sites should be listed on the NPL. CERCLA § 120(d), see Conservation Law Foundation v. Reilly, 755 F. Supp. 475 (D. Mass 1991).
b. Required Federal Action at NPL Facilities: Section 120(e)
(1) RI/FS: Within six months of NPL listing the agency must commence the Remedial Investigation and Feasibility Study, (RI/FS) pursuant to a timetable set by EPA and the relevant State.
(2) ROD: After completion of the RI/FS the lead agency must issue a Record of Decision choosing preferred remedy; EPA either concurs in agency remedy choice or chooses a different remedy Section 120(e)(4).
(3) FFA/IAG: Not later than six months after completion of EPA review of RI/FS (which culminates in issuance of the Record of Decision ("ROD") by the federal facility, the agency must enter into an interagency agreement ("LAG" or "Federal Facility Agreement ["FFA"]") with EPA, and in some instances the federal facility and EPA include the state in the IAG for a three-party agreement.
(a) Generally the FFA/IAG will be negotiated and signed prior to commencement of the RI/FS in order to provide a comprehensive guide and agreement concerning how the entire cleanup will progress. EPA has negotiated "model" FFA/IAGs with DOD and DOE;
(b) Private PRPs may also be included in the agreements if they are carrying out a portion of the response action.
(c) U.S. decision to act under FFA or IAG is remedial action decision barred from pre-enforcement review by Section 113(h). World Works, Inc. v. United States, 22 F. Supp. 2d 1204 (D. Colo. 1998).
(4) Starting Work: Within fifteen months of completion of the RI/FS (i.e., issuance of the ROD), the lead agency must commence "substantial continuous physical on-site remedial action," 120(e)(2).
2. FEDERAL PROPERTY TRANSFERS: § 120(h) (as amended)
a. Notice. "[W]henever any department, agency, or instrumentality of the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of, the head of such department, agency, or instrumentality shall include in such contract notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete search of agency files." Section 120(h)(1). Form of notice is set forth in regulations at 40 C.F.R. Part 373 (1992). See generally Hercules v. Environmental Protection Agency, 938 F.2d 276 (D.C. Cir. 1991)(reviewing EPA rule on federal notice and covenant requirements when transferring real property contaminated by hazardous substances).
b. Contents of certain deeds- In accordance with EPA regulations at 40 C.F.R. Part 373, any deed to transfer real property owned by the United States on which "any hazardous substance was stored for one year or more, known to have been released, or disposed of," must contain:
(1) a notice of the type and quantity of such hazardous substances, notice of the time at which such storage, release, or disposal took place, and a description of the remedial action taken, if any;
(2) a covenant warranting that -- (I) all remedial action necessary to protect human health and the environment with respect to any such substance remaining on the property has been taken before the date of such transfer, and (II) any additional remedial action found to be necessary after the date of such transfer shall be conducted by the United States; and
(3) a clause granting access if remedial or corrective action is necessary.
(4) The requirements of the covenant shall not apply in any case in which the person or entity to whom the property is transferred is a potentially responsible party with respect to such real property. These requirements are also not applicable if the property, to be closed or realigned, is leased and certain other conditions are met.
(5) Deferral. EPA with concurrence of State Governor may defer requirements of remedial action following certain required findings in Section 120(h)(3)c). Such a deferral does not change the obligations of the Federal Agency Section 120(h)(3)(c)(iv).
(6) Warranty. When necessary cleanup work is done, the U.S. will give a warranty to the transfer. Section 120(h)(3)(c)(iii) see Conservation Law Foundation v. Department of Air Force, 864 F.Supp. 265 (D. N.H. 1994).
3. THE COMMUNITY ENVIRONMENTAL RESPONSE FACILITIES ACT ("CERFA"), SECTIONS 120 (h)(4) and (h)(5):
a. Scope - CERFA applies to any federal property "on which the United States plans to terminate federal government operations" except certain DOD property subject to base closure legislation; the amendments clarify somewhat the extent of the due diligence search.
b. Petroleum Products- The agency must, in addition to the other requirements of Section 120, identify property where petroleum products were treated, stored, disposed of etc., and 6 months prior to any "termination of operations" must identify portions of the property that are not. contaminated;
c. EPA Concurrence- For uncontaminated areas that are part of parcels listed on the NPL, the agency must seek concurrence from EPA with the delineation of uncontaminated property;
d. State Concurrence- For such property that is NOT listed on the NPL, the concurrence must be sought from "the appropriate state official"; concurrence is presumed if not denied within 90 days;
e. When "all" remedial action taken- CERFA amends Section 120(h)(3) by defining when "all remedial action has been taken" as the point when "the construction and installation of an approved remedial design has been completed, and the remedy has been demonstrated to the Administrator to be operating properly and successfully."
f. Leases- CERFA requires federal agencies to notify the state of any lease of the property the term of which extends past the date federal operations are terminated. Note that Section 2834 of the 1996 Defense Authorization Act amended Section 120(h)(3) to specifically allow DOD to enter into long-term leases for contaminated property, subject to certain specified conditions.
g P.L.104-106 and 104-201 (1999) added CERCLA Sections 120(a)(4), (d), and (h) excepted real property leases from covenant requirements but directed federal agency leasing property at installations approved for closure or realignment to make a determination that the lease use would be consistent with protection of human health and the environment and that the United States would take all necessary environmental remedial action.
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