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Federal Facilities and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)/Superfund

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, regulates the cleanup of hazardous substance sites and imposes liability for cleanup on the responsible parties. Sites owned or used by Federal agencies are subject to this statute. Responsibilities governed by this statute include the management of hazardous substances, reporting releases of hazardous substances, and cleaning up environmental contamination. To learn more about the responsibilities of Federal facilities to investigate and clean up contamination at sites they own or operate or previously owned or operated, go to Federal Facilities Cleanup Enforcement.

CERCLA §120 states the general principle that Federal agencies must comply with substantive and procedural CERCLA requirements to the same extent as private entities. Federal facilities are subject to liability under CERCLA and response actions will follow the standard sequence of events: preliminary assessment, site investigation, listing on the National Priorities List (NPL), remedial investigation, feasibility study, record of decision, remedial design, remedial action, and (if applicable) long-term operation and maintenance.

Remedies selected at a Federal facility must meet CERCLA’s cleanup standards, including compliance with Federal and State Applicable or Relevant and Appropriate Requirements (ARARs). CERCLA §120 contains a waiver of sovereign immunity to permit individuals and States to bring “citizens suits” if a federal agency is not complying with CERCLA. The statutory authorities and requirements are as follows:

General Application of CERCLA Authority to the Federal Government - Each Federal agency shall be subject to CERCLA to the same extent as a private entity, including liability (save for a few exceptions).

Notice of Contamination That Affects Adjacent Property - Each Federal agency shall submit to EPA information on their facility’s hazardous wastes are or have been stored, treated or disposed. This info is compiled by EPA in its RCRA Section 3016 Biennial Hazardous Waste Inventory.

Federal Agency Hazardous Waste Compliance Docket - EPA shall establish a docket listing facilities that manage hazardous wastes or have potential hazardous waste problems along with publishing recent docket entries in the Federal Register. EPA shall take steps to ensure that a Preliminary Assessment (PA) is conducted for each Federal facility on the docket. EPA shall then evaluate facilities for inclusion on the NPL. For more information, please refer to the EPA Docket.

Steps Required for Remedial Actions at Federal Facilities Listed on the NPL - Within 6 months of inclusion on the NPL the Federal agency must commence a Remedial Investigation/ Feasibility Study (RI/FS) to determine the nature and extent of contamination. Within 180 days after review of the RI/FS, the agency head shall enter into an interagency agreement (IAG), often referred to as a Federal Facility Agreement (FFA), with EPA that includes a schedule for the expeditious completion of all necessary remedial actions at the Federal facility and arrangements for long-term operation and maintenance. States are often parties to these agreements too and can enforce their terms along with EPA.

State and Local Participation - EPA and each agency, department, and instrumentality shall provide State and local officials with an opportunity to participate in the planning and selection of a remedial action.

Property Transferred by Federal Agencies - Any contract for the sale or other transfer of property owned by the United States on which any hazardous substance was stored for 1 year, released, or disposed of shall include a notice of the type and quantity of any hazardous substances on the property and notice of the time at which hazardous substances were stored, released, or disposed on the property.

Uses of the Fund for Federal Facilities - Generally, no money in the Superfund shall be available for remedial actions at Federal facilities. CERCLA allows the Fund to be used to finance Federal facility oversight and removal actions that may impact Federal facilities and other Superfund sites, but requires the Fund to be reimbursed when used for removals at Federal facilities by the pertinent Federal agency.

EPA Enforcement

CERCLA §104 authorizes EPA to collect information from, and obtain access to, Federal facilities, including to issue orders compelling access and information. CERCLA §106 authorizes EPA to issue administrative orders to address releases of hazardous substances.

Interagency Agreement - CERCLA §120 requires EPA to enter an agreement with Federal agencies to ensure cleanup under CERCLA at NPL sites.

Administrative Orders – EPA can issue unilateral administrative orders to other federal agencies to compel them to take response actions. However, such orders must be approved by the Attorney General of the United States (Executive Order 12580, Section 4(e)). If a federal agency does not comply with such orders, CERCLA does not provide any legal authority to EPA to enforce the order.

For general Superfund information for other agencies, please also visit FedCenter, an interagency environmental stewardship and compliance assistance center for federal facilities.

 


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