Naturally Occurring Radon and 120(h) transfers
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
75 Hawthorne Street
San Francisco, CA 94105
How does the presence of naturally occurring radon on closing military bases affect the United States' ability to transfer parcels under §120(h) (3) and §120(h) (4)?
Naturally occurring radon is a CERCLA hazardous substance. Its presence on a parcel precludes the transfer of the parcel pursuant to §120(h) (4). However, the statutory limit on taking response actions in response to naturally occurring substances may allow DoD to transfer the parcel pursuant to §120(h) (3) without providing the covenant that all remedial action has been taken as long as DoD complies with the necessary notice requirements.
The program proposed the following analysis of radon
The presence of naturally-occurring radon (or other naturally-occurring radionuclides) should not impact the classification of property as uncontaminated. Some of the military services are including radon survey results in their environmental baseline surveys, but we are not aware of any service changing their property categorization as a result of the presence of radon.
Radon and radionuclides are CERCLA hazardous substances. Radon and radionuclides present interesting situations only when they are naturally occurring substances at closing military bases.
The CERCLA definition of "release" does not exclude natural releases. Naturally occurring releases are, however, excluded from the types of releases to which the President may provide a response action pursuant to Section 104.1 Section 104(a) (3)provides:
The President shall not provide for a removal or remedial action under this section in response to a release or threat of release--
(A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;
An exception to the limitation contained in section lO4(a) (3) is when the "release or threat of release. ..constitutes a public health or environmental emergency and no other person with the authority and capability to respond to the emergency will do so in a timely manner." CERCLA § lO4(a) (4). Based on the above, it is clear that the presence of naturally occurring radon constitutes a release even if the ability to provide a response action is curtailed.2
The inability to take a response action, except in limited circumstances, however, creates an interesting situation. Parcels with naturally occurring radon are parcels where there has been a release or disposal of a CERCLA hazardous substance and thus such parcels are not eligible for transfer under CERCLA § 120(h) (4). The alternative provision in CERCLA pursuant to which parcels at which there has been a release/disposal is section 120(h) (3). Prior to such transfer, DoD must provide a covenant that "all remedial action" has been taken. In the case of naturally occurring radon, however, DoD is precluded from taking a response action unless a public health or environmental emergency is present. The failure of DaD to establish either a public health or environmental emergency precludes DoD from taking a response action which in turn preclude DoD from providing the covenant.
The inability to provide the covenant provides creates two potential outcomes: (1) that DoD is precluded from transferring parcels on which there has been a release or disposal or naturally occurring radon; or (2) that because DaD is not permitted as a matter of statute to take a response action to address the release of naturally occurring radon, it is inappropriate to require DaD to comply with the covenant requirement of section 120(h) (3). Accordingly, DoD would be permitted to transfer such parcels without complying with the covenant that all remedial action has been taken. However, DaD would still be required to comply with the notice provision of section 120(h) (3).
Pursuant to Executive Order 12580, DoD is the lead agency at federal facilities on the NPL and is delegated the authority under Section 104 to take response actions. Return to text.
It should be noted that one court has indicated, without supporting documentation, that "it may be said that where only naturally occurring hazardous materials are present, there has been no release within the meaning of the statute." Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1385 n.9 (E.D.CaJ.. 1991). The statutory language is in direct opposition to this assertion and no additional material was located to support this statement. Return to text.