17 ELR 10120 | Environmental Law Reporter | copyright © 1987 | All rights reserved

The Department of Defense Environmental Cleanup Program: Application of State Standards to Federal Facilities after SARA

Kyle E. McSlarrow

Editors' Summary: The 1986 Superfund amendments have had dramatic impact on environmental law in general, and their specific application to federal facilities is no exception. In this Article, the author outlines the amendments' effects on the Department of Defense's hazardous waste cleanup program, and also analyzes the provisions common to all federal facilities. In particular, the author reviews the increasingly difficult issues involved in applying Superfund requirements as well as Resource Conservation and Recovery Act provisions at the same sites, and suggests an interpretation of the statutes that applies relevant provisions of both yet still avoids duplication and conflict.

Mr. McSlarrow is Assistant to the General Counsel, Department of the Army. The views expressed in this Article are those of the author and do not necessarily represent the views of any government agency.

[17 ELR 10120]

The legal implications of the Comprehensive Environmental Response, Compensation, and Liability Act1 (CERCLA or Superfund) have become a staple of environmental literature,2 and even the recent Superfund Amendments and Reauthorization Act of 1986 (SARA)3 has already been the subject of close scrutiny.4 Nevertheless, in addition to CERCLA's enormous implications for American industry, it has also dramatically affected the Department of Defense (DOD). Although direct Superfund monies may rarely be used to address contamination at federal facilities, SARA provides a comprehensive framework for the conduct of the cleanup program at those facilities. This Article focuses on DOD and how the SARA amendments will affect its effort to clean up contamination at DOD installations.

The DOD Installation Restoration Program

DOD has been in the business of hazardous waste cleanup for over a decade. In 1975, the Department of the Army created the Installation Restoration Program (IR Program), mainly to respond to contamination discovered at Rocky Mountain Arsenal, Colorado, and Weldon Springs Chemical Plant, Missouri, where chemical munitions had been manufactured since World War II. The IR Program's original focus on a few known sites quickly expanded as other contaminated sites were discovered, and eventually all Army installations were assessed for inclusion in the IR Program. In 1976, the Office of the Secretary of Defense established a DOD-wide IR Program led by the Army, although the Navy and Air Force did not formally implement the program until 1980.5 The DOD program's initial goals were to identify, evaluate, and contain migration of contamination leaving DOD installations. Actual restoration of DOD land was considered only when sale or other transfer of the site was contemplated.6

CERCLA as enacted in 1980 authorized the President to respond to releases or substantial threats of releases of hazardous substances.7 This authority was delegated to the Secretary of Defense "with respect to releases from Department of Defense facilities."8 The IR Program was formally designated as the basis for meeting DOD's CERCLA responsibilities in 1981.9 In addition, DOD, as a trustee for natural resources, was responsible for assessing natural resource damage caused by hazardous substance releases at DOD installations and seeking recovery from responsible parties.10

Since CERCLA specifically prohibited the expenditure of Superfund monies on remedial actions at federal facilities,11 DOD received appropriations from Congress to meet its CERCLA responsibilities in the ordinary budget cycle. In the Defense Appropriation Act for Fiscal Year 1984,12 Congress established the Defense Environmental Restoration Account (DERA) to pay for the IR Program and related hazardous waste programs. In addition, DOD was directed to include sites formerly used by DOD within the IR Program.13 From 1975 to fiscal year 1983, DOD spent approximately $200 million on the IR Program.14 Congress has appropriated $375 million to the Defense Environmental Restoration Account for fiscal year 1987.15 In 1985, the DOD Director of Environmental Policy estimated [17 ELR 10121] that the IR Program could ultimately cost as much as $10 billion.16

As with many DOD programs, the DOD IR Program is actually implemented separately by the three military departments and other DOD components, with the Office of the Secretary of Defense providing policy oversight and controlling the disbursement of funds. The DERA remains the principal account for funding projects in the IR Program.17 This account allows the Secretary of Defense to transfer funds to other established accounts within each DOD component. These funds are typically placed in existing "operations and maintenance" accounts for the identification, investigation, research and development, and response to contamination from hazardous substances, pollutants, and contaminants.18 Projects requiring capital expenditures that ordinarily would be classified as military construction are, under DOD policy, budgeted through the normal military construction appropriations process,19 although DERA funds may be used for military construction necessary to a response action if Congress is notified.20

The Army performs perhaps the largest role, in terms of scope, in the DOD IR Program. The Army has two major responsibilities. First, it is responsible for sites it currently owns. The primary responsibility for executing this mission rests with the U.S. Army Toxic and Hazardous Materials Agency (USATHAMA) located at Aberdeen Proving Ground, Maryland.21 USATHAMA is supported by the Army Environmental Hygiene Agency for technical assistance and the U.S. Army Corps of Engineers for construction management. Second, the Army, through the U.S. Army Corps of Engineers, is the Executive Agent for all sites formerly used by DOD in general, even if not used by the Army specifically.22 The Army receives funds for both functions from the Deputy Assistant Secretary of Defense (Environment), and the funds are managed by the Army Environmental Office. Policy and funding oversight is provided by the Office of the Assistant Secretary of the Army (Installations and Logistics).

SARA's Effects

Because DOD owns and operates many facilities that generate hazardous waste, it is responsible both for managing hazardous wastes and for ensuring that any resulting harm to the environment is either prevented or remedied. As a manager of vast holdings of land, DOD is also responsible for evaluating and addressing damage to its natural resources, and, where warranted, to recover from those responsible.23 DOD is also a landlord, with many industrial tenants whose activities contaminate DOD installations. DOD may, as a result, seek to recover costs of responding to such contamination.

The DOD IR Program

In SARA § 211, Congress has for the first time statutorily recognized the close relationship between the IR Program, referred to by SARA as the Defense Environmental Restoration Program (the Restoration Program), and CERCLA.24 The Restoration Program's scope is broader than the response authorities in CERCLA § 104 delegated to the Secretary of Defense.25 The Restoration Program also includes: (1) the "correction of environmental damage (such as detection and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment" and (2) "demolition and removal of unsafe buildings and structures" at sites formerly used by DOD.26

The Restoration Program also directs DOD to "carry out a program of research, development, and demonstration with respect to hazardous wastes."27 Although this effort focuses on hazardous wastes that are found at DOD installations, DOD's role in discovering recycling, reduction, treatment, disposal, and management technologies will have important applications to hazardous waste cleanup efforts generally. This program will therefore be carried out with the consultation and cooperation of EPA, and DOD may contract with, or make grants to, universities and other entities for the necessary research and development.28

In addition, SARA directs DOD to work with the Agency of Toxic Substances and Disease Registry in the Department of Health and Human Services (HHS) to develop toxicological profiles of unregulated hazardous substances commonly found at DOD installations.29 Similarly, DOD is to work with EPA in developing health advisories on hazardous substances at DOD installations.30 In both cases, DOD is to enter into memoranda of [17 ELR 10122] understanding with EPA and HHS that contemplate the transfer of DOD funds and personnel.31

Response Authorities Under SARA

The authority for response actions32 given by SARA § 211 to the Secretary of Defense under the Restoration Program is also broad. In addition to the comparable authorities delegated by the President to the Secretary of Defense under CERCLA § 104,33 DOD must carry out "response actions with respect to release of hazardous substances" from sites that are either now owned by, leased to, or otherwise possessed by DOD or had that status at "the time of actions leading to contamination by hazardous substances."34 A major limitation on DOD's response authority exists when the Administrator of EPA has already provided for a response action by a potentially responsible person.35

In some circumstances, DOD's response authority will extend beyond the DOD installation boundary.36 SARA provides authority for DOD to enter into agreements with federal, state, and local agencies to obtain their services in assisting with Restoration Program responsibilities.37 Services include responses to "off-site contamination possibly resulting from the release of a hazardous substance or waste" at a DOD facility.38 This provision should permit greater coordination and cooperation between states, EPA, and DOD in their efforts to respond to off-site contamination. Until SARA, it was unclear whether DOD could transfer funds to other environmental agencies under these circumstances. The result was that DOD would be unable to participate in off-site activities in circumstances for which it was only possibly responsible or that, if DOD responded, there was likely to be duplication in the remedial effort by the various agencies with environmental responsibilities. This new provision allows another agency to pursue, in cooperation with DOD, the necessary actions with DOD funds.

DOD's authority to respond to releases does not operate in a vacuum. SARA directs DOD to carry out the Restoration program in consultation with the Administrator of EPA.39 Moreover, DOD must notify the appropriate regional offices of EPA and state and local authorities of the discovery of releases, the extent of the contamination, proposals to address the contamination, and the commencement of each phase of any response action.40 DOD must allow an adequate opportunity for comment by these agencies, unless the action is a removal action "taken because of imminent and substantial endangerment to human health or the environment and consultation would be impractical."41 Whenever possible, DOD is to establish technical review committees to review and comment on proposed response actions.42 These committees are to include representatives from DOD, EPA, state and local agencies, and the public involved in the action.43

In short, SARA places a premium on consensus building, especially where DOD is concerned. Whereas DOD has in the past been legally authorized to carry out its CERCLA responsibilities with a minimum of outside oversight, SARA now mandates a much larger role by EPA, the states, and the public. This is a particularly important aspect of SARA, reflected by the fact that the Restoration Program is not only subject to its own requirements but also those applicable to federal facilities generally.

CERCLA § 120 and Federal Facilities

Under SARA § 211, DOD must carry out the identification, investigation, research and development, and cleanup of contamination from hazardous substances, pollutants or contaminants "subject to, and in a manner consistent with, section 120" of CERCLA.44 Section 120 contains a waiver of sovereign immunity that includes liability under § 107, and directs federal facilities to comply with CERCLA both procedurally and substantively to the same extent as any nongovernmental entity.45

Federal agencies are to comply with all rules applicable to preliminary assessments, to evaluation under the National Contingency Plan (NCP),46 to inclusion on the National Priorities List (NPL), or applicable to remedial actions.47 [17 ELR 10123] Thus, where DOD is implementing a remedial action, regardless of whether the facility is listed on the NPL, the full panoply of procedures found in the NCP will come into play. Facilities not listed on the NPL are subject both to the authorities delegated to the Secretary of Defense under CERCLA § 104, and to the requirements of the Restoration Program under SARA § 211. Facilities listed on the NPL are subject to additional requirements under CERCLA § 120.

Inclusion on the NPL invokes requirements that significantly affect how remedial actions are implemented. Preliminary assessments of all federal facilities are to be commenced by March 1988, with sites added to the NPL by March 1989.48 Once a federal facility is placed on the NPL, CERCLA § 120(e) sets forth schedules for completion of certain tasks.49 Perhaps the most important of these is the requirement that, at the completion of a remedial investigation and feasibility study, the head of the agency concerned enter into an interagency agreement with the Administrator of EPA for the "expeditious completion … of all necessary remedial actions at such facility."50 Interagency agreements will review remedial action alternatives, with selection of a remedial action by the Administrator in the event of a disagreement, and will provide a schedule for completion of a remedial action and long-term monitoring and maintenance.51 The ability of the Administrator to make the ultimate selection of the remedial action at NPL sites represents a fundamental change from prior practice. It reflects Congress' intention that the Administrator "make an independent determination that the selected remedial action is consistent with the National Contingency Plan and is the most appropriate remedial action for the affected facility."52

Cleanup Standards at DOD Sites and the Application of State Laws

CERCLA § 121 now addresses cleanup standards, often described as the "how clean is clean" issue. This issue was left unresolved after the original enactment of CERCLA in 1980. With the passage of SARA, Congress has provided explicit guidelines as to the application of other federal and state laws and regulations to response actions selected, required, or agreed to by the federal government.53 Legally applicable, relevant, and appropriate requirements (ARARs) contained in state environmental and siting laws that are more stringent than federal ARARs must be applied to remedial actions.54

Courts ultimately will have to resolve the proper application of state laws and requirements in situations where DOD undertakes response actions under CERCLA § 104. The difficulty arises because § 120 on federal facilities contains a provision that appears to address state cleanup standards and requirements that, in the context of § 104 response actions, are already addressed in detail in § 121 on cleanup standards. Section 120(a)(4) provides that "[s]tate laws concerning removal and remedial action, including State laws concerning enforcement, shall apply to [federal facilities] when such facilities are not included in the National Priorities List."55 This provision raises two issues: first, does § 120(a)(4) exempt federal facilities on the NPL from following state standards and requirements as provided in § 121, and second, what is the effect of § 121 on federal facilities not listed on the NPL.

Despite the initial inference conveyed by § 120(a)(4), a reading of § 120 in its entirety compels the conclusion that NPL sites must nonetheless follow the guidelines set forth in § 121 on the application of state standards. Section 120(a)(2) provides that all "guidelines, rules, regulations, and criteria … applicable to remedial actions at facilities" at which hazardous substances are located are also applicable to federal facilities.56 Since § 121 controls response actions that are "selected" or "agreed to by the President,"57 § 121 will control not only § 104 response actions but also other response actions at NPL sites, such as those under DOD's Restoration Program.58 This conclusion is strengthened by the provision in § 121 for state challenges to the "President's" final remedial action plan that does not achieve state standards at federal facilities.59 This interpretation is also supported by the legislative history. In a colloquy with Congressman Wirth during the House debate on the SARA Conference Report, Congressman Eckart, a member of the Conference Committee on SARA, stated that "[s]ection 120(a)(4) does not alter the way section 121 applies substantive State standards to remedial actions" at federal facilities on the NPL.60 Thus, references to the application of state standards in SARA must not be read alone, but rather in light of § 121.

Similarly, any analysis of the effect of § 120(a)(4) on sites not listed on the NPL should also consider the interplay between that provision and § 121. This is particularly important because actions undertaken under the authority of CERCLA § 104 at federal facilities must comply with § 121 in determining the application of state standards or requirements [17 ELR 10124] whether or not they are listed on the NPL. On its face, § 120(a)(4) suggests that for non-NPL sites, response actions must do more than comply with more stringent state standards under the procedures and exemptions set forth in § 121; it suggests that response actions at non-NPL sites are to comply with all state laws, including enforcement of those laws, notwithstanding § 121.61 There thus exists the potential for conflict between § 120(a)(4) and § 121 where a federal facility exercises authority under § 104 at non-NPL sites.

Section 120(a)(4) must be examined in light of the cleanup regime established by SARA and its legislative history.62 Section 120, including § 120(a)(4), and § 121 on cleanup standards were drawn from, and closely follow, provisions of the House bill on SARA that was sent to the Committee on Conference.63 The federal facilities section found in the House bill, like the section in SARA, differentiated between NPL sites and non-NPL sites and provided that state laws would apply to non-NPL sites. But, importantly, the section on cleanup standards in the House bill contemplated that its provisions would only apply to remedial actions undertaken by the Administrator of EPA, not the President, as ultimately appeared in CERCLA § 121.64 It appears that the House version of SARA contemplated no nexus between the federal facilities section and the section on cleanup standards for the simple reason that they addressed different circumstances. If a site was listed on the NPL the Administrator had to assist in selecting the remedial action and, thus, had to comply with the section on cleanup standards.65 The House version of SARA that applied state law to non-NPL sites merely filled the gap not covered in the section on cleanup standards and reflected a judgment that state law would control cleanups at non-NPL sites.

The change from "Administrator" to "President" that occurred during the Conference on SARA explains, in part, the apparent inconsistency between § 120(a)(4), and § 121 and aids the resolution of the interpretation of those sections. Section 120 was agreed upon by the Conferees before § 121, at a time when the resolution of the cleanup standards section was much in doubt.66 At that time, the only basis on which to judge the outcome was the House version of § 121 which spoke in terms of "Administrator." There was, therefore, no apparent inconsistency by retaining § 120(a)(4) to address state law at non-NPL sites. With the final agreement by the Conferees to substitute "President" for "Administrator," however, Congress showed an intent to give a broader effect to § 121 by also including § 104 actions of the President within its scope. Thus, since a federal agency, such as DOD, stands in the shoes of the President in carrying out § 104 actions, § 121 rather than § 120(a)(4) controls the application of state standards and requirements.

This conclusion is supported by a textual analysis of SARA. Section 121 speaks not only in terms of state standards and requirements but also to states' roles in participating in selection of cleanup plans and, where appropriate, enforcing state standards. Section 120 and § 121, together, reflect a congressional judgment to involve states early in the remedial planning process, to leave to the President the ultimate decision on what standards to apply, but to provide the states with the means for enforcing the application of cleanup standards that they regard as necessary. In this regard, it is important to note that § 120(f) mandates that state participation in the development of remedial actions "shall be provided in accordance with section 121."67

Section 121(f) provides that the President must provide a state with an opportunity to concur or not concur at least 30 days before the selection of a remedial action that does not attain an ARAR at a federal facility.68 If the state does not concur and desires to conform the remedial action to the ARAR, the state may sue in federal court.69 If the state establishes that the President's decision is not supported by substantial evidence, based on the administrative record, the remedial action will be modified.70 If the state fails to establish that the President's decision was not supported by substantial evidence, the state has the option to pay the additional costs of conforming the response action to the ARAR in question.71

There is support in the legislative history for the proposition that states can only enforce state standards through the provisions set forth in § 121. Section 121(e)(2) provides that "a State may enforce any Federal or State standard, requirement, criteria, or limitation to which the remedial action is required to conform under this Act in the United States District Court for the district in which the facility is located."72 In a colloquy during the House debate on the SARA Conference Report, Congressman Eckart stated that when "a site is cleaned up in accordance with section 121, including requirements relating to State involvement, a State may not then bring a separate action in State court to impose additional or more stringent State standards."73

Congress has, in § 121, specifically identified the procedures that are to be followed when federal agencies and states disagree on cleanup standards. Although not free from doubt, the better interpretation of § 120(a)(4) and § 121 gives effect to both and concludes § 104 actions are [17 ELR 10125] to comply with state ARARs through § 121 rather than § 120(a)(4). This is not to suggest that § 120(a)(4) is meaningless. Rather, the reference in § 120(a)(4) to "[s]tate laws concerning removal and remedial action" should be read, in light of § 121, to refer to the detailed provisions on state standards and requirements found in § 121 when performing § 104 response actions.74 In circumstances presented by response actions outside the authorities of § 104, there is no conflict between § 120(a)(4) and § 121.

DOD and CERCLA Litigation

DOD has three principal roles in CERCLA litigation. First, as a natural resources trustee, DOD is authorized to assess damages, and where appropriate, to recover natural resource damages from those responsible.75 Second, as an owner of sites that are contaminated, DOD has the option to seek response costs from potentially responsible parties, even where DOD is also responsible, in part, for the contamination. The broad scope of liability under CERCLA offers DOD an opportunity to recover response costs from other potentially responsible parties, ordinarily industrial tenants on DOD installations.76 SARA strengthened DOD in this regard by amending CERCLA to include an express right of contribution from other liable parties.77 DOD will in most instances be seeking contribution because it will also be a liable party by virtue of its ownership of the property involved.78 SARA also provides DOD an incentive to bring such actions. Amounts recovered for response costs will be credited directly to the Defense Environmental Restoration Account.79

Finally, DOD's actions under the DOD Restoration Program will inevitably be the focus of litigation both with respect to how DOD selects response actions and to the Restoration Program's proper scope in relation to other environmental laws.

The Restoration Program and Corrective Action Authorities

One of the more difficult issues that courts will face is the interplay between DOD response actions taken under CERCLA, as amended by SARA, and the role of corrective action authorities under the Resource Conservation and Recovery Act (RCRA).80 Courts will be required to determine the proper scope of CERCLA § 120(i). That provision states that nothing in § 120 "shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of [RCRA] (including corrective action requirements)."81 The Conference Committee Report on SARA stated that the reference to "corrective action" is intended to "explicitly refer to the requirements of Section 3004(u)."82 Section 3004(u) was part of the Hazardous and Solid Waste Amendments of 1984,83 which amended RCRA.

RCRA provides an extremely complicated framework for the management of solid and hazardous waste. While RCRA focuses on the current generation, transportation, treatment, storage, and disposal of hazardous waste, § 3004(u) requires that any RCRA permit include corrective action for past releases of hazardous wastes or constituents from any solid waste management unit at a storage, treatment, or disposal "facility" seeking a permit.84 Permits "shall contain schedules of compliance for such corrective action" where such action cannot be completed before the permit is issued.85

EPA has interpreted "facility" broadly to include all contiguous property under the control of an owner or operator at which the units subject to permitting are located,86 and the legislative history of SARA endorses that interpretation.87 This definition makes sense in its application to private parties, but is awkwardly applied to federal installations, some of which are many hundreds of square miles. EPA has also interpreted "solid waste management unit" broadly to include any waste management unit from which "hazardous constituents might migrate, irrespective of whether the units were intended for the management of solid and/or hazardous wastes."88 Section 3004(u) authority will eventually be delegated by EPA to states with authorized RCRA programs.89

The difficulty in implementing § 3004(u) is that it is aimed at addressing the same releases that are covered by CERCLA. DOD installations with ongoing responses under the Restoration Program and CERCLA § 104 will [17 ELR 10126] typically also have RCRA facilities requiring permits, or operation and solid waste management units, under EPA's extremely broad reading of that term. Some sites will be subject to both the CERCLA Restoration Program and RCRA § 3004(u).90

Several untoward consequences would flow from an unqualified application of § 3004(u). Section 3004(u) addresses releases of "hazardous waste or constituents from any solid waste management unit," and therefore its scope is less inclusive than the Restoration Program's mandate to respond to "hazardous substances, pollutants or contaminants."91 Corrective action under § 3004(u) has different requirements and procedures that address site characterizations, information gathering, and enforcement than those found in the CERCLA program and, therefore, its application to CERCLA sites would be duplicative and possibly a waste of resources. More importantly, § 3004(u) authority would place EPA, or the states, in a position where they could curtail operations at an installation merely by withholding needed RCRA permits until a facility complied with all the requirements imposed through § 3004(u), despite the presence of ongoing CERCLA actions.92 This is neither necessary nor prudent. Indeed, SARA recognizes that response actions will encompass sites already addressed by RCRA,93 in addition to sites not covered by RCRA § 3004(u). The increased cost of accommodating two layers of regulatory control could only have the result of slowing down the process of cleanup, and at fewer sites.

Section 120(i) does not require this result. Section 120(i) merely states that nothing in the federal facilities section of CERCLA is intended to "affect or impair" obligations to comply with RCRA, including § 3004(u).94 The Conference Committee Report on SARA states that "[f]ederal facilities are subject to corrective requirements to the same extent as" private facilities.95 During the House debate on the SARA Conference Report, Congressman Dingell stated that the "corrective action authorities apply to Federal facilities, even though they are listed on the National Priorities List."96 Similarly, the legislative history of SARA indicates that § 3004(u) applies to a federal facility, "notwithstanding section 121(e) of the Superfund bill, which eliminates the permit requirements for the portion of any removal or remedial action conducted onsite."97 These statements reaffirm the applicability of § 3004(u) to federal facilities but do not establish the extent to which that section will apply when there are ongoing CERCLA operations at a facility.

Several statements made during the House and Senate debates on the SARA Conference Report do support an interpretation of CERCLA § 120(i) that results in an unqualified application of RCRA § 3004(u) to federal facilities. During the House debate, Congressman Synar stated that a state or EPA "may exercise the corrective action authorities … to expedite cleanup for any such onsite cleanups or any solid waste management units on a Federal installation."98 During the Senate debate, Senator Stafford stated that the "time frames [provided in § 120] may be shortened by EPA or an authorized State in the context of a permit compliance schedule or administrative order, pursuant to section 3004(u) or section 3008(h) of RCRA."99 In a colloquy during the House debate, Congressman Eckart, a member of the Conference Committee on SARA, stated that the phrase "any requirement of the Solid Waste Disposal Act" included standards and regulations adopted by a state under RCRA.100 One interpretation of § 120(i), reflected by these statements, is that the full panoply of authorities within § 3004(u) will apply to all sites notwithstanding, and even in spite of, existing CERCLA actions.

Nevertheless, this conclusion would appear to conflict with the statutory scheme enacted in CERCLA and with other portions of the legislative history.101 Section 121(d) requires remedial actions to obtain a federal, or more stringent state, standard, requirement, criteria, or limitation that is "legally applicable" to the hazardous substance, pollutant or contaminant that remains on site.102 RCRA requirements are specifically identified as included in § 121.103 Section 121 thus already encompasses the requirements of RCRA and, in particular, § 3004(u).104 Although those requirements may, under limited circumstances, be waived by the President under the procedures set forth in § 121,105 hazardous substances, pollutants, or contaminants can only be transferred to off-site facilities in full "compliance with section 3004" and "all applicable State requirements."106

An analysis of § 120(i) that takes into account § 121 thus suggests that § 120(i) merely states Congress' intention that nothing in § 120 preempts the legal applicability of RCRA corrective action requirements to actions taken under CERCLA § 104, but these requirements are only applied through the procedures outlined in CERCLA § 121.107 [17 ELR 10127] Moreover, states retain, under § 121, their right to enforce standards and requirements, including the requirements of § 3004(u), in federal court.108 In this way, § 120(i) is construed consistently with § 121.109

This interpretation of § 121's role is also supported by other provisions in SARA and the legislative history. At the outset, it is important to note that § 120(i) states only that nothing in § 120 shall "affect or impair" the obligation of a federal facility to comply with RCRA.110 Furthermore, § 120(f) provides that participation by state officials in the selection of remedial actions "shall be provided in accordance with section 121."111 The Conference Report states that this "clarifies that CERCLA, together with RCRA, requires Federal facilities to comply with all Federal, State and local requirements, procedural and substantive, including fees and penalties, except as provided in section 121."112

Although there were conflicting statements during the debates on the SARA Conference Report as to whether state standards are preempted by CERCLA,113 several statements support the application of state standards solely through the procedures of § 121. Congressman Lent, for example, stated that CERCLA "preempts other Federal and State laws. It could not be otherwise given the structure of the statute. The laws themselves are preempted, but the Federal and State standards are to be applied through section 121."114 Thus, despite several statements that suggest a broader application of § 3004(u) is warranted, an analysis of the entire CERCLA scheme for cleanup and the legislative history indicates that this may not be what Congress in fact intended. The better view appears to be that corrective action authorities under RCRA retain their legal applicability by virtue of § 120(i) and are incorporated into, and applied through, § 121 for remedial actions taken under CERCLA § 104.

The ambiguous relationship between RCRA and CERCLA is potentially troublesome. It is possible that EPA, when it delegates § 3004(u) authority to the states, could adjust the authorities to account for the special circumstances posed by federal facilities and, in particular, the DOD Restoration Program. It is to be hoped that EPA, the states, and federal facilities will cooperate so that the authorities provided by RCRA and CERCLA are complementary. But it seems more likely that differences in opinion over cleanup actions will be fought in the courts, focusing on the authorities found in RCRA or CERCLA.

Conclusion

SARA is the latest step taken by Congress to build upon existing DOD responsibilities for the cleanup of hazardous waste at DOD installations. SARA incorporates the DOD Restoration Program into the national program reflected in CERCLA and to that extent should have the effect of strengthening the commitment of DOD to fulfill those obligations. Yet SARA does not solve all the problems left unresolved by CERCLA. The next few years will be crucial in determining whether the state, EPA, and DOD establish a workable framework for pursuing the same goal — cleanup. That task will depend greatly on the resolution of the proper interaction between SARA's comprehensive treatment of how cleanups are to be conducted at federal facilities and RCRA's corrective action authorities.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. 44001-44081.

2. The annual ELR Law Review Bibliographies issued in 1983 through 1986 list 109 law review and other journal articles discussing CERCLA. See ELR INDEXES 4001.

3. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

4. See, e.g., Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

5. GENERAL ACCOUNTING OFFICE, EFFORTS TO CLEAN UP DOD-OWNED INACTIVE HAZARDOUS WASTE DISPOSAL SITES (Apr. 12, 1985) [hereinafter 1985 GAO REPORT].

6. Defense Environmental Quality Program Policy Memorandum 80-6 (June 24, 1980).

7. CERCLA, § 104(a) and (b), 42 U.S.C. § 9604(a) and (b), ELR STAT. 44011. Response authority extends to pollutants or contaminants, even if they are not "hazardous substances," if they present an imminent and substantial danger to public health or welfare.

8. Exec. Order No. 12316, § 2(c), 46 Fed. Reg. 42237 (1981).

9. Defense Environmental Quality Program Policy Memorandum 81-5 (Dec. 11, 1981) [hereinafter DEQPPM 81-5].

10. National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. §§ 300.72 and 300.74, Exec. Order No. 12316, § 1(d)(1), 46 Fed. Reg. 42237 (1981). For a more detailed discussion of the responsibilities of natural resources trustees, see Breen, Natural Resource Recovery by Federal Agencies: A Roadmap to Avoid Losing Causes of Action, 13 ELR 10324 (Oct. 1983).

11. CERCLA, § 111(e)(3), 42 U.S.C. § 9611(e)(3), ELR STAT. 44036.

12. Pub. L. No. 98-212, 97 Stat. 1421 (Dec. 8, 1983).

13. Id.

14. 1985 GAO REPORT, supra note 5, at ii.

15. See CONFERENCE REPORT ON DOD APPROPRIATIONS ACT FOR FY 1987, H.R. REP. No. 1005, 99th Cong., 2d Sess. 94 (Oct. 15, 1986).

16. 17 Env't Rep. (BNA) 435 (July 18, 1986) (statement by Mr. Carl J. Schafer Jr.).

17. SARA § 211 (to be codified at 10 U.S.C. § 2701(b)).

18. SARA § 211 (to be codified at 10 U.S.C. § 2701(b)).

19. Memorandum from the DOD Director of Environmental Policy to the Deputy for Environment, Safety and Occupational Health, Office of the Assistant Secretary of the Army (Installations and Logistics), et al. (June 21, 1980).

20. SARA § 211 (to be codified at 10 U.S.C. § 2810). This provision was added by SARA in order by bypass the normal procedures required for military construction projects, a procedure that "represents an unwise and unnecessary delay when we are talking about the immediate need to cleanup toxic waste at military bases." 131 CONG. REC. S12020 (daily ed. Sept. 24, 1985) (statement of Sen. Wilson).

21. Army Regulation No. 10-11 (Dec. 15, 1983).

22. Memorandum from DOD Director of Environmental Policy to U.S. Army Chief of Engineers (Feb. 27, 1985).

23. See, e.g., United States v. Shell Oil Co. (D. Colo. complaint filed Dec. 9, 1983), ELR PEND. LIT. 65808.

24. SARA § 211 (to be codified at 10 U.S.C. § 2701(a)(1)). The provisions enacting the Defense Environmental Restoration Program were added as an amendment from the floor to S. 51, the Senate's version of the Superfund bill. 131 CONG. REC. S12018-20 (daily ed. Sept. 24, 1985) (sponsored by Sen. Wilson). Section 211 is very similar to § 213 of H.R. 2817 that passed the House and was sent to the Committee on Conference. Congress emphasized the program's importance by directing the Secretary of Defense to identify an office within the Office of the Secretary of Defense that will have the responsibility to carry out the restoration program. SARA § 211 (to be codified at 10 U.S.C. § 2701(a)(4)). Presumably, this function will remain with the Office of the Deputy Assistant Secretary of Defense (Environment).

25. CERCLA § 104(a) and (b), 42 U.S.C. § 9604(a) and (b), ELR STAT. 44011. Section 104 authority, originally delegated to the Secretary of Defense by Exec. Order. No. 12,316, § 2(c), 3 C.F.R. 168, 170 (1982), has again been delegated to the Secretary of Defense by Exec. Order No. 12,580, § 2(d), 52 Fed. Reg. 2923, 2924 (1987). The authority now extends to releases "on" or where "the sole source of the release is from" any DOD facility.

26. SARA § 211 (to be codified at 10 U.S.C. § 2701(b)).

27. SARA § 211 (to be codified at 10 U.S.C. § 2702).

28. SARA § 211 (to be codified at 10 U.S.C. § 2702(a), (c), and (d)).

29. SARA § 211 (to be codified at 10 U.S.C. § 2704).

30. SARA § 211 (to be codified at 10 U.S.C. § 2704(d)).

31. SARA § 211 (to be codified at 10 U.S.C. § 2704(c) and (d)).

32. "Response" is defined in CERCLA as encompassing "removal" or "remedial" actions. CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. 44007. A "removal" action is a short-term cleanup action, CERCLA § 101(23), 42 U.S.C. § 9601(23), ELR STAT. 44007, whereas a "remedial" action envisions a long-term remedy of the contamination at that site, CERCLA § 101(24), 42 U.S.C. § 9601(24), ELR STAT. 44007.

33. Exec. Order No. 12580, § 2(d), 52 Fed. Reg. 2923, 2924 (1987).

34. SARA § 211 (to be codified at 10 U.S.C. § 2701(c)). It is unclear why this language is restricted to release of "hazardous substances." One of the goals of the Restoration Program is "the identification, investigation, research and development, and cleanup of contamination from hazardous substances, pollutants and contaminants. SARA § 211 (to be codified at 10 U.S.C. § 2701(b)(1)) (emphasis added). Thus, it may be that those provisions relating to response actions should be read, by reference to the § 104 authorities delegated to the Secretary of Defense, to include the authority to act in the event of "a release or substantial threat of a release of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare." CERCLA § 104(a)(1)(B), 42 U.S.C. § 9604(a)(1)(B), ELR STAT. 44011.

35. SARA § 211 (to be codified at 10 U.S.C. § 2701(c)(2)). Section 2701(c) invokes the EPA Administrator's settlement authority under CERCLA § 122, 10 U.S.C. § 9622, ELR STAT. 44058. That authority is applicable to federal facilities, including DOD, under CERCLA § 120(e)(6), 42 U.S.C. § 9620(e)(6), ELR STAT. 44051, which allows the Administrator, in consultation with the head of any federal agency, and with the approval of the Attorney General, to enter into an agreement with a potentially responsible party to conduct a remedial action. A "potentially responsible party" is one who may be liable under CERCLA § 107.

36. SARA authorizes DOD to carry out "response actions with respect to releases of hazardous substances from" currently and formerly owned sites. SARA § 211 (to be codified at 10 U.S.C. § 2701(c)(1)). (Emphasis added).

37. SARA § 211 (to be codified at 10 U.S.C. § 2701(d)). CERCLA § 119's contractor indemnification provisions also apply to contractors who carry out DOD response actions.

38. SARA § 211 (to be codified at 10 U.S.C. § 2701(d)).

39. SARA § 211 (to be codified at 10 U.S.C. § 2701(a)(3)).

40. SARA § 211 (to be codified at 10 U.S.C. § 2705(a)). DOD must also report to Congress annually on the progress made in the Restoration Program with detailed site-specific information. SARA § 211 (to be codified at 10 U.S.C. § 2706).

41. SARA § 211 (to be codified at 10 U.S.C. § 2705(b)).

42. SARA § 211 (to be codified at 10 U.S.C. § 2705(c)).

43. Id.

44. SARA § 211 (to be codified at 10 U.S.C. § 2701(a)(2)). See also Exec. Order No. 12580, § 2(d), 52 Fed. Reg. 2923, 2924 (1987).

45. CERCLA § 120(a), 42 U.S.C. § 9620, ELR STAT. 44051.

46. The National Contingency Plan incorporates the procedures for responding to releases of hazardous substances, pollutants, or contaminants. See supra note 10.

47. CERCLA § 120(a)(2), 42 U.S.C. § 9620(a)(2), ELR STAT. 44051.

48. CERCLA § 120(d), 42 U.S.C. § 9620(d), ELR STAT. 44052.

49. 42 U.S.C. § 9620(e), ELR STAT. 44052.

50. CERCLA § 120(e)(2), 42 U.S.C. § 9620(e)(2), ELR STAT. 44052.

51. CERCLA § 120(e)(4), 42 U.S.C. § 9620(e)(4), ELR STAT. 44052. The procedures to be invoked prior to selection of the remedial action by the Administrator are set forth in Exec. Order No. 12580, § 10, 52 Fed. Reg. 2923, 2928 (1987).

52. CONFERENCE REPORT ON SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986. H.R. REP. NO. 962, 99th Cong., 2d Sess. 242 [hereinafter SARA CONFERENCE REPORT] (emphasis added). One other provision found in § 120 deserves mention. CERCLA § 120(j), 42 U.S.C. § 9620(j), ELR STAT. 44054 states that the President "may issue such orders regarding response actions [at DOD sites] as may be necessary to protect the national security interests of the United States at that site." An order may include an exemption from any requirement contained in SARA, but an exemption may not exceed one year and Congress must be notified. SARA § 120(j)(1). The legislative history states that this waiver "should be applied only in a site-specific and instance-specific basis, and with appropriate restraint." SARA CONFERENCE REPORT at 243.

53. See generally Atkeson et al., supra note 4, 16 ELR at 10385 (Dec. 1986).

54. CERCLA § 121(d)(2)(A)(ii), 42 U.S.C. § 9621(d)(2)(A)(ii), ELR STAT. 44055.

55. CERCLA § 120(a)(4), 42 U.S.C. § 9620(a)(4), ELR STAT. 44051 (emphasis added).

56. CERCLA § 120(a)(2), 42 U.S.C. § 9620(a)(2), ELR STAT. 44051.

57. CERCLA § 121(d)(1), 42 U.S.C. § 9621(d)(1), ELR STAT. 44055.

58. Both § 104 and § 121 authorities have been delegated to the Secretary of Defense. Exec. Order No. 12580, § 2(d), 52 Fed. Reg. 2923, 2924 (1987).

59. SARA § 121(f)(3)(A).

60. 132 CONG. REC. H9588 (daily ed. Oct. 8, 1986).

61. In this regard, see Congressman Florio's statement during the House debate on the Conference Report that, under § 120(a)(4), "State laws have full force and effect" with respect to federal facilities. 132 CONG. REC. H9588 (daily ed. Oct. 8, 1986).

62. "A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed." SUTHERLAND, STATUTORY CONSTRUCTION § 46.05 (4th ed. 1984) (citations omitted).

63. See §§ 120 and 121 of H.R. 2817. CERCLA § 120(a)(4) is identical to § 120(a)(4) of H.R. 2817. The Senate bill had no comparable provisions.

64. See § 121 of H.R. 2817.

65. See § 121(e)(2) of H.R. 2817.

66. See INSIDE E.P.A., Mar. 28, 1986, at 6. INSIDE E.P.A., May 23, 1986, at 4.

67. CERCLA § 120(f), 42 U.S.C. § 9620(f), ELR STAT. 44053.

68. CERCLA § 121(f)(3)(A), 42 U.S.C. § 9621(f)(3)(A), ELR STAT. 44057. This decision must be based on the President's finding that one of the exceptions in § 121(d)(4) applies.

69. CERCLA § 121(f)(3)(B), 42 U.S.C. § 9621(f)(3)(B), ELR STAT. 44057.

70. CERCLA § 121(f)(3)(B)(ii), 42 U.S.C. § 9621(f)(3)(B)(ii), ELR STAT. 44057.

71. CERCLA § 121(f)(3)(B)(iii), 42 U.S.C. § 9621(f)(3)(B)(iii), ELR STAT. 44057.

72. CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2), ELR STAT. 44056.

73. 132 CONG. REC. H9576 (daily ed. Oct. 8, 1986).

74. Although the legislative history is ambiguous on this point, there is support for this interpretation. See the statement by Senator Bentsen, a member of the Conference Committee, that § 121 "establishes the baseline level of protection for all remedial action selected and approved under Superfund." 132 CONG. REC. S14910 (daily ed. Oct. 3, 1986); and the statement by Congressman Fazio, a member of the Conference Committee, during the House debate on the Conference Report on SARA: "Section 211, in conjunction with sections 117, 120 and 121 of this act, reflects the understanding that DOD can no longer cleanup their sites to a different standard …." 132 CONG. REC. H9602 (daily ed. Oct. 8, 1986).

This conclusion is also bolstered by the rule of statutory construction that waivers of sovereign immunity are to be narrowly construed. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976). See generally Breen, Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law, 15 ELR 10326 (Oct. 1985).

75. See Atkeson et al., supra note 4, 16 ELR at 10395 (Dec. 1986); Breen, CERCLA's Natural Resource Damage Provisions: What Do We Know So Far?, 14 ELR 10304 (Aug. 1984).

76. CERCLA § 107(a)(4)(A), 42 U.S.C. § 9607(a)(4)(A), ELR STAT. 44024. For a discussion of the potential liabilities faced by government tenants, or contractors who operate DOD installations, see Boyd, Hall, and Bryson, Who Pays for Superfund Cleanup at DOD-Owned Sites?, NAT. RESOURCES & ENV'T, Spring 1986, at 11, and Stever, Perspectives on the Problem of Federal Facility Liability for Environmental Contamination, 17 ELR 10114 (Apr. 1987).

77. CERCLA § 113(f), 42 U.S.C. § 9613(f), ELR STAT. 44041. The right of the United States to proceed under § 107 is unaffected by its status as a responsible party. See H.R. REP. NO. 253 (Part 3), 99th Cong., 1st Sess. 20 (Oct. 31, 1985).

78. CERCLA §§ 107(a), 120(a)(1), 42 U.S.C. §§ 9607(a), 9620(a)(1), ELR STAT. 44024, 44051.

79. SARA § 211 (to be codified at 10 U.S.C. § 2703(e)).

80. 42 U.S.C. §§ 6901-6991; ELR STAT. 42001-42048.

81. CERCLA § 120(i), 42 U.S.C. § 9620(i), ELR STAT. 44054. The subsection's reference to the Solid Waste Disposal Act is to an alternate name of the RCRA statute.

82. SARA CONFERENCE REPORT at 242.

83. Pub. L. No. 98-616 (Nov. 8, 1984).

84. RCRA § 3004(u), 42 U.S.C. § 6924(u), ELR STAT. 42017.

85. Id.

86. Preamble to Final Codification Rule for Hazardous Waste Management System Regulations, 50 Fed. Reg. 28702, 28712 (1985); see also Notice of Policy and Interpretation of the Final Codification Rule, 51 Fed. Reg. 7722, 7722-7724 (1986).

87. SARA CONFERENCE REPORT at 242.

88. Preamble to Final Codification Rule, 50 Fed. Reg. 28702, 28712 (1985) (quoting H.R. REP. NO. 198, 98th Cong., 1st Sess., Part 1, 60 (1983)).

89. See RCRA § 3006, 42 U.S.C. § 6926, ELR STAT. 42019.

90. EPA has recently stated that it is "working with the other Federal agencies to determine how best to manage the corrective action program for the Federal establishment. This effort is dealing with … how to coordinate the RCRA and CERCLA corrective action programs." U.S. ENVIRONMENTAL PROTECTION AGENCY, NATIONAL RCRA CORRECTIVE ACTION STRATEGY 6 (Oct. 1986).

91. SARA § 211.

92. This may be less of a problem in dealing with EPA because, under § 120, all NPL remedial actions must be coordinated with EPA through interagency agreements anyway. But a state will not have a similar overall picture of the Restoration Program and its concomitant funding constraints.

93. Under CERCLA § 120(c)(1), 42 U.S.C. § 9620(c)(1), ELR STAT. 44052, the Administrator must establish a Federal Agency Hazardous Waste Compliance Docket from which facilities will be selected for listing on the NPL, and which shall contain "information submitted under section 3016 of the Solid Waste Disposal Act."

94. CERCLA § 120(i), 42 U.S.C. § 9620(i), ELR STAT. 44054.

95. SARA CONFERENCE REPORT at 242.

96. 132 CONG. REC. H9563 (daily ed. Oct. 8, 1986).

97. 132 CONG. REC. H9581 (daily ed. Oct. 8, 1986) (statement of Rep. Synar).

98. Id.

99. 132 CONG. REC. S14928 (daily ed. Oct. 3, 1986).

100. 132 CONG. REC. H9588 (daily ed. Oct. 8, 1986).

101. In this regard, see Chrysler Corp. v. Brown, 441 U.S. 281, 331 (1979) (the remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history but must be considered with reports of both Houses and the statements of other legislators).

102. CERCLA § 121(d)(2), 42 U.S.C. § 9621(d)(2), ELR STAT. 44055.

103. Id.

104. See Senator Chaffee's statement during the Senate debate that all RCRA requirements "apply as a legal matter to onsite remedial actions conducted under CERCLA." 132 CONG. REC. S4926 (daily ed. Oct. 3, 1986).

105. CERCLA § 121(d)(4), 42 U.S.C. § 9621(d)(4), ELR STAT. 44056.

106. CERCLA § 121(d)(3), 42 U.S.C. § 9621(d)(3), ELR STAT. 44056.

107. See Congressman Florio's statement during the House debate that the "Federal facilities program under Superfund should be implemented to complement, and not to replace in any manner, the corrective action authorities of the Solid Waste Disposal Act." 132 CONG. REC. H9587-88 (daily ed. Oct. 8, 1986) (emphasis added).

108. CERCLA § 121(e)(2), 42 U.S.C. § 9621(e)(2), ELR STAT. 44056. In a colloquy during the House debate, Congressman Eckart said that states cannot bring an action in state court to enforce cleanup standards when the remedial action takes place under § 121. He then went on to say, "[O]f course, the requirements of the Solid Waste Disposal Act, as provided in section 120(i) continue to fully apply to any [federal facility]." 132 CONG. REC. H9576 (daily ed. Oct. 8, 1986). It is not clear what the reference to § 120(i) is intended to mean. To the extent that it is intended to imply that states can enforce § 3004(u) in state court, this is inconsistent with both his previous sentence and the text of § 121(e)(2). But it may be that he sought to clarify that although RCRA § 3004(u) requirements could not be enforced in state court, § 120(i) made clear that § 3004(u) retained its legal applicability and could be enforced in federal court.

109. This result is also consistent with Congress' intent to exempt CERCLA actions from encroachment through actions brought under RCRA. See, e.g., RCRA § 7002(b)(2)(B)(iii), 42 U.S.C. § 6971(b)(2)(B)(iii), ELR STAT. 42035, which provides that a citizen suit may not be brought alleging "an imminent and substantial endangerment to health or the environment" if the Administrator "has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104" of CERCLA and is "diligently proceeding with a remedial action under that Act."

110. CERCLA § 120(i), 42 U.S.C. § 9620(i), ELR STAT. 44054.

111. CERCLA § 120(f), 42 U.S.C. § 9692(f), ELR STAT. 44053.

112. SARA CONFERENCE REPORT at 242 (emphasis added).

113. Compare, e.g., 132 CONG. REC. S14918 (daily ed. Oct. 3, 1986) (statement of Senator Mitchell) (state standards are not preempted) with 132 CONG. REC. H9566 (daily ed. Oct. 8, 1986) (statement of Congressman Lent) (state standards are preempted).

114. 132 CONG. REC. H9566 (dailyed. Oct. 8, 1986); see also 132 CONG. REC. H9574 (daily ed. Oct. 8, 1986) (statement of Congressman Snyder).

17 ELR 10120 | Environmental Law Reporter | copyright © 1987 | All rights reserved