The Other Federal PRPS: Liability for Mining Wastes Under CERCLA and RCRA
By Nancy Mangone
INTRODUCTION
The recent newspaper headlines charging that Department of Energy officials committed criminal acts by illegally disposing nuclear and hazardous wastes at the Rocky Flats facility and the Environmental Protection Agency (EPA) Administrator William Reilly's pledge to take an “enforcement first” posture in pursuing Superfund claims have many critics wondering if the federal government is ready to embark on a new era of policing itself. Until section 120 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), which explicitly allows EPA to sue other “federal facilities” as if they were private “potentially responsible parties” (PRPs) and establishes the procedures to do so, was added by the Superfund Amendment and Reauthorization Act of 1986 (SARA), EPA was generally unwilling to sue facilities owned or operated by other departments of the Executive Branch. EPA's current treatment of Federal PRPs suggests that this “hands off” approach is changing.
This article examines whether EPA can and should seek CERCLA response costs or require corrective actions from other departments of the Executive Branch. It focuses on those agencies whose liability may be more difficult to determine, since they do not own or operate a “facility” in the strictest sense of the word, but rather administer federal lands to protect the government's interests in them. It uses the backdrop of CERCLA mining wastes as its model study, since Federal agencies such as the Bureau of Land Management (BLM) and the U.S. Forest Service (Forest Service) do not fit into the normal categories of federal PRPs (such as the Departments of Defense or Energy who may be owners, operators, generators, transporters, or those who “arranged for disposal”) but are only overseers of hazardous waste-contaminated federal lands.
The recent newspaper headlines charging that Department of Energy officials committed criminal acts by illegally disposing nuclear and hazardous wastes at the Rocky Flats facility and the Environmental Protection Agency (EPA) Administrator William Reilly's pledge to take an “enforcement first” posture in pursuing Superfund claims have many critics wondering if the federal government is ready to embark on a new era of policing itself. Until section 120 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), which explicitly allows EPA to sue other “federal facilities” as if they were private “potentially responsible parties” (PRPs) and establishes the procedures to do so, was added by the Superfund Amendment and Reauthorization Act of 1986 (SARA), EPA was generally unwilling to sue facilities owned or operated by other departments of the Executive Branch. EPA's current treatment of Federal PRPs suggests that this “hands off” approach is changing.
This article examines whether EPA can and should seek CERCLA response costs or require corrective actions from other departments of the Executive Branch. It focuses on those agencies whose liability may be more difficult to determine, since they do not own or operate a “facility” in the strictest sense of the word, but rather administer federal lands to protect the government's interests in them. It uses the backdrop of CERCLA mining wastes as its model study, since Federal agencies such as the Bureau of Land Management (BLM) and the U.S. Forest Service (Forest Service) do not fit into the normal categories of federal PRPs (such as the Departments of Defense or Energy who may be owners, operators, generators, transporters, or those who “arranged for disposal”) but are only overseers of hazardous waste-contaminated federal lands.
