The Federal Government's Sovereign Immunity under CERCLA and its Effects on the Hazardous Waste Cleanup of the District of Columbia's Washington Navy Yard

Author:Nicole J. Waxman
Position:J.D. Candidate, Washington College of Law 2019
Pages:14-15
 
CONTENT
14 Sustainable Development Law & Policy
The Federal GovernmenTs sovereiGn
immuniTy under CerCla and iTs eFFeCTs on
The hazardous WasTe Cleanup oF The disTriCT
oF Columbias WashinGTon navy yard
Nicole J. Waxman*
The United States Supreme Court’s weakening of the
waiver of federal sovereign immunity under the Com-
prehensive Environmental Response, Compensation and
Liability Act (CERCLA or “the Act”) is preventing federally-
contaminated sites such as the Washington Navy Yard from
being fully remediated. In 1998, the United States Environ-
mental Protection Agency (EPA) designated the Navy Yard—a
property with a lengthy history of hazardous waste contamina-
tion—as a priority for cleanup pursuant to CERCLA.1 However,
the hazardous waste currently contaminating the Navy Yard has
not been remediated due to a lack of intra-governmental enforce-
ment. This inaction leaves the people who live and work near the
Navy Yard exposed to hazardous waste, which can have very
severe health consequences.2
The Navy Yard consists of 71.5 acres of land in Southeastern
Washington, D.C. that was set aside on presidential order and
ofcially opened in 1799 to serve as a naval shipbuilding and
repair facility.3 The facility was re-designated as a Naval Gun
Factory in 1886,4 and factory operation lasted until the 1940s.5
Remediation of the Navy Yard’s hazardous waste contamination
pursuant to CERCLA did not begin until 2016, which was eigh-
teen years after the Navy Yard was designated as a priority site
for remediation efforts.6 The Washington Navy Yard is highly
contaminated with toxic substances yet is located less than
one mile from residential apartments, ofce buildings, and the
Washington Nationals Baseball Stadium.7 CERCLA was passed by
Congress to address this exact issue; however, the length of time which
has passed without meaningful remediation of this site suggests that
there are issues with the enforcement of CERCLA cleanup for govern-
ment actors.
Despite being listed on the NPL for twenty years, the Navy
Yard remains contaminated and remediation measures have
stalled.8 In comparison, it takes between thirteen and fteen
years on average to clean up a contaminated site.9 This delay
may be due to the United States Navy’s 2011 proposal to take
no remedial action on one of the many hazardous waste sites
located within the Navy Yard. This no-action decision was based
on a summary of potential human health risks from the lead con-
tamination at the site, but still allowed some residents, including
children, to remain exposed.10
In 1980, Congress passed CERCLA to address the need to
remediate, or clean up, hazardous waste sites across the coun-
try.11 CERCLA provides for strict, retroactive, and joint and
several liability for any current or past owner or operator of a
hazardous waste site, any person who arranged for the disposal
of hazardous waste and any party who transported the hazardous
waste.12 Joint and several liability means that one responsible
party can be held liable for the full extent of the damages caused,
even if some of the damage was caused by other parties.13 Under
the CERCLA National Contingency Plan,14 the EPA is required
to designate the most serious hazardous waste sites on a list
known colloquially as the National Priorities List (NPL).15 A
hazardous waste site is only eligible for federal funding if it is placed
on the NPL.16
A potentially responsible party (PRP) can be held liable
under CERCLA in one of two ways.17 First, a party can be liable
under section 107(a) of the Act, which states that a party that
incurred cleanup costs may sue the PRP to recover these costs.18
These cases are typically brought by the EPA, which sues a PRP
to recover the cost of the EPA’s cleanup of a hazardous waste
site.19 Second, a PRP may sue another PRP for contribution
toward the clean-up costs under section 113(f)(1).20
Federal sovereign immunity is a legal doctrine that prevents
the federal government from being sued by citizens.21 The
federal government can only be sued if a statute waives this
sovereign immunity.22 A provision of CERCLA states that “each
department, agency, and instrumentality of the United States
(including the executive, legislative and judicial branches of
the government)” shall be held as liable as any other party and
thereby waives sovereign immunity.23 Historically, the Supreme
Court has upheld the federal government’s liability for sites that
it contaminates.24 The Navy is liable as an owner or operator, and
according to the statute, does not have sovereign immunity.25
The Supreme Court has held that holding the federal govern-
ment liable under CERCLA section 107 only when the govern-
ment owns or operates a facility where the release or threatened
release occurs, is a reasonable interpretation of the statute.26 The
Court’s narrow construction of federal liability under CERCLA
prevents the federal government from being held liable to the
full extent that a private party would be, namely as an arranger
or transporter of hazardous waste.27
The Superfund Amendments and Reauthorization Act of
1986 (SARA) left CERCLA’s waiver provision unchanged,
but listed the provision under a “Federal Facilities” heading.28
*J.D. Candidate, Washington College of Law 2019
224813_AU_SDLP_Spg-Sum18.indd 14 10/18/18 1:53 PM
15
Spring/Summer 2018
This addition may be interpreted to only subject the federal
government to liability for sites that it owns and operates, but
not to sites that it regulates, such as “private parks or other
private facilities.”29 As a result, the federal government’s
liability—in comparison to the liability of private parties who
may also liable as arrangers and transporters—is limited. The
limited enforcement of federal liability under CERCLA has delayed
the cleanup of the Washington Navy Yard, which is the only NPL
site in the District of Columbia.30 As a past operator, the Navy
is liable for cleanup of the Navy Yard under CERCLA §107(a)
and therefore is responsible for full remediation costs—includ-
ing damages to natural resources—despite its status as a gov-
ernment actor.31
The weakening of the federal waiver of sovereign immunity
has prevented citizen suits from being brought by those who
may suffer from this dangerous contamination. To address this
issue, the Supreme Court should reinforce CERCLA’s waiver
of sovereign immunity, and therefore hold the Navy liable for
cleaning up the Washington Navy Yard’s hazardous waste con-
tamination within a reasonable amount of time.
EndnotEs
1 U.s. Envtl. Prot. AgEncy, nPl sitE nArrAtivE for WAshington nAvy
yArd (1998), https://semspub.epa.gov/work/03/900232.pdf.
2 Health and Ecological Hazards Caused by Hazardous Substances, U.s.
Envtl. Prot. AgEncy (2017), https://www.epa.gov/emergency-response/
health-and-ecological-hazards-caused-hazardous-substances.
3
U.s. Envtl. Prot. AgEncy, supra note 1.
4
Id.
5
Id.
6
Id.
7
U.s. nAvy, ProPosEd PlAn sitE 17 At thE WAshington nAvy yArd, 1, 2
(May 2011), https://www.navfac.navy.mil/niris/WASHINGTON/WASHING-
TON_NAVY_YARD/N00171_001515.pdf.
8 What is the Current Site Status? Washington Navy Yard, Washington, DC,
U.s. Envtl. Prot. AgEncy, https://cumulis.epa.gov/supercpad/SiteProles/
index.cfm?fuseaction=second.cleanup&id=0300031#Status.
9
Martha Ellen Wingeld et al., Contamination and Climate Change:
Examining the Relationship between Virginia’s Hazardous Waste Sites and
Public Health, Envtl. stEWArdshiP concEPts (2009), https://d10k7k7mywg42z.
cloudfront.net/assets/4c7002fadabe9d45d3000029/water_resources_poster.pdf.
10
Id. at 8.
11 Superfund: CERCLA Overview, U.s. Envtl. Prot. AgEncy (2017), https://
www.epa.gov/superfund/superfund-cercla-overview.
12
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. § 9607(a)(1-4) (1980).
13
rEstAtEmEnt (third) of torts: APPortionmEnt of liAbility § 10 (Am. lAW
inst. 2000).
14
For information on the National Contingency Plan, visit the EPA’s over-
view of the National Oil and Hazardous Substances Pollution Contingency Plan
Overview. See National Oil and Hazardous Substances Pollution Contingency
Plan (NCP) Overview, U.s. Envtl. Prot. AgEncy (2017), https://www.epa.gov/
emergency-response/national-oil-and-hazardous-substances-pollution-contin-
gency-plan-ncp-overview (explaining that the National Contingency Plan is the
federal government’s “blueprint for responding to both oil spills and hazardous
substance releases”).
15
42 U.S.C. § 9605(a)(8)(B).
16 EPA Updates the National Priorities List to Clean Up Contamination and
Protect Communities, U.s. Envtl. Prot. AgEncy (2018), https://www.epa.gov/
newsreleases/epa-updates-national-priorities-list-clean-contamination-and-
protect-communities.
17
42 U.S.C. §§ 9607(a) (commonly known as section 107(a)); §9613(f)(1)).
18
Id.
19
See generally United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 2001).
20
See 42 U.S.C. § 9613(f)(1) (1980); see generally United States v. R.W.
Meyer, Inc., 889 F.2d 1497, 1498 (6th Cir. 1989).
21
Barry Breen, Federal Supremacy and Sovereign Immunity Waivers in
Federal Environmental Law, 15 Env. l. rEv. 10326, 10327 (1985).
22
Id.
23
42 U.S.C. § 9620(a)(1) (1980).
24
See FMC Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 849-50 (3d Cir.
1994) (en banc) (upholding the decision to hold the federal government liable
for cleanup costs under CERCLA).
25
42 U.S.C. § 9620(a)(4).
26
FMC Corp., 29 F.3d at 849.
27
42 U.S.C. §9620(a)(4); FMC Corp. 29 F.3d at 847 (Sloviter,
C.J., dissenting); National Priorities List (NPL) Sites – by State,
U.s. Envtl. Prot. AgEncy (2018), https://www.epa.gov/superfund/
national-priorities-list-npl-sites-state#DC.
28
Stephen G. Davison, Governmental Liability Under CERCLA, 25 b.c.
Envtl. Aff. l. rEv. 47, 49 (1997), available at http://lawdigitalcommons.
bc.edu/cgi/viewcontent.cgi?article=1270&context=ealr.
29
FMC Corp. 29 F.3d at 847 (Sloviter, C.J., dissenting).
30 National Priorities List (NPL) Sites – by State, U.s.
Envtl. Prot. AgEncy (2018), https://www.epa.gov/superfund/
national-priorities-list-npl-sites-state#DC.
31
Id.
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