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

14 Sustainable Development Law & Policy

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

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

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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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