COURT RULES LOCAL OFFICIALS HAVE A ROLE IN FEDERAL FACILITY CLEANUPS

In a ground breaking decision for local government involvement in environmental cleanups, a Federal District Court in the Eastern District of Washington ruled that pursuant to CERCLA, local governments have legal standing to be able to participate in the planning and selection of a remedy at a CERCLA cleanup site. Specifically, local governments pursuant to CERCLA, 42 USC §9620(f) must be allowed to participate in the planning and selection of the remedy at a federal facility site that is being cleaned up as a "remedial action" under CERCLA, 42 USC §9620. ECA and other local government groups have long maintained that local governments have a specific statutorily defined role in CERCLA cleanups at federal facility cleanup sites.

CERCLA §9620(f) states:

"(f) State and local participation

The Administrator and each department, agency, or instrumentality responsible for compliance with this section shall afford to relevant State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State officials, the opportunity to participate shall be provided in accordance with section 9621 of this title."

The Court in City of Moses Lake clarified that EPA and the lead federal agency (DOE at DOE facilities) that is remediating a site pursuant to a CERCLA §120 remedial action must involve local governments in the planning and selection of the remedial action (including but not limited to the review of all applicable data as it becomes available and the development of studies, reports and action plans). This ruling is a departure from the current process where most local governments are relegated to participating in an environmental cleanup at a federal facility site pursuant to the public involvement process.

The Court did not specify the process for involvement in the remedial action decision making. Instead, the Court set a minimum standard and recognized that both the local government and the Government will need to work together to develop a process. In this case, the Court recognized that it would need to adjudicate any dispute related to what the language of CERLCA §120(f) “participate in the planning and selection of the remedial action” means.

Local governments should work with their DOE site and EPA to discuss this important case. Where local governments want to be more involved in the cleanup decision-making at the DOE site, local governments should begin to work with EPA and DOE to develop the formal role for the local governments in the decision making process.

ECA has contacted DOE at headquarters to recommend developing a policy of local governments and DOE working together on these important issues. Further, ECA will discuss this case and the impacts on most DOE cleanup sites at out January 19 peer exchange meeting.

Please contact Seth Kirshenberg directly with any questions directly at (202) 828-2494 or sethk@energyca.org