Liability Loopholes Persist at Contaminated Federal Sites

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By Sylvia Carignan

A 20-year-old EPA policy meant to protect landowners such as Alaska native groups from cleanup liability for over $1.7 billion in their state hasn’t eradicated their fear of big cleanup bills.

The Environmental Protection Agency’s 1997 policy is meant to “alleviate uncertainty” in situations where owners of former federal property could be responsible for contamination the government caused, according to the policy.

Sarah Lukin, board member of the Afognak Native Corporation in Alaska, said some Alaska native corporations are unwilling to notify the EPA of possible toxins on their land.

“Instead, they’re living with the contamination, and they’re afraid to come forward to the proper authorities,” Lukin said. She brought up her concerns at a hearing of the Senate’s Environment and Public Works Committee March 29.

The corporations received federal lands from the Department of the Interior through an act of Congress in 1971. Since the corporations were considered the current property owners when Superfund was enacted in 1980, that leaves Alaska native corporations potentially liable for contamination.

The EPA reserves the right to depart from the 1997 policy, and the policy is not enforceable by law, according to the document itself, “Policy Towards Landowners and Transferees of Federal Facilities.”

The EPA declined requests for comment from Bloomberg BNA for this story.

Accepting Responsibility

The Superfund law requires the U.S. government to remediate its contaminated properties before conveying them to another owner.

“These sites are really a moral and legal obligation of the federal government,” said Alexandra Smith, nuclear waste program manager at the Washington State Department of Ecology.

Even where the federal government is actively participating in site cleanup, local stakeholders are unsure if the pace of that work can continue if proposed cuts to the EPA and the U.S. Army Corps of Engineers’ budgets become reality.

In a March budget blueprint for fiscal year 2018, the Trump administration proposed a $1 billion budget cut for the Corps. The blueprint would also cut the EPA’s budget by more than $2 billion, or about 30 percent.

If federal funding for remediation dries up, Smith said, “there is little the state can do to fill the void.”

The Formerly Used Defense Sites program identifies contaminated properties held by the Department of Defense before 1986.

According to U.S. Army Corps of Engineers’ commanding general, Lt. Gen. Todd Semonite, the Corps has identified 5,300 cleanup sites and has now closed or is monitoring 3,500 of them.

The Corps estimates it will cost about $11.8 billion to close out remediation of the remaining properties in the Formerly Used Defense Sites program. About 176 of the sites are in Alaska, with an estimated completion cost of $1.7 billion.

Applying Policy

Hallie Bissett, executive director of the Alaska Native Village Corporation Association, told Bloomberg BNA that she and Alaska state officials are not aware of any sites in the state where the EPA has applied the 1997 policy to release contaminated federal property owners from cleanup liability.

An Alaska Native Corporation—the NANA Regional Corporation—is paying for the cleanup at a former federal property that was once a gold mine.

An Alaska borough asked the state to evaluate the contamination there in 2005, and soil testing revealed elevated concentrations of mercury, lead, arsenic and other heavy metals.

According to Bissett, the Bureau of Land Management said the federal government was not liable for mining-related waste at the site and was not responsible or able to conduct cleanup work.

The property is currently on Alaska’s list of contaminated sites. NANA Regional Corporation did not return two calls from Bloomberg BNA for comment.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Read the EPA policy: http://src.bna.com/nDk

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