UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460

MEMORANDUM

SUBJECT:
Federal Facilities - Military Base Closures; Application of CERCLA Section 120(h)(3)

FROM:
Don R Clay, Assistant Administrator
Office of Solid Waste and Emergency Response

Herbert H Tate, Jr., Assistant Administrator
Office of Enforcement

TO:
Waste Management Division Directors, Regions I - X
Regional Counsels, Regions I - X

We have received questions, in connection with the closure of certain military bases on the NPL, concerning the interpretation of CERCLA action 120(h)(3). Section 120(h)(3) provides that, when the United States transfers by deed real property on which any hazardous substance was stored for one year or more, known to have been released, or disposed of, it must, among other things, covenant that:

...all remedial action necessary to protect human health and the environment with respect to any such substance remaining on the property has been taken before the date of such transfer

In particular, questions have arisen regarding when "all remedial action" may be considered to have been "taken" within the meaning of Section 120(h)(3).

It is EPA's view that, at an NPL site, where a CERCLA record of decision determines what remedial action is necessary, the remedial action has been "taken" when construction of the remedy is complete, including a demonstration that the remedy is operating properly according to design specifications contained in the record of decision and remedial design; achieving the cleanup levels in the record of decision is not required. Where a property to be transferred is included in more than one operable unit, each unit must meet the above standard.

We believe that this interpretation balances environmental protection and timely cleanup of federal facilities with the need to reuse property at closing bases. The view expressed in this memorandum is intended to apply only to the interpretation of section 120(h)(3), not other provisions of CERCLA

It you have any questions about this memorandum, contact Bob Carr (FTS 260-2035) in OE/OFFE, Rick Colbert (FTS 260-4015) in OSWER/OWPE, or Bill Ross (FTS 308-8335) in OSWER/OERR

cc.
Federal Facility Branch Chiefs, Regions I - X