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CERCLA 120(h)

CERCLA 120(h). CERCLA §120(h) imposes several requirements on all transfers of federal real property to non-federal entities Environmental Baseline Survey Finding of Suitability to Transfer (FOST) Protective Covenants in Transfer Deed. CERCLA Covenant.

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CERCLA 120(h)

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  1. CERCLA 120(h) CERCLA §120(h) imposes several requirements on all transfers of federal real property to non-federal entities Environmental Baseline Survey Finding of Suitability to Transfer (FOST) Protective Covenants in Transfer Deed

  2. CERCLA Covenant Warrants: "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,“ and “return and perform any additional response action that may be required in the future” Does not address the scheduling or pace of such remedial actions

  3. Covenants and Property Acquisition RCRA and CERCLA can be in conflict; fee acquisition under RCRA imparts ownership Responsible Party status may negate Covenants Transfer by Easement does not clearly require Protective Covenants

  4. FOSET (Early Transfers) Allows known contaminated property to be transferred prior to completion of remedy provided: Demonstration property suitable for intended use EPA Concurrence 30-day Public Comment Period Approval by Governor

  5. Fairfax County Parkway 1.5 Mile 4-Lane highway to support 9000 BRAC employees Transfer of 165 acres from Fort Belvoir former Engineering Proving Ground EPG part of Base-wide RCRA Corrective Action SWMUs and Ordnance Range in ROW; investigation/clearance ongoing since 1990 Ordnance Investigation/Clearance 2000-2005 Significant cuts to achieve roadway design grades

  6. Fairfax County Parkway Timeline VDOT Design-Build procurement scheduled May 2005 March 2005 FOST due date missed May 2005 VDOT cancels procurement Army proposes FOSET in August 2005 EPA issues RCRA 3013 Consent Order – Sept. 2005 Army “discovery” of new SWMU (FATTS) January 2006

  7. Former Aboveground Test Tank Site (FATTS) PICTURE

  8. Fairfax County Parkway Timeline (cont.) October 2006 Congress authorizes Army/FHWA to build project December 2007 MOA reached – VDOT match not to be used for any related cleanup costs SMWU remedies not completed until February 2009 Phased procurement May 2008 – December 2009

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