Enforceability of Section 120 Federal Facility Agreements

U.S. Department of Justice
Land and Natural Resources Division
Office of the Assistant Attorney General
Washington, D.C 20530

Jonathan Z. Canon Acting Assistant Administrator
Office of Solid Waste and Emergency Response
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

August 7, 1989

Dear Jon:

This letter is in response to your request for the Justice Department's views on the enforceability of agreements developed under Section 120 of the Comprehensive Environmental Response, compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.

It is the considered view of this Department that such agreements are enforceable against the United States. This conclusion is based on Section 310 of CERCLA, 42 U.S.C. § 9659, which expressly provides for suit against persons who violate ". . . any provision of an agreement under section 120, relating to Federal facilities."

We have also reviewed the model language for "Federal Facility Agreements Under CERCLA Section 120," and have determined that agreements utilizing the model enforceability language and the other model provisions are likewise enforceable against the United States pursuant to Section 310.

In letters and testimony to various congressional committees, representatives of this Department have repeatedly stated that Federal Facility Agreements provide an excellent mechanism by which EPA, other Federal agencies and the States can develop comprehensive, workable, and fully enforceable settlements for addressing cleanup of Federal facilities. We fully support EPA's efforts to address Federal facility cleanups through the Federal Facility Agreement process.

Sincerely,

Donald A. Carr
Acting Assistant Attorney General