View all text of Chapter 160 [§ 2700 - § 2716]
§ 2701. Environmental restoration program
(a)Environmental Restoration Program.—
(1)In general.—The Secretary of Defense shall carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary and at National Guard facilities. The program shall be known as the “Defense Environmental Restoration Program”.
(2)Application of section 120 of cercla.—Activities of the program described in subsection (b)(1) shall be carried out subject to, and in a manner consistent with, section 120 (relating to Federal facilities) of CERCLA (42 U.S.C. 9620).
(3)Consultation with epa.—The program shall be carried out in consultation with the Administrator of the Environmental Protection Agency.
(4)Administrative office within osd.—The Secretary shall identify an office within the Office of the Secretary which shall have responsibility for carrying out the program.
(b)Program Goals.—Goals of the program shall include the following:
(1) The identification, investigation, research and development, and cleanup of contamination from a hazardous substance or pollutant or contaminant.
(2) Correction of other environmental damage (such as detection and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment.
(3) Demolition and removal of unsafe buildings and structures, including buildings and structures of the Department of Defense at sites formerly used by or under the jurisdiction of the Secretary.
(c)Responsibility for Response Actions.—
(1)Basic responsibility.—The Secretary shall carry out (in accordance with the provisions of this chapter and CERCLA) all response actions with respect to releases of hazardous substances or pollutants or contaminants from each of the following:
(A) Each facility or site owned by, leased to, or otherwise possessed by the United States and under the jurisdiction of the Secretary.
(B) Each facility or site which was under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination by hazardous substances or pollutants or contaminants.
(C) Each vessel owned or operated by the Department of Defense.
(D) Each National Guard facility being used for training the National Guard pursuant to chapter 5 of title 32 with funds provided by the Secretary of Defense or the Secretary of a military department at the time of actions leading to contamination by hazardous substances or pollutants or contaminants.
(2)Other responsible parties.—Paragraph (1) shall not apply to a removal or remedial action if the Administrator has provided for response action by a potentially responsible person in accordance with section 122 (relating to settlements) of CERCLA (42 U.S.C. 9622).
(3)State fees and charges.—The Secretary shall pay fees and charges imposed by State authorities for permit services for the disposal of hazardous substances or pollutants or contaminants on lands which are under the jurisdiction of the Secretary to the same extent that nongovernmental entities are required to pay fees and charges imposed by State authorities for permit services. The preceding sentence shall not apply with respect to a payment that is the responsibility of a lessee, contractor, or other private person.
(d)Services of Other Entities.—
(1)In general.—Subject to paragraph (3), the Secretary may enter into agreements on a reimbursable or other basis with any other Federal agency, any State or local government agency, any Indian tribe, any owner of covenant property, or any nonprofit conservation organization to obtain the services of the agency, Indian tribe, owner, or organization to assist the Secretary in carrying out any of the Secretary’s responsibilities under this section. Services which may be obtained under this subsection include the identification, investigation, and cleanup of any off-site contamination resulting from the release of a hazardous substance or waste at a facility under the Secretary’s jurisdiction or at a National Guard facility.
(2)Cross-fiscal year agreements.—An agreement with an agency under paragraph (1) may be for a period that begins in one fiscal year and ends in another fiscal year so long as the period of the agreement does not exceed two years. This two-year limitation does not apply to an agreement funded using amounts in the Department of Defense Base Closure Account established by section 2906 of the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
(3)Limitation on reimbursable agreements.—An agreement with an agency under paragraph (1) may not provide for reimbursement of the agency for regulatory enforcement activities. An agreement under such paragraph with respect to a site also may not change the cleanup standards selected for the site pursuant to law.
(4)Definitions.—In this subsection:
(A) The term “Indian tribe” has the meaning given such term in section 101(36) of CERCLA (42 U.S.C. 9601(36)).
(B) The term “nonprofit conservation organization” means any non-governmental nonprofit organization whose primary purpose is conservation of open space or natural resources.
(C) The term “owner of covenant property” means an owner of property subject to a covenant provided by the United States in accordance with the requirements of paragraphs (3) and (4) of section 120(h) of CERCLA (42 U.S.C. 9620(h)), so long as the covenant property is the site at which the services procured under paragraph (1) are to be performed.
(5)Savings clause.—Nothing in this subsection affects the applicability of section 120 of CERCLA (42 U.S.C. 9620) to the Department of Defense or the obligations and responsibilities of the Department of Defense under subsection (h) of such section.
(e)Response Action Contractors.—The provisions of section 119 of CERCLA (42 U.S.C. 9619) apply to response action contractors (as defined in that section) who carry out response actions under this section.
(f)Use of Appropriated Funds at Former DOD Sites.—Appropriations available to the Department of Defense may be used at sites formerly used by the Department of Defense for removal of unsafe buildings or debris of the Department of Defense.
(g)Removal of Unsafe Buildings and Debris Before Release From Federal Control.—In the case of property formerly used by the Department of Defense which is to be released from Federal Government control and at which there are unsafe buildings or debris of the Department of Defense, all actions necessary to comply with regulations of the General Services Administration on the transfer of property in a safe condition shall be completed before the property is released from Federal Government control, except in the case of property to be conveyed to an entity of State or local government or to a native corporation.
(h)Surety-Contractor Relationship.—Any surety which provides a bid, performance, or payment bond in connection with any direct Federal procurement for a response action contract under the Defense Environmental Restoration Program and begins activities to meet its obligations under such bond, shall, in connection with such activities or obligations, be entitled to any indemnification and the same standard of liability to which its principal was entitled under the contract or under any applicable law or regulation.
(i)Surety Bonds.—
(1)Applicability of sections 3131 and 3133 of title 40.—If under sections 3131 and 3133 of title 40 surety bonds are required for any direct Federal procurement of any response action contract under the Defense Environmental Restoration Program and are not waived pursuant to section 3134 of title 40, the surety bonds shall be issued in accordance with sections 3131 and 3133.
(2)Limitation of accrual of rights of action under bonds.—If, under applicable Federal law, surety bonds are required for any direct Federal procurement of any response action contract under the Defense Environmental Restoration Program, no right of action shall accrue on the performance bond issued on such contract to or for the use of any person other than an obligee named in the bond.
(3)Liability of sureties under bonds.—If, under applicable Federal law, surety bonds are required for any direct Federal procurement of any response action contract under the Defense Environmental Restoration Program, unless otherwise provided for by the Secretary in the bond, in the event of a default, the surety’s liability on a performance bond shall be only for the cost of completion of the contract work in accordance with the plans and specifications of the contract less the balance of funds remaining to be paid under the contract, up to the penal sum of the bond. The surety shall in no event be liable on bonds to indemnify or compensate the obligee for loss or liability arising from personal injury or property damage whether or not caused by a breach of the bonded contract.
(4)Nonpreemption.—Nothing in this section shall be construed as preempting, limiting, superseding, affecting, applying to, or modifying any State laws, regulations, requirements, rules, practices, or procedures. Nothing in this section shall be construed as affecting, applying to, modifying, limiting, superseding, or preempting any rights, authorities, liabilities, demands, actions, causes of action, losses, judgment, claims, statutes of limitation, or obligations under Federal or State law, which do not arise on or under the bond.
(j)Applicability.—
(1) Subsections (h) and (i) shall not apply to bonds executed before December 5, 1991.
(2) Subsections (h) and (i) shall not apply to bonds to which section 119(g) of CERCLA (42 U.S.C. 9619(g)) applies.
(k) UXO Program Manager.—
(1) The Secretary of Defense shall designate a program manager who shall serve as the single point of contact in the Department of Defense for policy and budgeting issues involving the characterization, research, remediation, and management of explosive and related risks with respect to unexploded ordnance, discarded military munitions, and munitions constituents at defense sites (as such terms are defined in section 2710 1
1 See References in Text note below.
of this title) that pose a threat to human health or safety.(2) The position of program manager shall be filled by—
(A) an employee in a position that is equivalent to pay grade O–6 or above; or
(B) a member of the armed forces who is serving in the grade of colonel or, in the case of the Navy, captain, or in a higher grade.
(3) The program manager shall report to the Assistant Secretary of Defense for Energy, Installations, and Environment.
(4) The program manager may establish an independent advisory and review panel that may include representatives of the National Academy of Sciences, nongovernmental organizations with expertise regarding unexploded ordnance, discarded military munitions, or munitions constituents, the Environmental Protection Agency, States (as defined in section 2710 1 of this title), and tribal governments. If established, the panel shall report annually to Congress on progress made by the Department of Defense to address unexploded ordnance, discarded military munitions, or munitions constituents at defense sites and make such recommendations as the panel considers appropriate.
(Added Pub. L. 99–499, title II, § 211(a)(1)(B), Oct. 17, 1986, 100 Stat. 1719; amended Pub. L. 101–510, div. A, title XIV, § 1481(i)(1), Nov. 5, 1990, 104 Stat. 1708; Pub. L. 102–190, div. A, title III, § 336(a), Dec. 5, 1991, 105 Stat. 1342; Pub. L. 102–484, div. A, title III, § 331(b), title X, § 1052(35), Oct. 23, 1992, 106 Stat. 2373, 2501; Pub. L. 103–35, title II, § 201(d)(6), May 31, 1993, 107 Stat. 99; Pub. L. 103–337, div. A, title III, §§ 322, 323, Oct. 5, 1994, 108 Stat. 2711; Pub. L. 104–106, div. A, title III, § 321(a)(1), title XV, § 1504(a)(1), div. D, title XLIII, § 4321(b)(22), Feb. 10, 1996, 110 Stat. 251, 513, 673; Pub. L. 104–201, div. A, title III, § 329, Sept. 23, 1996, 110 Stat. 2483; Pub. L. 107–107, div. A, title III, § 314, Dec. 28, 2001, 115 Stat. 1053; Pub. L. 107–217, § 3(b)(17), Aug. 21, 2002, 116 Stat. 1296; Pub. L. 107–314, div. A, title III, §§ 311, 312, 313(c)(2), div. B, title XXVIII, § 2812(c), Dec. 2, 2002, 116 Stat. 2506, 2508, 2709; Pub. L. 108–375, div. A, title X, § 1084(d)(24), Oct. 28, 2004, 118 Stat. 2062; Pub. L. 109–163, div. A, title III, § 312(a), Jan. 6, 2006, 119 Stat. 3190; Pub. L. 109–284, § 2, Sept. 27, 2006, 120 Stat. 1211; Pub. L. 109–364, div. A, title III, §§ 311, 312, Oct. 17, 2006, 120 Stat. 2137; Pub. L. 111–84, div. A, title X, § 1073(a)(28), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111–383, div. A, title X, § 1075(b)(46)(B), Jan. 7, 2011, 124 Stat. 4371; Pub. L. 112–239, div. B, title XXVII, § 2711(c)(4)(A), Jan. 2, 2013, 126 Stat. 2144; Pub. L. 113–291, div. A, title IX, § 901(n)(2), Dec. 19, 2014, 128 Stat. 3469; Pub. L. 116–92, div. A, title III, § 316(c), Dec. 20, 2019, 133 Stat. 1304