July 14, 2020

Volume X, Number 196

July 13, 2020

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CERCLA Task Force Issues Recommendations

EPA Administrator Scott Pruitt has announced a set of Task Force recommendations that are aimed at improving the Superfund program.  The Agency’s adoption of these recommendations is another indication that demonstrable change to CERCLA implementation is of interest to the Trump administration.   It follows the EPA Administrator’s May 9 retraction of certain remedy selection authority from regional offices.

The 42 recommendations are contained in a report developed over the space of a month by a task force appointed by Administrator Pruitt.  The recommendations are presented as an ambitious attempt to reorient the Superfund program, and a key aim is accelerating action on Superfund mega-sites.  The report particularly emphasizes expediting cleanups and promoting redevelopment and community revitalization.  The recommendations will require aggressive work from EPA staff to meet the schedules provided in the report. 

The report closely follows key themes that the Administrator has previously emphasized: rapid, efficient implementation of CERCLA cleanups; a hands-on approach from EPA senior management for key Superfund mega-sites; and efforts to leverage the program to enhance site “reuse” and  brownfields / community redevelopment. 

Among the strategic initiatives identified for quick action are:

  1. Sites Showing Insufficient Progress. The report recommends developing a list of NPL sites that are not showing sufficient progress toward cleanup / completion, and then accelerating progress on the targeted sites.  The Administrator likely will be looking for quick success stories in selecting the “top 10 list” and a similar top 20 list for best redevelopment opportunities.  He has already asked the regional offices to start compiling information that may be used to develop these lists.  The impact of this initiative will likely vary from site to site.  For some sites, enhanced attention from the Administrator may provide an opportunity for greater efficiency and moving more quickly toward completion.  For others it may provide unwanted attention.   

  2. Adaptive Management. The recommendations appear to promote the increased use of adaptive management strategies for major sites.  Adaptive management is not new in the Superfund context.  The recommendations appear to focus on possibilities for using adaptive management strategies at the front end of mega-site cleanups, especially when focusing on early action remedies to reduce quickly the risks at a site.  Such a strategy would fit well with the Administrator’s emphasis on efficient cleanups, but would not necessarily solve some of the problems associated with the longer-term wrap up and closure of larger sites.  

  3. Creating Oversight Efficiencies. At the more complex or larger sites, the magnitude of oversight costs for EPA, and for affiliated state and tribal reviewers, can seem disproportionate to some PRPs.  The report’s recommendations indicate that EPA may be willing to consider using oversight cost reduction or forgiveness as an incentive for meeting deadlines, conducting early action activities, or other good policy objectives.  The recommendations also reference the possibility of using third party oversight and / or single reviewer designations to decrease costs.   EPA is targeting FY 2018 for moving forward on these initiatives.  EPA may also look for ways to pass oversight authorities to states.

  4. Support for Private Party Redevelopment. The report also incorporates a private party redeveloper emphasis, seeking to stimulate community redevelopment and site re-use.  The recommendations signal the potential availability of funding and improved liability protections for redevelopment sites – and a possible return to initiatives that have lost some steam in recent years.  Movement on these recommendations could lead to significant improvements in the availability of pre purchaser comfort letters that would represent a material improvement in protections for such property purchasers and developers.  

Most of the recommendations are scheduled for implementation within 30 to 180 days, so the fast time frames imposed for multiple deliverables may be the most significant element of the report.   Several recommendations require establishing working groups, reaching out to PRPs for feedback on site redevelopment, preparing policy memos, or coordinating with the Department of Justice to create model documents to speed up settlement.  These activities will need to occur on very tight timelines to meet the Administrator’s goals.

The recommendations would not alter the fundamentals of the CERCLA program, but could lead to flexibility on targeted issues and may lead to useful incentives for participation and private party investment for redevelopment. The most immediate impact, however, would likely be felt at sites selected for the “top 10 list” or those selected as pilots for new policies.  Since many of the recommendations require additional policy development and implementation tasks, it is difficult to determine which recommendations may be realized.

With recommendations that span multiple topics and a short timeframe, there should be much news about program developments over the coming months. Going forward, PRPs should follow closely the policy development and may watch for opportunities for comment and for participation in pilots, two types of PRP input that could help to shape some of the recommendations into useful and effective modifications.

© 2020 Beveridge & Diamond PC National Law Review, Volume VII, Number 214

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About this Author

Loren R. Dunn Environmental Litigation & Regulation Attorney Beveridge & Diamond Seattle, WA
Principal

Loren represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.

Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and freshwater sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and...

206-315-4810
Pamela D. Marks Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD
Principal

Pam helps her clients tackle water, waste, and historic contamination regulatory issues and litigation.

Pam offers her clients the experience and judgment from decades of environmental counseling and litigation. She currently co-leads the firm-wide Environmental Practice Group, and formerly has managed Beveridge & Diamond's Baltimore office and led the firm’s Contaminated Properties practice.

Pam focuses her practice on solid and hazardous waste management, contaminated property remediation, water discharges, chemicals regulation, and project development. She counsels clients on environmental regulatory compliance, permitting, and risk management. She also has experience litigating permitting and compliance issues as well as common law claims. She also offers experience with the overlay of bankruptcy and environmental liabilities.

Regarding contaminated properties, Pam represents clients on hazardous substance and petroleum remediation issues arising under state law, CERCLA, RCRA, and FUSRAP. She assists real estate buyers and sellers with environmental due diligence, negotiating environmental liability contractual provisions, and identifying and implementing brownfields risk management strategies. For example, she has helped her clients to assess when and how to pursue state voluntary cleanup programs, and the circumstances under which a purchaser may avail itself of a CERCLA defense for innocent landowners.

Pam's clients have included governmental entities and businesses in the chemical, power generation, manufacturing, land development, biosolids, solid waste treatment, petroleum, retail, and beverage industries, as well as individuals and non-profit organizations.

Before joining B&D, Pam served as a Maryland Assistant Attorney General representing the Maryland Department of the Environment, where in 1997 she received the Attorney General's Exceptional Service Award. She also served as a law clerk for the Honorable Joseph H. Young of the United States District Court for the District of Maryland.

Pam is a former Chair of the Maryland State Bar Association Environmental Law Section Council and former President of the Women's Law Center of Maryland. She has also served on other nonprofit boards.

410-230-1315
Kaitlyn D. Shannon Environmental Enforcement & Litigation Attorney Beveridge & Diamond San Francisco, CA
Associate

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation across a range of industries and issues.

She is an experienced environmental litigator and regularly appears in California state and federal courts, and she is the deputy leader of the firm’s Litigation practice group. She has experience with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including defending against natural resource damages claims. She is also well-versed in California state-law claims, including California’s Superfund program,...

415-262-4020