Tip #1: Focus on your CERCLA site’s Five-Year Review one year before it is due. This is the first article of a three-part series to help you better manage your Superfund site obligations from the perspective of an attorney who has served as Superfund common counsel for many years.
As the federal Superfund program enters its third decade of implementation, the issues that you might see arise on older sites could be unexpected ones. “Vapor intrusion” risks and “institutional controls” are terms that were likely not seriously invoked if your sites are over 10 years old (i.e., 10 years following the entry of the CERCLA Consent Decree governing your site).
Don’t put your sites on auto-pilot, particularly if you do not have an environmental attorney as a member of your site team. CERCLA Five-Year Reviews may present new challenges that can be best addressed by your team in the year prior to the Five-Year Review Report due date. For example: 1) submit FOIAs to collect relevant information on how the agencies and third parties are viewing your site; 2) analyze the facts and law to prepare arguments to advocate for your positions on issues likely to arise in the Five-Year Review; 3) recheck the prior Five-Year Review Report to ensure that the Agency properly followed-up on identified tasks; and 4) review the latest policies issued by your U.S. EPA Regional Office and State to ensure you have the capabilities in place to respond to new requests, such as assessing a vapor intrusion risks, adding institutional controls, and addressing new standards.
Don’t overlook the opportunities available to you in a Five-Year Review. Your consultant may have detected favorable trends in the data that support eliminating a groundwater extraction well, monitoring well, or certain sampling parameters. Ask the Agency for these advantageous modifications well in advance of the due date for the Five-Year Review so that these streamlining measures can be incorporated by the Agency into the Report.
No one wants to be surprised with a Five-Year Review Report concluding that your multi-million dollar remedy is not protective of human health and the environment. The consequences of such a conclusion can be costly.