The Comprehensive Response Compensation and Liability Act (CERCLA or “Superfund”) imposes strict, joint and several liability on responsible parties for remediation of contaminated properties. As compared to other federal environmental programs, the CERCLA program was a significant point of emphasis during the Trump Administration. Notably, both Scott Pruitt and Andrew Wheeler, former Environmental Protection Agency (EPA) Administrators, held that a key task of the federal EPA is addressing hazardous waste sites and controlling hazardous substances. Both Pruitt and Wheeler, during their tenures as head of EPA, prioritized the de-listing or partial de-listing of NPL sites by seeking action through private party settlements and remediation, often concentrating on “brownfields” that were ripe for redevelopment. In addition, both oversaw the convening of experts in a Superfund Task Force, commissioned to develop improvements and streamline the CERCLA process to obtain better and faster results.
However, despite continuing action during the past four years, not all has remained rosy for CERCLA. The number of unfunded sites continued to increase, resulting in the Biden Administration inheriting 34 unfunded Superfund sites, the greatest backlog in 15 years. This backlog is particularly significant because a 2020 EPA study found that a disproportionate number of people of color lived within three miles of Superfund site. A 2019 Government Accountability Office report identified 945 Superfund sites that are vulnerable to climate change impacts such as hurricanes, flooding, wildfires and rising sea level, approximately 60% of all Superfund sites. As a large number of Superfund sites located near Environmental Justice communities are also potentially impacted by climate change, they are also ripe for action under the Biden Administration’s climate change and Environmental Justice initiatives.
From its beginning, the Biden Administration has highlighted Environmental Justice as one its highest priorities to address throughout the federal government’s regulatory programs. On January 21, 2021, it issued Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government | The White House. On April 7, 2021, EPA Administrator Michael Regan issued a memorandum, affirming EPA’s Commitment to Environmental Justice. Among other actions, EPA’s Office of Enforcement and Compliance Assurance (OECA) has issued a series of memoranda of how OECA will advance the agency’s Environmental Justice goals through enforcement tools. On July 1, 2021, Larry Starfield, Acting Assistant Admistrator of OECA, issued a memorandum regarding. Strengthening Environmental Justice Through Cleanup Enforcement Actions (epa.gov) (Memorandum). The Memorandum prioritizes three areas where OECA’s enforcement tools may be used to address concerns faced by communities overburdened by pollution: (1) Early Action and Expedited Cleanup Actions; (2) Robust Enforcement and Oversight; and (3) Increased and Enhanced Community Engagement.
Early Action and Expedited Cleanup Activities.
The Memorandum recommends that EPA should act to speed the response to hazardous substances in communities overburdened by pollution. This could include utilizing CERCLA §106 or Resource Conservation and Recovery Act (RCRA) § 703 orders seeking an injunction or other action, including orders for interim relief for acute threats, if EPA finds an actual or threatened release that may present imminent and substantial endangerment to human health and the environment. In less “emergency” situations, the Memorandum recommends several actions to expedite cleanups including speeding up (or bifurcating) the Remedial Design/Remedial Action (RD/RA) negotiations and limit the time of such negotiation to one year, with the possibility of issuance of unilateral administrative orders when negotiations fail or do not result in a timely settlement. The Memorandum recommends involving Regional Counsel when a potentially responsible party (PRP) requests extensions or misses deadlines; however, notably, the Memorandum does not highlight delays that are often caused by EPA. Anyone who has been involved in the negotiation and evaluation of CERCLA agreements, assessment, remedial design or remedial action has experienced long delays caused by EPA’s review and approval process despite the private party’s attempts to move the process along. It may take more than this Memorandum to significantly accelerate EPA’s standard review practices.
Robust Enforcement and Oversight.
The “robust” enforcement and oversight component of the Memorandum focuses on both EPA oversight and a new emphasis on community “involvement” in enforcement. First, the Memorandum recommends increased oversight of a potentially responsible party’s compliance with a Consent Decree or other enforcement instrument when “overburdened communities may be adversely impacted by noncompliance.” This oversight may include increased compliance reviews, including assurance that institutional controls are in place and monitored on a regular basis and determination whether the institutional controls are having the intended effect or if new institutional controls are needed. With regard to increased community involvement in enforcement, the suggested measures focus on the potential need to address “unintended adverse impacts” on overburdened communities such as odor, dust, traffic or noise. EPA recommends further evaluation to see if the actions implementing the remedy are having or could have unintended adverse impacts on a community and, if so, whether enforceable language should be included in the Consent Decree or other agreement to minimize such adverse impacts. Interestingly, EPA hints that it may require the inclusion of a “Supplemental Environmental Project” in Consent Decrees or other agreements, stating that EPA should “consider inclusion of provisions in settlements or agreements that provide for the performance of a specified project in the event of noncompliance with the Consent Decree or other enforcement instrument. The Memorandum also suggests that “advanced monitoring equipment” may be needed to demonstrate compliance with remedial goals and that information, along with a detailed schedule of compliance obligation, should be provided to the impacted community.
The Memorandum encourages EPA to engage the impacted community in a “proactive, transparent and consistent manner” throughout the cleanup and enforcement process to build trust in an impacted community. Most of the recommendations in the memorandum are common sense and consistent with best practices for engaging with a community. The Memorandum recommends better communication with affected communities by improving the accessibility and effectiveness of the communications about remediation activities. EPA should ensure that it is sharing information with the community in language and a format that is designed for the specific community and should convey site specific information and the benefits of the remedial actions at the site as well as the responsible party’s compliance status. The Memorandum also suggests increased involvement of EPA attorneys with regard to community involvement, including attending public meetings to better understand community needs and concerns and address those concerns in the enforcement instruments with PRPs.
So what does all this mean? Maybe a lot or maybe very little in practice. EPA may want to consider the following.
First, most of the announced policies already exist in EPA’s playbook. Further, expedition and focus on CERCLA cleanups has been a key goal of EPA for the last four years. EPA may simply need to rigorously implement their current policies generally and that effort will capture improvements in Environmental Justice responses across the country.
Second, delays in CERCLA response actions arise from many considerations. One not uncommon cause of delay is the time that EPA, or more frequently EPA’s contractor, takes to act at a particular site. The Memorandum provides no recourse for affected communities or private parties to challenge the government’s pace of action. The policy does recognize this delay with respect to federal facilities, but not sites where EPA has the lead. Further, it is also true that EPA often is slow to act because EPA staff is overburdened with obligations. The Memorandum does not reflect new budget or staffing decisions to address these issues. Finally, science-based decisions require comprehensive and defensible data -- the Memorandum makes no mention or suggests no alternatives to collecting, analyzing, sharing and seeking peer reviewed decisions based upon the science. Importantly, Environmental Justice schedules should respect the science first.
Third, the Memorandum seems to suggest that they are making these policies up de novo when many relevant state cleanup programs already have been up and running for years. For example, in Massachusetts the state’s cleanup program has for years had a vigorous public involvement program for communities to be informed about and participate in cleanup decisions. EPA should seek to adopt best practices from around the country rather than re-inventing new wheels.
Fourth, while Supplemental Environmental Projects (SEPs) may indeed provide useful alternatives for actions at particular sites, there must still be a nexus between the SEP and the CERCLA release that is being addressed. Notably, SEP review and approval at EPA’s Regional offices has not, in the past, necessarily proved to be an efficient and prompt process. Once EPA works out the mentioned legal challenge to SEPs, resolving those pre-existing impediments are likely to provide the most relief for overburdened communities.
It is certainly a good thing if EPA is adopting a sense of urgency in implementing its obligations under CERCLA to address threats to human health and the environment. It has all of the necessary tools already at its command. Let’s see how it goes.