EPA has proposed to end its funding of Superfund enforcement activities by the Department of Justice’s (DOJ) Environment and Natural Resources Division (ENRD). In its proposed budget for FY 2018, EPA has cut the nearly $26MM that DOJ included in its budget for FY2018. This represents a complete change from the practice since 1986, when EPA, through an agreement with DOJ, has provided over $800MM in reimbursement funds to DOJ, representing 27% of the ENRD budget.

What it Means

This is not small change. The eliminated funding could cut 115 FTE’s (Full Time Employees), including 69 of the approximately 431 lawyers in the Division. It also appears that EPA’s own budget for enforcement efforts for 2018 would be cut.

Virtually all cleanups are now carried out under unilateral enforcement orders (UAOs), rather than through EPA cleanup followed by collection efforts. It is difficult to imagine how additional compliance could be obtained by reducing the resources directed to negotiation of settlements and issuance of UAOs.

DOJ would now have to continue to provide enforcement support to EPA, but from its base funding, not reimbursement from EPA. In the past, ENRD attorneys have been known to grouse that the reimbursement agreement between EPA and DOJ resulted in a misallocation of enforcement resources, putting Superfund ahead of air and water enforcement. If Congress approves EPA’s change in policy, the issue will not be misallocation, but rather how limited DOJ funding will be allocated among its various environmental missions. Hard choices lay ahead.

In the short run, diversion of more of EPA’s budget to cleanup activities may result in more aggressive cleanup at some existing sites. However, the impressive voluntary cleanup performance of recent years may be difficult to maintain. Potentially responsible parties may feel that they can avoid or slow-walk the enforcement process, particularly at small sites, due to limited enforcement resources.