On May 22, 2017, EPA Administrator, Scott Pruitt, convened a Superfund Group to examine the existing Superfund process and make recommendations to streamline the process and incentivize parties to accelerate remediation and revitalize the properties. On July 25, he received the group’s report and ordered implementation of its recommendations. In particular, the recommendations and the Administrator’s accompanying memorandum are aimed at expanding the role of EPA Headquarters in oversight of major sites, and re-focusing the Regions on assessing and facilitating the re-use of sites. Among the highlighted steps were

  • A priority of list of ten sites that had been on the National Priorities List (NPL) for at least five years without meaningful movement, which would be subjected to weekly scrutiny by his office
  • Optimization reviews to closely track progress at old sites
  • Use of early action at sites to accelerate partial cleanup during an often extended investigative process
  • Use of indirect cost reductions as an incentive to PRPs to conduct timely and high quality cleanups
  • Use of Unilateral Administrative Orders to discourage negotiation delays
  • Regions to focus on the re-use potential of sites
  • Establishment of strong stakeholder relationships, with communities, PRPs, and potential developers of the sites

In addition, he directed the Regions to make a list of sites they expect to delete from the NPL within the next 12 months.

What It Means

A call by the Administrator for reform of the Superfund process is not new. Most of the proposed approaches likewise have been in the agency arsenal for years, and have even been used. And the directive to list sites expected to be deleted this year sounds like the bean-counting that has often characterized agency performance – numbers, not real results. However, there is some reason to expect that this time, there could be significant progress made.

Administrator Pruitt had already indicated that any site with an estimated remediation cost over $50MM would be reviewed directly by his office. Under this directive, there will be greater attention paid to mega-sites, particularly sediment sites, that have dragged on for decades without final remediation plans, absorbing an inordinate share of agency and PRP resources. PRPs will apparently have greater access to highly qualified headquarters personnel, without having to fight through levels of regional review by often inexperienced managers. That factor alone may markedly accelerate the process at those sites. Greater reliance on private sector developers who seek to reuse the sites should also reduce the agency’s costs, accelerate the cleanup process and benefit the communities by restoring sites to economic use.

Of course, this all assumes the agency is not hamstrung by a lack of resources due to budget cuts. That is a big assumption, since it would be easy to assign a major share of responsibility for the problems in the existing process to regular budget cuts, leading to frequent staffing changes and inordinate delays in the review of work plans, investigative reports and preparation of remediation decisions. EPA has announced significant personnel cuts, many of which will occur through the attrition of experienced employees. And a $50MM cutoff for Headquarters review of a Superfund site unfortunately does not limit that review to a small number of sites for that staff to handle in addition to its regular workload. $50MM is actually a fairly low bar in the Superfund context. For example, EPA Region 10 estimates the cost to cleanup Portland Harbor $1.2 BB, which most PRPs see as much too conservative.

If the personnel necessary to administer the program are simply not available, all the new process won’t make Superfund easier or less expensive to navigate. Nothing is quick in the Superfund world, but we should know within the next year whether this is real change, or just more rhetoric.