As part of former[1] EPA Administrator Scott Pruitt's Superfund Task Force Recommendations, issued in its final form on July 25, 2017, one of the key strategies (Strategy 2) was to "Promote the Application of Adaptive Management at Complex Sites and Expedite Cleanup through Use of Early/Interim RODs and Removal Actions." On July 3, 2018, James E. Woolford, Director of the Office of Superfund Remediation and Technology Innovation, issued a memorandum "to provide a working definition of adaptive management (AM) and to outline an implementation plan to expand AM's use at Superfund remedial sites" (the Memo). Thus, two of EPA's highest ranking officials touted the use of AM in the realm of CERCLA, one of the more contested of all environmental laws in the United States. But how does this work? Is there a benefit to the potentially responsible parties (PRPs) who end up with a huge bill for cleaning up a site? With then Administrator Pruitt and Director Woolford both being behind a broader use of AM in the CERCLA context, there was the possibility that PRPs would benefit.

So far, the only benefit from a broader use of AM appears to be that PRPs might be able to remove a CERCLA cleanup from their reserves a little more quickly, assuming that the entire process is shortened. None of the other alleged benefits[2] provide an advantage to PRPs at all, but may benefit only EPA and other stakeholders. However, in doing so, it is likely that PRPs will have to pay more so that EPA, among other things, can become more transparent.

Throughout the Memo, Woolford claims, at times echoing Pruitt, that adopting AM on a broader level will "expedite" the process, whatever the process may be. Although Woolford also claims AM will "reduce data collection costs" during RI/FS projects, he also notes overall adoption of AM on a broader level "may require additional resource investments." In an age when orphan counts at many of the country's larger CERCLA sites have grown in numbers, it appears that EPA's broader use of AM will burden surviving PRPs with a greater share of cleanup costs. And with EPA possibly billing more oversight time to a given CERCLA site, the PRPs for that site could have to pay even more, rather than benefitting from broader use of AM. The question at this point is whether or not EPA can identify a methodology that would allow EPA to more broadly utilize AM at CERCLA sites while at the same time not placing a greater burden on the PRPs who typically investigate and remediate the sites.

So far, it is not clear that EPA has higher costs to PRPs on its radar as a problem, other than to state that "additional resource investments" may be required. Reviewing EPA's "Next Steps" section of the Memo, along with the table of upcoming goals, it does not appear that EPA has included any analysis of the increase in costs that would probably be foisted upon PRPs. The "Next Steps" Table is as follows:

So, in neither the Memo nor the Table is there any mention of how EPA will analyze the impact of broader use of AM on PRPs. Certainly EPA could intend that such an analysis be performed as part of one of its steps in the Table, but, with the agency already strapped for funds in the CERCLA program, and when the Memo already states that "additional resource investments" may be required, it stands to reason the "additional resource investments" will not be forthcoming from the nearly depleted Superfund!

To remedy the situation above, one of EPA's key goals should be to not increase the financial burden on the PRP groups investigating and remediating CERCLA sites across the country. In fact, EPA should, if at all possible, figure out a way to decrease oversight costs on the PRP groups who already bear oversight costs that are exceedingly high because of the CERCLA oversight processes that have developed over the years. Only then will PRPs buy into utilizing AM on a broader scale in the CERCLA program.So, in neither the Memo nor the Table is there any mention of how EPA will analyze the impact of broader use of AM on PRPs. Certainly EPA could intend that such an analysis be performed as part of one of its steps in the Table, but, with the agency already strapped for funds in the CERCLA program, and when the Memo already states that "additional resource investments" may be required, it stands to reason the "additional resource investments" will not be forthcoming from the nearly depleted Superfund!