While the Environmental Protection Agency’s (“EPA”) Superfund program under the Comprehensive Environmental Response and Liability Act or “CERCLA” has often been dubbed the “Comprehensive Employment and Retirement Lawyers Act,” due to the arduous and time consuming process of remediating Superfund sites---EPA is seeking to expedite this process with sweeping changes (which could lead to an earlier retirement for environmental lawyers).  

An EPA Superfund Task Force, specially convened on May 22, 2017 by EPA Administrator Scott Pruitt, completed its work in short order with the release of its report on July 22, 2017 (the “Task Force Report”), which identified 5 goals, 13 strategies, and 42 recommendations to (1) expedite Superfund cleanups; (2) re-invigorate responsible party cleanup and reuse; (3) encourage private investment; (4) promote redevelopment and community revitalization; and (5) engage partners and stakeholders. By memorandum, dated July 25, 2017, Mr. Pruitt approved the Task Force Report by directing the Task Force to continue working and implementing the various recommendations with specific timeframes for completion. In addition, Mr. Pruitt’s Memorandum identified 13 actions to be taken immediately, including ---

1. Prioritizing and taking control over any site where the risk of human exposure is not fully controlled, which requires the submission of priority site lists with projected dates of control in 60 days.
2. Utilizing early or interim response actions, including removal authority or interim remedies, more frequently as appropriate to address immediate risks, prevent source migration, and return portions of sites to reuse while more detailed evaluations of other portions of sites are ongoing.
3. Prioritizing development of remedial investigations and feasibility studies (RI/FS) for those sites and projects that require more immediate action to focus the use of available funds and resources.
4. Identifying potential pilot contaminated sediment or complex groundwater sites where adaptive management strategies can be implemented.
5. Compilation of existing information on the cleanup status and reuse potential (as applicable) of National Priorities List (“NPL”) sites.
6. Tracking remedy implementation and completion progress in real time with the Superfund Enterprise Management System or with another mechanism, if more efficient.
7. Focusing training, tools, and resources on current NPL sites with the most reuse potential.
8. Working with potentially responsible parties (“PRPs”), state, tribal and local governments, and real estate professionals to identify opportunities for PRP-lead cleanups to consider future reuse in cleanups.
9. Submitting the total of EPA regional indirect cost charges to PRPs for FY 2016 and FY 2017 to date, as well as the formula by which that is derived.
10. Encouraging PRPs to work with end-users to voluntarily perform assessment and additional cleanup or enhancement work to achieve reuse objectives and to fund or perform enhanced cleanup or “betterment” by voluntarily entering into agreements with end-users.
11. Using purchase agreements for potential Bona Fide Prospective Purchasers (“BFPP”) outlining their actions necessary to preserve their BFPP status.
12. Using enforcement authorities, including issuance of unilateral orders to recalcitrant PRPs, more actively to discourage protracted negotiations over response actions.
13. Maximizing deletions and partial deletions of sites that meet CERCLA and National Contingency Plan (NCP) requirements with the formulation of lists of NPL sites expected to be proposed for deletion or deleted by July 25, 2018. 

More broadly, the specific Task Force Report goals, strategies, and recommendations are outlined below. Each of the recommendations will result in greater clarification and detail over the next 60 days and beyond, based on the outlined timeframes. As these details are released, future blog posts will outline EPA’s efforts to implement the Task Force recommendations, and will focus on Superfund enforcement developments.    

GOAL 1 seeks to expedite Superfund cleanup and remediation with the following strategies:

• Accelerating the completion of NPL Sites to completion by developing –
  • List of NPL sites to target for completion;
  • Top Ten Administrator’s Emphasis List of NPL Sites, which require “immediate and intense attention;” and
  • Management strategies where remedies have been selected to move sites towards NPL deletion, such as policy revisions, tracking, annual reports and focusing resources on maximizing NPL deletions or partial deletions.
• Promoting Adaptive Management at large and/or complex sites through the use of early/interim records of decision and removal actions.
• Expediting National Contingency Plan review and remedy selection approval by clarifying policies/guidance and encouraging interim/early actions during the RI/FS process to address immediate risks, clarify groundwater restoration principles for flexibility, early evaluation, and groundwater beneficial use policies applicable to non-drinking water aquifers.
• Using Best Management Practices (BMP) during the RI/FS stage, systematic planning with focused scoping to target specific areas of remediation, remedy optimization (i.e., efforts to identify and implement specific actions that improve the effectiveness and cost-efficiency of a remediation phase), and state-of-the-art technologies (such as real-time investigation technologies, data visualization techniques, and other technologies).
• Developing tools and resources for EPA’s Remedial Project Managers to assist with BMP applications, scoping and targeted technical reviews.
• Reviewing third-party contracting procedures and contractors to determine appropriate use parameters and qualification methods for EPA contracting.

GOAL 2 seeks to expedite responsible party cleanup and reuse with the following strategies:

• Expediting responsible party cleanup through ---
  • Use of early response actions at Superfund Sites, particularly sediment sites, while comprehensive negotiations are underway for the entire cleanup.
  • Identifying opportunities to utilize various Federal and State authorities to conduct response actions that are consistent with CERCLA and the NCP, such as use of the Superfund Alternative Approach, Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act, and other Federal or State authorities to address hazardous waste sites, and designate states as leads on sites, where appropriate.
  • Maximizing use of special accounts to facilitate site cleanup and/or redevelopment through financial incentive funding to BFPPs that agree to perform cleanup work, and use of special account funds to pay for EPA oversight.
  • Speeding up settlement process with Federal PRPs through policy changes and model settlement provisions.
  • Reducing EPA’s claims for its oversight costs, as incentives to cooperative PRPs, and maximizing use of enforcement tools, such as unilateral administrative orders to recalcitrant parties, as disincentives for protracted negotiations, or slow performance under existing cleanup agreements.
  • Reducing financial assurances required under enforcement documents to reduce cooperating PRP’s financial burden.
  • Reinforcing need to adhere to informal and formal dispute timelines in Federal Facility Agreements.
• Creating oversight efficiencies for PRP lead cleanups by designating a single agency lead for each site to reduce overlap and duplication and identifying opportunities to engage independent third parties to oversee certain aspects of PRP lead cleanups, such as long-term monitoring.
• Promoting redevelopment/reuse of sites by encouraging PRPS to invest in reuse outcomes through ---
  • Early involvement with end users to perform assessment and additional cleanup/enhancement to achieve reuse objectives;
  • Direct funding or performance of enhanced cleanup or “Betterment” by entering into agreements with end users; and
  • “Marketing” of property undergoing cleanup to encourage private investment at sites during and after cleanup.

GOAL 3 seeks to encourage private investment through financing of site cleanups and use of alternative and non-traditional approaches, such as

• Environmental Liability Transfer (“ELT”) approaches; 
• Other risk management tools, including the creative uses of:
  • Insurance, annuities, and indemnification for third parties interested in buying/selling the risk of cleanup;
  • Comfort/status letters when appropriate; and
  • Settlement tools to provide certainty to encourage and/or reassure PRPs contemplating using an ELT or other tools.
• Streamlining the process for issuing comfort/status letters;
• Expanding use of various agreements to limit liability, such as prospective purchaser agreements, BFPP purchase agreements, windfall lien settlement agreements, reuse assessment agreements, prospective operator agreements, and prospective easement agreements;
• Provisions to facilitate financing;
• Identifying public-private partnership investment opportunities; and
• Addressing liability concerns of local governments through enforcement guidance and model comfort/status letters unique to local governments.

Goal 4 seeks to promote redevelopment and community revitalization through information sharing, focusing development on 20 sites with greatest potential for reuse and 20 sites with high potential for reuse, publicizing site specific information, and creating training and information updates.

Goal 5 seeks to increase partner and stakeholder engagement.

The Task Force Report can be found here and the EPA Administrator’s Memorandum can be found here.

Miles & Stockbridge represents parties at numerous Superfund sites, is coordinating counsel to a Superfund site, and has pursued and defended responsible party contribution actions.  During the past year, and prior to the issuance of the Task Force Report, EPA already has begun efforts to expedite the Superfund process --- a very welcome direction! 

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Accessing this blog and reading its content does not create an attorney-client relationship with the author or with Miles & Stockbridge. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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