United States: A New Budget, A New EPA Administrator, And New Uncertainty For Superfund Cleanups

Last Updated: June 13 2017
Article by Van P. Hilderbrand Jr and Marian C. Hwang

When Scott Pruitt took over the post as Administrator of the United States Environmental Protection Agency (EPA), he made it clear that one of his top priorities was to expedite cleanups at contaminated sites across the country. Facing reductions in the agency's FY2018 operating budget, including cuts to the Superfund program, it has become clear that in order to achieve this goal, Administrator Pruitt will not be able to simply increase spending, but instead must look to overhaul and restructure the cleanup program from within. To that end, he has made several significant decisions recently including centralizing remedy selection decision-making authority at EPA headquarters and creating a regulatory reform task force.

Briefly, What is Superfund?

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), enacted in 1980, and the Superfund Amendments and Reauthorization Act (SARA), enacted in 1986, are the federal statutes that provide EPA with the responsibility and authority to identify and clean up contaminated sites throughout the country that pose harm to human health and the environment. CERCLA holds those responsible, in whole or in part, for releases of hazardous substances at a site through a joint and several, strict liability scheme. Those that can be found liable include current and former site owners and operators, as well as waste generators and those that arrange for the disposal of hazardous substances at the site.

CERCLA created a trust fund, also referred to as the Superfund, to finance emergency responses, cleanups, and enforcement activities against potentially responsible parties (PRPs). The original money set aside to address contaminated sites has long since dried up. Today, the program is replenished mainly with Congressional appropriations from the general tax fund and from money collected from responsible parties.

The Superfund program is popular among lawmakers and their constituents because it has been generally seen as a success -- remediating contaminated properties and returning them to productive use through the Superfund Redevelopment Initiative or through a state Brownfields program. According to EPA, there are 1,300+ Superfund sites on the National Priorities List (NPL) in the U.S., and at least one in every state. Many have been sitting stagnant for years. Maryland has 20+ sites, while Virginia has 30+ sites. Due to the sheer size of the program, the money involved, and the fact that many constituents live at or near a Superfund site, this program matters to Congress.

Over the last decade, the program has suffered from under-funding from Congress. Thus, there has been a decrease each year in the number of cleanups and no reform. All signals indicate that FY2018 funding will be no different.

The Uncertain Future of Enforcement, Oversight, and Compliance Monitoring

As we discussed in an earlier post, the White House's FY2018 proposed budget outline decreased funding to EPA's operating budget by 31 percent, including a $330 million cut to the Superfund cleanup program. The new budget, proposed on May 23, 2017, mostly retained these budget reductions. Although the final FY2018 budget must be approved by Congress, it is clear that significant reductions are on the horizon.

Such a drop in spending may inevitably affect the across-the-board resources available for emergency response and removal, civil and criminal enforcement, compliance monitoring, environmental justice, reclamation and reuse, and the program's support functions. Funding or lack thereof is usually a contributor in the backlog of sites as EPA can't cleanup sites on its own and has no resources to force PRPs to perform the remediation activities or to pay the agency back. Spending cuts do not decimate the program's ability to be effective, but it may slow down the agency's ability to address some of its perceived needs.

With a proposed reduction in resources by nearly one-third, where does that leave the Superfund program? What we have seen over the past few months is that Administrator Pruitt plans to expedite cleanups through regulatory reform and by handling the negotiations and final decision determination on cleanup remedies himself.

Remedy Decision-Making Authority Shifts to EPA Headquarters

EPA Administrator Pruitt issued a memorandum on May 9, 2017 centralizing decision-making on major Superfund remedies at EPA headquarters. Final decisions on remedies exceeding $50 million are to be made by Administrator Pruitt or the Deputy Administrator, not by Regional Administrators. According to the memorandum, this move will improve the remedy selection process by promoting increased oversight and accountability and "enhancing consistency in remedy selection across states and the regions." Importantly, the shift in authority only applies to prospective remedies, not those that have already been made and documented in Record of Decisions, and doesn't shift implementation and oversight responsibility, which remains with the various regions. Many opponents believe this move is simply a way to reduce costs and time in the cleanup process, and question whether expedited cleanups actually means less rigorous cleanups.

Task Force Created to Overhaul Contaminated Site Remediation

Next, EPA Administrator Pruitt issued a memorandum on May 22, 2017 establishing a task force of agency officials to streamline and overhaul the Superfund program. The memorandum asks for detailed recommendations within 30 days "on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country." In particular, the memorandum requests recommendations on how to:

  • Streamline and improve the efficiency and efficacy of the overall Superfund program (e.g., identify best practices, reduce time between site identification and beneficial reuse, encourage private investment at sites, realign incentives of all involved parties);
  • Overhaul and streamline the process used to incentivize private investment at sites (e.g., prospective purchaser agreements, bona fide prospective purchaser status, comfort letters, ready-for-reuse determinations);
  • Streamline and improve the remedy development and selection process;
  • Promote consistency in remedy selection across regions while utilizing the National Remedy Review Board and the Contaminated Sediments Technical Advisory Group;
  • Utilize alternative and non-traditional approaches for financing site cleanups;
  • Improve the management and use of special accounts;
  • Reduce administrative, overhead costs, and other burdens borne by remediating parties; and
  • Improve the agency's interactions with key stakeholders.

According to the memorandum, Administrator Pruitt hopes that these recommendations and changes will help the Superfund program "reach its full potential of returning formerly contaminated sites to communities for beneficial use."

Industry Groups also Urge EPA to Overhaul the Superfund Program

In line with the President's February 24, 2017 Executive Order 13777 entitled "Enforcing the Regulatory Reform Agenda," EPA sought comments from the public on what steps the agency should take as it pursues regulatory reform and reviews its existing rules and policies. The agency received thousands of comments, some of which urged the agency to preserve existing policies to protect human health and the environment while others asked the agency to overhaul the various regulatory frameworks that commenters saw as outdated, inefficient, and ineffective.

Many comments were submitted by regulated industries on CERCLA reform. Industry groups, such as the Superfund Settlements Party (coalition of large chemical and other manufacturing companies) and the Federal Recycling and Remediation Coalition (coalition of hazardous waste generators), urged EPA to make a variety of policy changes that ease the regulatory burdens of CERCLA and expedite cleanups. These include an effort to streamline remedy implementation from a scientific, engineering, and construction standpoint, a review of the exposure scenarios used to assess risk, and a review and update to agency guidance documents, particularly on issues such as the use and consideration of applicable or relevant and appropriate requirements (ARAR), treatment of principal threat waste, identification of exposure pathways, consideration of future land use, and vapor intrusion.

Potential Use of Superfund Site Accounts to Supplement the General Fund

One of the areas the regulatory reform task force will report on is how to improve the management and use of special accounts. The funds dedicated to the Superfund program fall into two categories: (1) a general fund replenished with money appropriated to the program from Congress and used by EPA for agency-led site cleanups, removal actions, pre-remedial work, and to pay personnel; and (2) money in accounts that have been established to cleanup particular sites funded by responsible parties under a court-sanctioned settlement agreement. The cuts to the FY2018 budget discussed above affect the first category. With respect to the second, according to a 2009 report from the EPA's Office of Inspector General, the site-specific funds could be $1 billion or more across 800+ accounts.

Adding to the uncertainty is the potential use of the site-specific accounts to help bridge the gap left by spending cuts, and fund the goals of the broader program. One would think that remedial work at sites with dedicated accounts would progress as before and as planned; however, because EPA administrator Pruitt has made it a priority to speed up cleanups and delist sites, these dedicated site accounts could be reclassified and the money used to fund the broader program. At this point, it is unknown whether the agency has the authority to do this, whether it can do this from an accounting and controller perspective, whether this would create a breach of contract action at sites where a settlement agreement is in place and the money is used for different purposes, and whether this action would undermine settlement agreements in general. It is still too early to tell if and how EPA will use the site-specific accounts.

Subsurface Intrusion Rule Takes Effect

A final rule allowing EPA to place a contaminated site on the NPL based solely on the presence of subsurface vapor or water intrusion went into effect on May 22, 2017. The final rule was signed during the last month of the Obama Administration and its effective date was delayed twice by EPA Administrator Pruitt.

The rule added subsurface intrusion to the list of human soil exposure scoring pathways considered by the agency's Hazardous Ranking System, which evaluates and scores sites for possible inclusion on the NPL. According to EPA, "subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated zone and/or the surficial ground water into overlying structures." EPA has a congressional mandate in CERCLA to identify releases of hazardous substances that warrant further investigation and to determine if risks should be addressed.

According to an agency Question and Answer document, EPA doesn't believe this new final rule will increase the number of sites listed on the NPL or site assessments performed each year. That said, the agency points to budget constraints and the rising cost of subsurface intrusion site assessments as the reasons more sites won't be added to the NPL. If budget levels return in future years, the final rule provides the agency with another mechanism to address sites that pose a risk.


For a program that hasn't changed much in the past few decades, Superfund is set to see some significant policy changes in light of the new Administration. All eyes will be on the proposed budget and cuts to the administration of the Superfund program, the first few remedies selected by EPA headquarters, and on the regulatory reform task force's findings, which should be in the next month. As this issue evolves in the coming weeks and months, please check back to this blog for any updates. In the meantime, if you have any questions, please contact any of the attorneys listed on this page.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Miles & Stockbridge
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Miles & Stockbridge
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions