United States: EPA Deletes Several Superfund Sites From The NPL And Targets More In 2018 And Beyond

Last Updated: January 12 2018
Article by Van P. Hilderbrand Jr and Russell V. Randle

U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt says that expediting cleanups at Superfund sites is one of his top priorities. Since 1980, EPA has had the authority to clean up contaminated sites and force parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work through the Superfund program, also known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

According to EPA's website, as of November 2017, 1,736 sites have been placed on the National Priorities List (NPL), CERCLA's list of the most critical cleanups. Of those 1,736 sites, 395 have met required cleanup criteria and have been deleted from the NPL. Another 49 sites have been proposed for the NPL and are awaiting decisions by EPA and other federal agencies.

Administrator Pruitt is the latest to criticize EPA's slow pace in conducting and completing cleanups, though he is specially situated to take steps to speed up the process. In an effort to expedite cleanup decisions, EPA recently released a list of 21 Superfund sites that the agency says will be "targeted for immediate and intense attention." The issuance of some form of list emphasizing the sites that would receive the Administrator's increased attention has been anticipated for a few months: the list responds directly to one of the 42 recommendations on improving the Superfund program provided by a Task Force established by Administrator Pruitt in May 2017 (discussed previously on this blog here). The targeted sites list was initially expected to be a "Top 10" list of Superfund sites, but the Administrator determined that more sites "would benefit from his direct engagement."

Last week, EPA did announce that in 2017 seven sites were partially or completely removed from the NPL. Before an unusually low year in 2016 where only two sites were removed from the NPL, seven or more sites were removed in each of 2013, 2014, and 2015. At the same time, however, facing the reality that the speed of cleanups can be limited by complexities in the process, EPA announced that the agency was delaying a decision that the Hudson River Superfund site cleanup is complete while the agency finalizes its report.

EPA Provided Some Guidance on the Targeted Sites List, but its Practical Effect on Responsible Parties and Affected Communities Remains Unknown

It is too early to speculate on what the effect of the targeted sites list will be for included and non-included sites. EPA has provided some insights, however. Of interest, we know that sites will move on and off the list "as appropriate," and that the size of the actual list will fluctuate. We also know that the agency does not consider these 21 sites to be the most contaminated of the 1,184 current NPL sites under EPA's jurisdiction; instead the Agency identified sites with critical near-term milestones requiring timely resolution. The nature of the milestones varies among the sites.

EPA also offered some guidance in a Question and Answer document regarding examples of actions the Administrator may take at the listed sites. Administrator Pruitt may (1) encourage and support timely negotiations with potentially responsible parties; (2) work with all interested parties to determine whether a site will be listed on the NPL; (3) facilitate finalization of remedy decisions; and (4) facilitate dialogue with interested parties on redevelopment opportunities. With regards to Administrator Pruitt's facilitating the finalization of remedy decisions, recall that in May 2017, Administrator Pruitt took back the decision-making authority for remedies costing $50 million or more which had previously been delegated to the EPA Assistant Administrator and to the regional administrators, reportedly in an effort to expedite decisions, but in practice, it is viewed by some as a way to exert greater political control over the most costly remedial decisions.

As the actions referenced in the EPA press statement and Question and Answer document were already available to Administrator Pruitt before the release of the list, placement on the new list may have little practical effect beyond increasing the visibility of key decisions at these sites and possibly to encourage faster decisions by EPA at some of them.

This possibility is reinforced by the absence of any additional funding or availability of EPA personnel to manage the sites on the targets sites list; the only difference apparently being the commitment by Administrator Pruitt to engage with key decisions for these sites in the near term. Funding and manpower usually help expedite these types of cleanups, but the Administration's push to reduce EPA's FY2018 operating budget and headcount (including cuts to the Superfund program), could tend to slow down decisions in the program, thereby suggesting that there may be little overall improvement in average cleanup times.

The Sites Listed Vary by Categorization, Geography, Site Activity, and Cleanup Status

The list of targeted sites can be found here. A majority of the 21 listed sites are on the NPL (17 in fact), three have been proposed to be listed on the NPL, and one is in the pre-NPL process. In addition to their NPL categorization, the listed sites also differ in geography. There is at least one site in each of EPA's ten regions. Virginia has one listed site, the L.A. Clarke & Son site in Spotsylvania County, while Maryland and the District of Columbia have none. Two states have multiple sites listed – New Jersey has three and Montana has two. There appears to be little commonality among the type of contamination or site activity (only that three are mining-related sites) or their stage in the cleanup process. Some have languished on the NPL for many years, while others have yet to be listed. Some still pose major environmental risks while others have substantial development opportunities already identified. Some are still in the administrative remedy selection process while others are involved in litigation. As mentioned above, the only common thread is that each targeted site has an identified, upcoming milestone.

Conclusion

Only time will tell regarding whether this tool for expediting cleanups will lead to more sites being expeditiously deleted from the NPL. Administrator Pruitt is facing several significant hurdles in fulfilling his goal given the uncertainty surrounding EPA's budget and the fact this tool provided him with no new resources or authority. Just as the targeted sites list remains fluid, so does this issue. Please check back to the blog for updates or contact any of our environmental team.

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.

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