United States: The Nickel Report: EPA's Superfund "Emphasis List" : Some New Questions

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly referred to as the Superfund law, directed the United States Environmental Protection Agency (EPA) to create a list of the country's most hazardous waste sites. Sites are proposed to be placed on this "National Priorities List" (or NPL as it is known to environmental law professionals) if they exceed a certain risk score, or Hazard Ranking, and added to the List if the ranking is confirmed after a formal notice-and-comment process. A detailed set of regulations called the National Contingency Plan (NCP) governs how sites placed on the NPL will be investigated, alternative remedies evaluated, and a final remedy selected and then implemented. The NPL, the NCP, and various EPA guidance memoranda have established what practitioners acknowledge is an imperfect but generally workable process in which EPA and states work with potentially liable parties to manage cleanups at NPL sites.

To address a host of imperfections in the Superfund process, the Trump administration created a Superfund Task Force which, on July 25, 2017, issued a number of recommendations for administrative reforms.1 One of the proposed reforms was the creation of an "Emphasis List" to target sites that would benefit from the Administrator's immediate attention or action. The Emphasis List was to include sites from every EPA Region and identify an upcoming milestone event worthy of special attention from the Administrator. When the List was first proposed, EPA issued a detailed set of questions and answers about the reasons for, and workings of, the List.2 The initial Emphasis List of 21 sites was issued on December 8, 2017,3 and has been revised three times since then. Sites are placed on the List when important upcoming milestone activities are anticipated, such as a potential settlement, and are taken off the List when those activities are completed. A site may be placed on the List, removed from the List and again added to the List as previous milestones are completed and new ones contemplated. Through this process, the List comprised only 16 sites as of November 2018. The Agency's development of the Emphasis List, and its ongoing effort to add and delete sites from the List, pose some new questions that deserve new answers from the Agency.

Is the "Emphasis List" an unlawful exercise of agency authority?

The NCP regulations provide the administrative law underpinnings for action at sites on the NPL. 42 U.S.C. §9605(a)(8)(A). It is fair to wonder if the new Emphasis List represents a formal change to the NCP and its requirements for managing cleanups. If so, the Emphasis List probably could not be used by EPA unless it were formally proposed in a notice-and-comment rulemaking. The NCP regulations do not contemplate a revolving list of sites that are given priority treatment based on what could be accomplished in the near term. Even if it is good policy to use the List to allocate administrative resources where fast results can be accomplished, the question remains whether this change in the program can be implemented without amending the existing NCP regulations. The types of actions proposed for sites on the Emphasis List—settlements with potentially responsible parties, completion of site investigations, conducting removal measures and starting remedial actions—are actions that EPA could take at any site on the NPL. In that sense, the placement of a site on the list does not require any new Agency authority. Nevertheless, making some sites more worthy of Agency action than others looks like a Super NPL is being created based on the exercise of the unreviewable discretion of EPA. A party aggrieved by one of the milestone activities taken (or possibly not taken) at an Emphasis List site could consider challenging the action as being inconsistent with the NCP regulations and the Administrative Procedure Act's requirements for notice-and-comment rulemaking. That might be one way around CERCLA's section 113(h), 42 U.S.C. § 9613(b), ban on pre-enforcement review of EPA's action at NPL sites. A successful challenge on these legal grounds could invalidate the List but might leave the Agency free to make the same decisions without the publicity attendant to the placement or removal of sites on the List.

Legality aside, is the use of the Emphasis List an effective tool for expediting cleanups?

From a policy perspective, there are compelling reasons for devoting scarce administrative resources to cleanup actions that will achieve the most cost-effective, immediate and significant reductions in environmental and public health risks. If the Agency maintains accurate timelines for critical path decisions at individual sites, then the placement of a site on the Emphasis List may present a valuable opportunity for reducing delays in cleanups. Then again, there is no apparent reason not to track the same timelines for all NPL sites regardless of whether or not a site is getting special "emphasis." Is the Emphasis List then an Agency determination that some sites are, for whatever reason, more important than others? Or is it simply a way to make sure that opportunities for effective action are not missed or delayed?

Is the Emphasis List a way to claim public relations credit for actions that would have been taken anyway?

The Superfund program justifiably has been criticized for the delay and expense associated with the cleanup of contaminated sites. Persistent criticism can take its toll on an agency at times in need of credit when it does good work. The Emphasis List then can provide tangible proof, as sites move on and off the List, of a mission being accomplished. But, if the actions that are to be taken at sites on the List are actions that likely would have been taken anyway, there is little legitimate reason to tout the List, and no real environmental risk reduction achieved, by the listing and delisting decisions. The fact that no additional funds are being appropriated for sites on the Emphasis List has led some observers to question whether the List actually would help expedite cleanups. The standard for measuring success, over time, then should be whether the actions taken either would not have been taken or taken much later at greater environmental cost than would be the case if the listing decision had not been made.

Will a listing have any additional value to parties already involved in a site?

The cost of delayed cleanups and delayed Agency actions is a burden imposed on companies that have been targeted as potentially responsible parties. An announcement that their site has been placed on the Emphasis List could be a welcome opportunity for expedited action and reduced transaction costs. It also could be a signal that the Agency will exercise more discretion and flexibility in its remedial decisions and thereby reduce the cost, lessen occasions for dispute and expedite the pace of site cleanups. Placement of a site on the Emphasis List may mean some enhanced Agency and public scrutiny that could be a welcome trade-off for an enhanced opportunity to make progress toward a more cost-effective cleanup.

One last question, among many others that could be asked: Will a delisting mean a return to the same old, slow, costly cleanup process?

With the Emphasis List just a year old and with sites being removed from the List only in recent months, the sample size is too small to know the answer to this question. There may be a natural tendency for the Agency to "take a breather" once the focus of enhanced Agency and public attention is off. One also needs to factor in the reasons why the site was listed in the first place and delisted later. If it was to expedite a certain regulatory action that was successfully completed, then there is just cause to classify the process as a success, assuming that there was more than public relations credit being sought by the Agency.

* * *

Setting aside questions about the policy justifications for the Emphasis List, there are good reasons for tracking sites where important decisions are imminent, and attention warranted from those who run the program and the Agency. Perhaps the Emphasis List is not needed for that, and might even detract from the need to apply the same sort of scrutiny to the rest of the active NPL sites. Prioritizing cleanup decisions to better suit the original goals of the program is a worthwhile goal. Whether the Emphasis List will help do that, and whether it will be a permanent fixture of the program, remains to be seen.

Footnotes

1 Superfund Task Force Recommendations, July 25, 2017.

2 Questions and Answers for the Superfund Sites Targeted for Immediate Intense Action.

3 The first update was issued on April 16, 2018, to remove two sites and add three new ones The list was revised on August 3, 2018, to remove eight sites. Then, on November 20, 2018, one site was removed and three were added.

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