• Cleaning Up the Cleanup Process? Administration’s Power Shift Increases Uncertainty to Superfund
  • June 5, 2017 | Authors: David A. Baay; Paul C. Freeman; Susan G. Lafferty; David M. McCullough; Jim L. Silliman; Ronald W. Zdrojeski
  • Law Firms: Eversheds Sutherland (US) LLP - Houston Office; Eversheds Sutherland (US) LLP - New York Office; Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - Houston Office; Eversheds Sutherland (US) LLP - New York Office
  • In May, the Environmental Protection Agency (EPA) took several steps that are likely to refocus the Agency’s attention from greenhouse gas emission reductions and other novel uses of existing environmental laws to more traditional air, land and water cleanup efforts (generally housed within EPA’s program known as “Superfund”) that had been the hallmark of the Agency for decades. EPA Administrator Scott Pruitt effectively centralized authority for selecting remedies for the largest Superfund sites from the regional offices to his position of Administrator and established a task force that has one month to provide recommendations on streamlining the Superfund process and restoring Superfund to the “center of the agency’s core mission.”

    This power shift foreshadows a potential increase in Superfund enforcement and identification of potentially responsible parties, the streamlining of the Superfund cleanup process and enforcement efforts, reduced influence by regional administrators, and increased efforts by the Administration to shift cleanup funding from the federal budget to potentially responsible parties. While the new regulatory rollout involves much uncertainty, potentially responsible parties and other interested parties should take the lead on understanding their potential liability at contaminated sites as well as the new mechanisms of influencing the remedy selection process and engaging the Office of the Administrator.

    New Delegations
    In a collection of interagency memoranda issued in May, Administrator Pruitt detailed his revision of the delegations of authority related to the implementation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—namely the Superfund program—for both privately owned sites and federal facilities. CERCLA/Superfund requires the cleanup of contaminated sites by former and current owners and operators of those sites as well as generators and transporters of the hazardous substances that contaminated the sites. 

    The revised delegations (immediately effective) reserve to the Administrator the authority to select the Superfund remedy when the estimated cost of the remedy for the Superfund site exceeds $50 million. Further, by the express statement of the delegation, “[t]he Administrator may delegate this authority to the Deputy Administrator and no further.” 

    The memoranda also inform the regional administrators that, “[a]s part of effectuating this adjustment to the remedy selection process, [the Administrator] ask[s] that you involve the Administrator’s Office early on and throughout the process of developing and evaluating alternatives and remedy selection [particularly] for sites where you anticipate that the preferred remedial alternative and/or the remedy selected in the Record of Decision will be estimated to cost more than $50 million and thus will require the Administrator’s approval and signature on the Record of Decision.”

    Lastly, the Administrator also formed a task force to streamline and improve the efficiency of the Superfund program to accelerate cleanup efforts at contaminated sites. The task force will also provide recommendations to overhaul the system to provide for private cleanup, financing and investment at the contaminated sites. The task force has thirty days (until June 21, 2017) to provide “detailed recommendations” to the Administrator on these issues.

    Administration’s Intent
    The stated purposes of these delegations per the May 9 interagency memoranda include restoring focus on the Superfund and the EPA’s land and water cleanup efforts, facilitating the more-rapid remediation and revitalization of contaminated sites, promoting accountability and consistency in remedy selection, improving the remedy selection process, and involving the Administrator and the Administrator’s office in this process more directly.

    On May 10, the EPA issued a statement that, “[u]ntil recently, [the Superfund remediation authority] had been delegated many layers into the bureaucracy, resulting in confusion among stakeholders and delayed revitalization efforts. Putting the decision of how to clean up the sites directly into the hands of the Administrator will help revitalize contaminated sites faster.” 

    On May 17, Administrator Pruitt expressed additional insight during an interview with Fox & Friends noting that the current Administration believes it is unacceptable that 1,322 Superfund sites currently exist and that prior Administrations have been slow to develop cleanup solutions. He specifically cited the 27-year effort by the EPA to make a decision for the West Lake Landfill Superfund Site near St. Louis, Missouri.

    As an additional foresight, Administrator Pruitt appeared to reveal the Administration’s intent to pursue increased private funding of these programs by potentially responsible parties, stating “the great thing about this is we have private funding. There are people out there responsible for these sites to clean up. The moneys are there to do so. It’s not a matter of money, it’s a matter of leadership, and attitude, and management. And we need to do it much better.” This may be viewed as a potential offset to the 30% reduction, namely a reduction from approximately $1.1 billion to $760 million, by the Administration to the Superfund program. 

    Administrator Pruitt’s choice to lead EPA’s Office of Enforcement and Compliance Assurance, Susan Bodine, is currently Senator Jim Inhofe’s chief counsel on the Environment and Public Works Committee, and she also served at the EPA under the George W. Bush Administration as the Assistant Administrator of Office of Land and Emergency Management (OLEM—then known as the Office of Solid Waste and Emergency Response). 

    On May 22, Administrator Pruitt established the task force discussed above to streamline the Superfund program and refocus the EPA’s mission on cleanup efforts. 

    Possible Aftermath 
    The aftermath of the new remedy selection process is simply unclear. A few considerations of unknown consequences (for better or for worse) may include: 

    • The increased focus on cleaning up existing Superfund sites and identifying potentially responsible parties. 
    • The likely increase in efforts to hold potentially responsible parties responsible for funding the elected remedies. 
    • The reality of a drastically different mechanism of influencing the remedy selection process, including the roles of regional authorities at the direction of the Administrator’s memoranda, potentially responsible parties, the National Remedy Review Board, lobbyists, and other interested entities. 
    • The potential for reduced and/or more controlled remedial funding for the larger Superfund sites, or alternatively the purposeful selection by the Administrator of reduced cost remedies to reflect the Administration’s general temper on previous cleanup funding levels.
    • The inability of the Administrator, and his staff, to manage the volume and complexity of remedy selection for all large Superfund sites, potentially resulting in an overburdening and delay of the remedy selection process. This may become particularly true during the current period in which there are no politically appointed heads in place at any of EPA’s program offices (including the OLEM), and the Administrator has already consolidated decision-making power to a small group of his immediate staff. 
    • Conversely, the potential for more accelerated decision-making on the oldest, worst, and/or most political Superfund sites, which may historically have been complicated by the large number of influencing and conflicting parties (regional authorities, state and local governments, PRPs, other interested parties, etc.). 

    Going Forward 
    The Administration’s forthcoming activity under the new and centralized authority of the Administrator to select the remedy for the largest Superfund sites ought to be eagerly observed by all interested parties. Moreover, in light of these changes, parties should be intentional in their efforts to engage the Office of the Administrator—no matter what stage the Superfund is in—considering the new opportunity to guide the remedies even before the allocation process. Simply put, there is an entirely new process for management of the Superfund sites, and interested parties should begin steering the new decision-maker(s) effective immediately.