• Superfund Alert: The Latest Proposed Changes to CERCLA
  • April 6, 2018 | Author: Ria Rana
  • Law Firm: Goldberg Segalla LLP - New York Office
  • On February 12, 2018, President Trump’s Administration published its Infrastructure Plan (Plan) aimed at fixing America’s infrastructure. Within the Plan are several proposed changes to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also known as Superfund).

    The first proposed change is to expand funding eligibility for revitalization projects under CERCLA. Currently, CERCLA Sections 101(39)(B) and 101(41)(C) only authorize grants or revolving loans for brownfields — properties that contain hazardous substances, pollutants, or contaminants that complicate expansion, redevelopment, or reuse. The Plan recommends expanding eligibility for such funding to properties listed on the National Priorities List (NPL), a list of specific waste sites subject to national remediation. The proposal would allow non-liable third parties to obtain a low interest loan or grant to perform removals, remedial design, remedial action, and long-term stewardship.
    The Plan’s second proposed change clarifies and expands the liability exemption for states and municipalities. The Plan proposes that state and local governments that involuntarily acquire contaminated property by virtue of their sovereign function should be exempt from liability. Doing so would encourage these entities to become full partners in the cleanup and reuse of Superfund sites. Affording such relief is, however, dependent on a finding that the entity did not contribute to the contamination and otherwise meets the requirements of a “bona fide prospective purchaser” under Section 101(40)(C)-(G).
    The third proposed change would expand the EPA’s authority to enter into administrative settlement agreements with bona fide prospective purchasers and other third parties who have a valid statutory defense or qualify for an exemption. The change would also allow the EPA to administratively settle with a potentially responsible party (PRP) willing to perform remedial action. Currently, CERCLA requires that when EPA enters into a settlement for a remedial action with a PRP, the settlement must be approved by the Attorney General and entered into the United States District Court as a consent decree. The proposed change would expedite the cleanup and reuse of Superfund sites.
    The fourth and final proposed change advocates for the removal of restrictions that hinder the EPA’s ability to incorporate infrastructure projects into the remediation of a site, particularly restrictions pertaining to coordinating funding of such activities.
    Unrelated to the Plan, another proposed change to CERCLA comes via a bill introduced by U.S. Senator Deb Fischer (R-Neb.) and currently has 33 senate co-sponsors. The proposed Fair Agricultural Reporting Method (FARM) Act seeks to exempt reporting air emissions from animal waste at a farm.
    The end goal of these proposed changes is to streamline the process of remediation and redevelopment for Superfund sites and cut regulations deemed unduly burdensome and costly. As to the Plan, the Administration estimates that the changes will help generate at least $1.5 trillion in overall public and private investment in the next ten years.