US EPA Issues Final Report of the Superfund Task Force

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US EPA Issues Final Report of the Superfund Task Force

By: Craig A. Cox, CPG

Published in October 2019 Focus on the Environment Newsletter

In September, US EPA (EPA) issued a final report on the recommendations developed in response to the EPA Administrator Andrew Wheeler’s May 22, 2017 request on how the Agency could restructure the cleanup process, realign incentives to promote expeditious cleanups, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups of sites, and promote revitalization of properties across the country.  The EPA Superfund Task Force, which consisted of hundreds of personnel from EPA, the Justice Department, and the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), identified more than forty recommendations under five overarching goals. 

The five goals include:

  • Expediting Cleanup and Remediation
  • Re-Invigorating Responsible Party Cleanup and Reuse
  • Encouraging Private Investment
  • Promoting Redevelopment and Community Revitalization
  • Engaging Partners and Stakeholders

I found the report to be generally hard to follow and more self-serving than illustrative.  For instance, the performance measures listed on the last page of the Executive Summary are more a collection of vague, open-ended statements rather than specific metrics.  In the text of the report, EPA identifies specific strategies and recommendations for each goal.  Provided below is a list of these strategies and associated recommendations by goal.

Goal 1 – Expediting Cleanup and Remediation

Strategy 1 – Evaluate and Accelerate National Priorities List Sites to Completion

  • Oversee Administrator’s Emphasis List of Superfund Sites
  • Prioritize and take action to expeditiously effectuate control over any site where risk of human exposure is not fully controlled
  • Develop list of potential NPL sites to target for completion and develop recommendations for tracking and reporting progress
  • Focus resources on maximizing deletions/partial deletions, including review of policy and tracking eligible sites

Strategy 2 – Promote the Application of Adaptive Management at Complex Sites and Expedite Cleanup Through Use of Early/Interim RODs and Removal Actions

  • Promote the application of adaptive management at complex sites

Strategy 3 – Clarify Policies/Guidance to Expedite Remediation

  • To better promote national consistency and review, update the authority for approval of the remedy selection while considering the retained authority of the Administrator
  • Clarify priorities for RI/FS resources and encourage performing interim/early actions during the RI/FS process to address immediate risks
  • Provide clarification to the principles for Superfund groundwater restoration

Strategy 4 – Use Best Management Practices, Systematic Planning, Remedy Optimization, and Access to Expert Technical Resources to Expedite Remediation

  • Promote use of third-party optimization throughout the remediation process and focus optimization on complex sites or sites of significant public interest
  • Reinforce focused scoping which closely targets the specific areas for remediation and identify and use best management practices in the Remedial Investigation/Feasibility Study stage
  • Utilize state-of-the-art technologies to expedite cleanup
  • Develop a technical support team and tools to inform RPMs regarding available resources to assist with best management practice applications, including scoping and targeted technical reviews
  • Review all third-party contracting procedures, large EPA-approved contractors, and contracts to determine appropriate use parameters and qualification methods for EPA contracting

Goal 2 – Re-Invigorating Responsible Party Cleanup and Reuse

Strategy 1 – Encourage and Facilitate Responsible Parties’ Expeditious and Thorough Cleanup of Sites to Affect Re-Use More Quickly

  • Recommend consideration and use of early response actions at Superfund sites, particularly sediment sites, while comprehensive negotiations are underway for the entire cleanup
  • Identify opportunities to utilize various federal and state authorities to conduct response actions that are consistent with CERCLA and the National Contingency Plan
  • Maximize the use of special accounts to facilitate site cleanup and/or redevelopment
  • Accelerating settlements with federal PRPs
  • Provide reduced oversight incentives to cooperative, high-performing prps, and make full use of enforcement tools as disincentives for protracted negotiations, or slow performance under existing cleanup agreements
  • Adjust financial assurance required under enforcement documents to reduce cooperating PRP’s financial burden while ensuring resources are available to complete cleanups
  • Reinforce the Federal Facility Agreement informal and formal dispute timelines

Strategy 2 – Create Oversight Efficiencies for PRP-Lead Cleanups

  • Expand cleanup capacity by designating one agency lead for each project in order to reduce overlap and duplication
  • Identify opportunities to engage independent third parties to oversee certain aspects of PRP-lead cleanups

Strategy 3 – Promote Redevelopment/Reuse of Sites by Encouraging PRPs to Invest in Reuse Outcomes

  • Facilitate site redevelopment during cleanup by encouraging PRPs to fully integrate and implement reuse opportunities into investigations and cleanups of NPL sites

Goal 3 – Encouraging Private Investment

Strategy 1 – Use Alternative and Non-Traditional Approaches for Financing Site Cleanups

  • Explore environmental liability transfer (ELT) approaches and other risk management tools at PRP cleanups

Strategy 2 – Streamline the Process for Comfort Letters and Settlement Agreements with Third Parties

  • Ensure timely use of site-specific tools when needed and appropriate to address liability concerns at contaminated sites
  • Create and maintain an OECA information repository to provide access to enforcement information and tools to support third-party cleanup and reuse.

Strategy 3 – Optimize Tools and Realign Incentives to Encourage Third-Party Investment

  • Update EPA’s position on the use of site-specific agreements with third parties at NPL sites
  • Revise EPA’s model agreements to create more opportunities for settlement with third parties interested in cleaning up and reusing NPL sites
  • Identify tools for third parties interested in investment or other opportunities supporting the cleanup or reuse of NPL sites
  • Provide greater “comfort” in comfort/status letters
  • Revise or develop new enforcement guidance to support the cleanup and reuse of contaminated sites
  • Revise federal facility enforcement guidance

Strategy 4 – Address Liability Concerns of Local Governments

  • Develop new local government enforcement guidance to address concerns raised by the landowner liability provisions potentially applicable to local governments
  • Develop a model comfort/status letter and other tools to address the liability concerns and other barriers unique to local governments

Goal 4 – Promoting Redevelopment and Community Revitalization

Strategy 1 – Facilitate Site Redevelopment and Support Ongoing Information Sharing

  • Focus redevelopment efforts on 20 NPL sites with redevelopment potential and identify 20 sites with greatest potential reuse
  • Publicize site specific information to promote community revitalization
  • Build capacity of EPA and its stakeholders on the broad community and economic development context for site remediation and redevelopment
  • Engage superfund communities in cleanup and redevelopment
  • Recognize and replicate local site redevelopment successes

Strategy 2 – Utilize Reuse Planning to Lay the Foundation and Set Expectations for Site Redevelopment

  • Support community visioning, revitalization, and redevelopment of Superfund sites
  • Engage and facilitate public/private partnerships to share information and resources and work toward advancing and promoting the revitalization of the site

Goal 5 – Engaging Partners and Stakeholders

Strategy 1 – Key Stakeholder Engagement

  • Develop a robust communications strategy to identify and target key stakeholders
  • For federal facility sites, collaborate with other federal agencies to solicit their views on how EPA can better engage federal agencies
  • Use a federal advisory committee to work with a broad array of stakeholders to identify barriers and opportunities related to cleanup and reuse of Superfund sites

In closing, if you are involved in Superfund you should be aware that this document is out there.  The list of sites on the Administrator’s Emphasis List is interesting, but not too informative.  I suggest you read the executive summary and try to sort out the table of metrics.  At that point, you will likely conclude that you have invested enough time in it already and move on to better things.  I doubt this document will effectuate any real change in how EPA approaches its portfolio of Superfund sites.

Craig Cox is a principal and co-founder of Cox-Colvin & Associates, Inc., and holds degrees in geology and mineralogy from the Ohio State University and hydrogeology from the Colorado School of Mines. Mr. Cox has over 30 years of experience managing large environmental project implemented under CERCLA and state voluntary action programs. Mr. Cox is the inventor of the Vapor Pin® and has developed a variety of software products including Data Inspector, an internet-enabled environmental database application. Mr. Cox is a Certified Professional Geologist (CPG) with AIPG and is a Certified Professional (CP) under Ohio EPA's Voluntary Action Program.