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May 19, 2017

EPA Signals Shift in Superfund Decision-Making

Environmental Law360, Product Liability Law360

On May 9, U.S. Environmental Protection Agency Administrator Scott Pruitt issued a memorandum withdrawing authority from EPA regional offices to make final decisions on Comprehensive Environmental Response, Compensation, and Liability Act remedies with an estimated cost exceeding $50 million 1 According to the delegation memo, decisions on remedies exceeding $50 million can now be made only by the EPA administrator or the deputy administrator, but may not be further delegated to the assistant administrator for Office of Land and Emergency Management (OLEM) or to the regional administrators.

The delegation memo signals a potentially significant shift within the EPA to centralize decision-making on major Superfund remedies. Moreover, as discussed below, the Trump administration's apparent effort to centralize decision-making is an important development in the broader context of recent controversies related to large Superfund sites.

Recent Controversies at Superfund Sites

In the last year, the EPA has issued several controversial records of decision at large, complex sites including, for example, Portland Harbor in Oregon and the Lower Passaic River in New Jersey, with estimated costs at each site of over $1 billion. Concerns about the cost of remedies and the time needed to develop and implement cleanups at the larger sites has prompted growing congressional concern.

For example, in 2015, the U.S. Senate Committee on Appropriations for the Department of the Interior, Environment, and Related Agencies noted the EPA's lack of progress on the larger sediment sites and directed the EPA to report on the extent to which the agency is following its own guidance in cleaning up these sites.2 In 2016, a subcommittee of the U.S. House of Representatives Committee on Energy and Commerce held an oversight hearing on CERCLA where witnesses noted, among other issues, the slow progress and the high costs of site cleanups.3 Late in 2016, the U.S. Government Accountability Office issued a report that made formal findings on some procedural issues and also noted broad concerns among stakeholders with the EPA's development and implementation of major site remedies.4 These concerns prompted the EPA, in the closing days of the Obama administration, to issue new guidance reiterating the agency's commitment to following the EPA's own guidance in using the best technical and management practices to achieve expedited cleanups at the major sites.5

The GAO report and the House CERCLA oversight hearing identified a broad range of policy concerns left unaddressed by the last administration, including inconsistent application of the principles of adaptive management prescribed in agency guidance, a preference for costly excavation remedies even where such remedies are not cost-effective, and establishment of cleanup levels unrelated to actual risk reduction.6 Additionally, the GAO noted concerns that the EPA risk assessments are needlessly conservative, driving costly remedies and delays in developing and implementing remedies.7

Returning CERCLA Decision-Making to the Administrator

The delegation memo establishes that the administrator "reserves the authority to select the remedy in the Record of Decision when the estimated cost of the remedy exceeds $50 million."8 This authority may be delegated to the deputy administrator "and no further."9 According to the delegation memo, "[a]ll other authorities are delegated to the assistant administrator for the Office of Land and Emergency Management and regional administrators."10 The delegation memo reaffirms that other prevailing limitations continue to apply to decisions within the authority of the assistant administrator for OLEM or to regional administrators, such as that any decision is subject to approved funding levels and that regional administrators only exercise their authority at sites within their regions.

The memorandum transmitting the delegation memo explains that the revised delegation is intended to "facilitate the more rapid remediation and revitalization of contaminated sites and to promote accountability and consistency in remedy selection" and to "involve the Administrator and the Administrator's office in this process more directly."11 While the transmittal memo does not identify specific policy objectives underlying the revision of delegations, it does assert the goal of "enhancing consistency in remedy selection across states and the regions."12

Implications of Pruitt's Delegation

The administrator's decision to withdraw delegation from the regions for major remedies could have several short- and long-term impacts. As an initial matter, it may prompt closer scrutiny of the major remedies and a greater ability to ensure consistent application of agency guidance. For example, critics of the EPA have noted that the EPA does not consistently follow its own sediment guidance13, and often does not implement the recommendations of its own in-house technical peer-review bodies: the Contaminated Sediments Technical Advisory Group (CSTAG) and the National Remedy Review Board (NRRB).14 In light of the vast scope and daunting timelines of the larger sediment remedies and the growing demand for expedited progress, the EPA may consider the centralization of remedy decisions to be an effective first step in applying agency guidance and best practices more consistently among sites.

It is not entirely clear how the withdrawal of delegations will impact remedy decisions in practice. EPA stakeholdersincluding potentially responsible partiesmay now have a greater opportunity to communicate directly with EPA headquarters on large site remedies. On the one hand, many stakeholders may hope that headquarters will provide a sympathetic forum for concerns about cost, cleanup standards, risk assessments and schedule delays. On the other hand, establishing an additional and more robust review of remedies in Washington could also add further delays in major site decisions.

Finally, the delegation memo only addresses prospective remedies. It does not impact remedy decisions already made, such as those for Portland Harbor and the Lower Passaic River. The delegation memo also does not address ongoing oversight or implementation of remedies, which remain the responsibility of the regions. It also does not address critical EPA decisions in Superfund other than remedy decisions, such as decisions to place new sites on the National Priorities List in the first instance. And the administrator's withdrawal of delegation has no impact on non-Superfund programs.

In the longer run, centralization may only be a partial step, at best, to addressing the structural challenges facing the CERCLA program identified by Congress and the GAO. Centralization of decisions in EPA headquarters will not, by itself, necessarily result in a different outcome on key decisions. Furthermore, the EPA still employs regional staff to conduct the day-to-day work developing and overseeing remedies. Nonetheless, centralizing large remedy decisions in Washington enables a focused review of decisions for individual sites and could help ensure that remedy decisions are consistent with national policy and with legal requirements. This effort by the Trump administration could heighten the visibility of numerous issues and challenges facing large, complex Superfund sites, such as how best to balance cost and risk reduction, the apparent preference for excavation over risk reduction (arguably contrary to pre-existing Superfund guidance documents), and the time and cost of completing remedies.

The delegation memo reflects an important realization that the EPA needs to confront the challenges facing large-site remediation in the CERCLA program. How the EPA chooses to address those challenges remains an open question.

Jeremy Karpatkin is an associate at Arnold & Porter Kaye Scholer LLP in Washington, D.C. He previously worked at the U.S. Department of Energy in a variety of capacities involving the remediation of the DOE nuclear weapons complex.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

  1. Memorandum from E. Scott Pruitt, EPA Administrator, to Assistant Administrator, Office of Land and Emergency Management, and Regional Administrators, Delegation of Authority 14-2 Responses (May 9, 2017) (hereinafter "delegation memo").

  2. S. Rep. No. 114-70, at 58.

  3. See, e.g., Oversight of CERCLA Implementation: Hearing Before the Subcomm. on Env't and the Econ. of the H. Comm. On Energy and Commerce, 114th Cong. 2-4 (2016) (statement of Steven C. Nadeau, Partner, Honigman Miller Schwartz and Cohn LLP) (hereinafter "Nadeau Testimony").

  4. Gov't Accountability Office, GAO-16-777, Superfund Sediment Sites: EPA Considers Risk Management Principles But Could Clarify Certain Procedures 29-35 (2016) (hereinafter "GAO Report")

  5. Memorandum from Mathy Stanislaus, Assistant Administrator, OLEM, to Regional Administrators, Regions I-X, Remediating Contaminated Sediment Sites — Clarification of Several Key Remedial Investigation/Feasibility Study and Risk Management Recommendations, and Updated Contaminated Sediment Technical Advisory Group Operating Procedures, OLEM Directive 9200.1-130 (Jan. 9, 2017)

  6. See GAO Report at 29-35; Nadeau Testimony at 4-12.

  7. See GAO report at 34-35.

  8. Delegation Memo at 2(a).

  9. Id.

  10. Id. at 2(b).

  11. Memorandum from E. Scott Pruitt, EPA Administrator, to Assistant Administrator, Office of Land and Emergency Management, and Regional Administrators, Revisions to CERCLA Delegations of Authority 14-2 Responses and 14-21A Consultations, Determinations, Reviews and Selection of Remedial Actions at Federal Facilities (May 9, 2017), at 1 (hereinafter "Transmittal Memo").

  12. Id.

  13. U.S. EPA, Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (2005) (hereinafter "Sediment Guidance")

  14. See, e.g., Nadeau Testimony at 4-8 (failure to follow Sediment Guidance); and 8-9 (inadequate consultation with CSTAG and NRRB).

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