News
May 23, 2017

Headquarters Takes Charge: EPA's Recent Revision to Delegations and Formation of Task Force May Signal Renewed Interest in Superfund Reform

Advisory

INTRODUCTION

In the last few weeks the Environmental Protection Agency (EPA or Agency) has signaled a renewed interest in reforming and revitalizing the Superfund program. On May 9, EPA Administrator Scott Pruitt issued a memorandum withdrawing authority from EPA regional offices to make final decisions on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 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. On May 22, Pruitt announced the formation of a new EPA Task Force to make recommendations on "how the agency can restructure the cleanup process, realign incentives of all involved parties to remediate sites, encourage private investment in cleanups and sites and promote revitalization of properties across the country."2 The Task Force is to be chaired by Albert Kelly, a senior advisor to the Administrator.3

The Delegation Memo and the formation of the Task Force indicate a potentially significant shift within EPA to centralize decisionmaking on major Superfund remedies and embrace a wider-ranging CERCLA reform agenda. Moreover, as discussed below, the Trump Administration's apparent effort to centralize decisionmaking and the formation of the Task Force are important developments in the broader context of recent controversies related to large Superfund sites.

RECENT CONTROVERSIES AT SUPERFUND SITES

In the last year, 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 more than $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 US Senate Committee on Appropriations for the Department of the Interior, Environment, and Related Agencies noted EPA's lack of progress on the larger sediment sites and directed EPA to report on the extent to which the Agency is following its own guidance in cleaning up these sites.4

In 2016, a subcommittee of the US 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.5 Late in 2016, the US Government Accountability Office (GAO) issued a report that made formal findings on some procedural issues and also noted broad concerns among stakeholders with EPA's development and implementation of major site remedies.6 These concerns prompted EPA, in the closing days of the Obama Administration, to issue new guidance reiterating the Agency's commitment to following EPA's own guidance in using the best technical and management practices to achieve expedited cleanups at the major sites.7

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.8Additionally, GAO noted concerns that EPA risk assessments are needlessly conservative, driving costly remedies and delays in developing and implementing remedies.9

RETURNING CERCLA DECISIONMAKING 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."10 This authority may be delegated to the Deputy Administrator "and no further."11 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."12 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."13 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."14

FORMATION OF THE TASK FORCE

The Task Force is mandated to look broadly at a wide range of issues facing the Superfund program, including improving the efficiency of the remedial process to reduce the time needed for cleanup and reuse; encouraging private sector redevelopment of sites; streamlining the remedy development and selection process "particularly at sites with contaminated sediment"; promoting greater consistency in remedies among sites; more effective use of the EPA's in-house peer-review bodies—the Contaminated Sediments Technical Advisory Group (CSTAG) and the National Remedy Review Board (NRRB); use of "alternative and non-traditional approaches" to finance site remediation; and improving collaboration among stakeholders, local governments, and other federal agencies.15

The Task Force consists of representatives from the Office of Land and Emergency Management, the Office of Enforcement and Compliance Assurance, the Office of General Counsel, EPA Region 3, and other offices. The Task Force will make recommendations to the Administrator within 30 days.

IMPLICATIONS OF ADMINISTRATOR PRUITT'S ACTIONS

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 EPA have noted that EPA does not consistently follow its own sediment guidance,16 and often does not implement the recommendations of CSTAG and NRRB.17 In light of the vast scope and daunting timelines of the larger sediment remedies and the growing demand for expedited progress, 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. The formation of the Task Force closely on the heels of the change in delegation suggests that the change in Delegation is intended in part to address these issues.

It is not entirely clear how the withdrawal of delegations will impact remedy decisions in practice. EPA stakeholders—including potentially responsible parties—may 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 Superfunds other than remedy decisions, such as decisions to place new sites on the National Priorities List in the first instance. In addition, the Administrator's withdrawal of delegation has no impact on non-Superfund programs. However, these and other issues appear to be squarely within the scope of the Task Force, indicating that the Delegation Memo constitutes only a first step in a broader initiative to address the deeper policy challenges facing the CERCLA program.

In the longer run, while centralization may only be a partial step, at best, to addressing the structural challenges facing the CERCLA program identified by Congress and the GAO, EPA seems poised to propose a broader set of proposals in the near future. Centralization of decisions in EPA headquarters will not, by itself, necessarily result in a different outcome on key decisions. Furthermore, 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. Indeed, these are some of the precise issues on which the Task Force is preparing recommendations to the Administrator.

The Delegation Memo reflects an important realization that EPA needs to confront the challenges facing large site remediation in the CERCLA program. The Task Force indicates that EPA's development of an agenda to address these and other issues is underway. How, specifically, EPA chooses to address those challenges remains an open question.

  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. Memorandum from E. Scott Pruitt, EPA Administrator, Prioritizing the Superfund Program (May 22, 2017).

  3. Id.

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

  5. 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").

  6. US 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").

  7. 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).

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

  9. See GAO report at 34-35.

  10. Delegation Memo at 2(a).

  11. Id.

  12. Id. at 2(b).

  13. 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")

  14. Id.

  15. Prioritizing the Superfund Program, supra, at 2.

  16. US EPA, CONTAMINATED SEDIMENT REMEDIATION GUIDANCE FOR HAZARDOUS WASTE SITES (2005) (hereinafter "Sediment Guidance")

  17. 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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