January 11, 2011

Accelerating Contaminated Site Cleanups

EPA Seeks to Integrate Approaches

by Heather Austin

On December 9, 2010, the U.S. Environmental Protection Agency (EPA) issued a draft plan to accelerate the cleanup of contaminated sites. The intent of the draft plan is to minimize process and focus on productive results. Although much of the plan focuses on Superfund sites, it includes strategies to deal with sites arising in multiple circumstances and addressed under various authorities, including federal facilities and sites regulated under the Resource Conservation and Recovery Act (RCRA).

The draft plan is being issued 30 years after the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) was signed into law as a strict liability statute that imposes joint and several liability for investigation and cleanup of contaminated sites. Congress originally enacted CERCLA to deal with the imminent threats of environmentally distressed and often abandoned sites such as Love Canal in New York.

The Superfund program has been criticized because of the large number of sites that remain contaminated and the inefficiencies and costs associated with the program. The original law proposed that 400 sites be included on the Superfund list. Now more than 1,200 sites are on the National Priorities List (NPL).

Integrated Cleanup Initiative

Recognizing that the cleanup of hazardous sites has changed over the past 30 years, starting in 2010, EPA launched its Integrated Cleanup Initiative (ICI) to identify and implement improvements to the Agency’s land cleanup programs. According to EPA, the intent of the plan is to put contaminated sites back into productive use while protecting human health and the environment. As part of the Initiative, EPA identified the following goals:

* Identify and implement opportunities to integrate and leverage the Agency’s land cleanup authorities to accelerate cleanups.
* Address a greater number of contaminated sites.
* Put contaminated sites back into productive use while protecting human health and the environment by 2012.
* Provide transparency that allows affected communities to access the information needed to understand the progress of cleanup activities at local sites and to hold accountable those responsible for cleanup.

2011 Priorities

Starting in 2011, EPA will begin reporting on a new measure of Superfund NPL site cleanup progress, called “remedial action project completions.” The new benchmark will take into account specific components of a cleanup rather than waiting for the entire cleanup of a site, which can take decades. The remedial action projects are defined to address discrete problems, such as specific areas or types of contamination at a site or emerging technological challenges, such as vapor intrusion.

EPA says that though it will continue to report on the status of a sitewide cleanup, the new tool will allow communities to have more real-time information on cleanup activities and progress. EPA anticipates that the new benchmarking will hold the Agency more accountable for ensuring the progress of site cleanups.

Accelerated Cleanups—Draft Plan

As a component of the ICI, the draft plan was issued by EPA’s Office of Solid Waste and Emergency Response and Office of Enforcement and Compliance Assurance. The plan is designed to revise how EPA measures and reports remediation progress at hazardous waste sites.

Various strategies are outlined for bringing cleanups to completion under the Superfund, Brownfield, RCRA, Underground Storage Tank (UST), and enforcement action programs. Some strategies outlined include:

* Better assessment of more than 500 government-owned sites. The status of the cleanup of these sites is unknown and, in some cases, has not been reviewed for 15 years. EPA has, therefore, established a work group to review and assess such sites.
* Improving effectiveness of the CERCLA listing process. Before being added to the NPL, EPA goes through a complicated review process. EPA states that it has a backlog of about 3,000 sites awaiting an assessment decision or final disposition, and each year approximately 200 new sites are added. Additionally, EPA will review the hazard ranking system, which needs to incorporate new exposure technologies. Vapor intrusion will be included in this assessment.
* Linking Brownfield and Superfund cleanup programs so that targeted sites can take advantage of voluntary cleanup programs. Many state programs prohibit Superfund sites from taking advantage of voluntary cleanup programs. This strategy would create liaisons to link the different programs to return sites to productive use and could include an expansion of technical and financial assistance opportunities. EPA plans to set up regional work groups to assess opportunities to link both programs.
* Streamlining and improving the national remedy selection process to be more nationally consistent and cost effective. Part of this strategy includes assessment of the National Remedy Review Board and the Contaminated Sediments Technical Advisory Group. Additionally, EPA is working to improve the timeliness, transparency, and quality of remedy decision documents at Superfund sites.
* Requiring that responsible parties be more accountable for meeting settlement and cleanup deadlines. EPA has threatened that noncompliance with Superfund obligations will result in additional obligations for responsible parties, and it is possible that the proposed changes will result in increased enforcement or penalties issued by EPA. EPA recently has issued a negotiation policy that emphasizes promptly concluding negotiations with potentially responsible parties (PRPs) and also more aggressively using enforcement tools for parties not meeting deadlines. Additionally, EPA will review and track compliance with Superfund enforcement instruments, including consent decrees, administrative orders on consent, unilateral administrative orders, and federal facility agreements.
* Involving PRPs in removal actions so response costs will be incurred by responsible parties rather than the Fund. The Fund could then be used for sites where there are no viable parties who could perform the cleanup.
* Implementing effective use of enforcement authorities at RCRA corrective action facilities to ensure timely and protective cleanups. EPA’s goal is that 95 percent of the 3,747 sites requiring RCRA corrective action be remediated by 2020. Toward that end, as part of the ICI, EPA has also issued a national enforcement strategy for RCRA corrective action that recognizes the value of creative approaches to corrective action. In more and more cases, EPA is entering into consent orders with responsible parties. These orders focus on results rather than deliverables and allow parties to complete corrective action faster and with less expense.

Institutional Controls

EPA will also review and improve the effectiveness of institutional controls (ICs). ICs are nonengineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of a response action.

Examples of ICs include easements, deed restrictions, covenants, zoning and building codes, and local groundwater use restrictions. ICs can also include enforcement and permit tools with IC components, such as administrative orders, permits, and consent decrees. ICs are typically put into use for contaminated sites in the Superfund, RCRA, UST, Brownfield, and federal facility programs.

In its strategy on ICs, EPA references its recently issued draft, Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites (http://www.epa.gov/superfund/policy/ic/guide/index.htm).

Keeping ICs at contaminated sites up to date with changes to land use, community needs, laws, the condition and location of the contaminated materials, and responsible parties is emphasized in the draft guidance. The guidance seeks to clarify the roles of the governmental representatives and private parties involved in the IC process. In particular, the guidance encourages early involvement of responsible parties and community stakeholders to define which parties are responsible for maintaining an IC throughout all phases of the IC.

The IC document highlights the need for full life-cycle planning for any IC remedy selection and also the need to ensure that an IC can be effectively implemented and funded. Included in the guidance are specific maintenance recommendations, including periodic monitoring, inspection, and reporting to ensure the goals and purposes of an IC continue to be met. The guidance suggests that there will be increased enforcement against parties that do not comply with the terms of an IC.

Impact of Draft Plan

As a result of the issuance of the plan for accelerated cleanups, it is possible that many sites that have not been on the Agency’s radar may now be subject to regulatory scrutiny.

EPA is also threatening to increase enforcement efforts against parties not complying with various cleanup obligations. Additionally, some of the proposed improvements may PRPs at Superfund sites or responsible parties at RCRA sites to minimize deliverables and paperwork, resolve discrete issues, focus on results, take advantage of new technology, and achieve closure more quickly than in the past. On the other hand, funding and full life-cycle planning will need to be carefully considered as part of any remedial action incorporating an IC. By coordinating different regulatory programs, it may also be possible for sites listed on the NPL to take advantage of state voluntary cleanup programs. Finally, additional sites may be subject to cleanup obligations as part of the revised identification process.

EPA will accept comments on the draft plan until January 10, 2011.

The draft plan is available at www.blr.com/enviro_download. Type in 122121 when prompted.

Heather Austin is of counsel in the Cleveland office of the law firm Thompson Hine LLP (http://www.thompsonhine.com); contact: Heather.Austin@ThompsonHine.com; 216-566-5927.