Orignal Post by Steffen Williams:
Clearly something needs to be done to address the sheer number of Superfund sites scattered across the U.S. However, I was pretty underwhelmed with the fix actions identified in the EPA’s 2017 Superfund Task Force (TF) Report. Some of my specific thoughts on a few various identified solutions are listed below.
An “Administrator’s Top 10 List”: Here the TF recommended highlighting ten sites which have been stuck on the list for years to be emphasized to the EPA administrator each month. The intent is for this to galvanize action on these sites. While this is well and good, my concern is that this could put undue pressure on some sites and encourage corner cutting in order to remove the site from the list. This would obviously cause greater problems further on down the line.
Designating an Agency Lead for each site: This recommendation likely would help reduce conflicts between different government agencies and improve clarity, especially for those sites that require the coordination of multiple government agencies.
Improving Financial Assurance for PRPs: In general I think this is one of the best ways forward. The government is clearly already overburdened with sites it must manage, so every attempt must be made to incentivize PRPs to agree to conduct cleanup themselves. Ideally they will do this as quickly as is feasible, but currently it seems like they often have no incentive to complete the work quickly, especially for expensive cleanup actions. Providing incremental reimbursement upon completion of specific phases may help speed cleanup by PRPs.
Overall, most of the proposed actions are very bureaucratic in nature which makes sense for a program steeped so heavily in legalese, administrative processes, and government oversight. None of the actions identified in this report are outright bad ideas, but I do not think they solve the underlying problem. In my mind, more money is needed to work through these sites. The best way to add money to the fund would be through reinstating the taxes that once existed on the petroleum and chemical industries.
As sites languish on this list, real Americans are being hurt by the inaction. One such site near Butte, Montana has been on the Superfund site list since 1983. The 300 square mile site was polluted via a copper smelting site in the area that operated for nearly 100 years. In the years since the site was identified under CERCLA, the Atlantic Richfield Company has spent more than $450 to remove contaminants from the area, and cleanup is still incomplete. Their goal is to reduce contaminant levels to below 250 ppm. Local residents are unhappy with the progress the company is making and seek to provide their own plan on how the cleanup should go forward which goes beyond the plan which ARC has agreed to with the EPA. They are suing to force ARC to fully restore soil quality of the area to its natural state. According to CERCLA, lawsuits are normally not allowed to be filed at this point in the cleanup process, however the Montana Supreme Court ruled that a suit filed by citizens of the area could go forward. The U.S. Supreme Court heard arguments as to whether or not this should be allowed last December. Thus far, no ruling has been announced. However, as this battle continues on in court, residents continue to risk potential exposure to toxic chemicals left there decades ago.
Environmental Protection Agency. “Superfund Task Force Report.” Accessed April 14, 2020. https://www.epa.gov/sites/production/files/2017-07/documents/superfund_task_force_report.pdf (Links to an external site.)
Liptak, Adam. “Supreme Court Considers Fight Over Superfund Site in Montana.” The New York Times. Accessed April 14, 2020. https://www.nytimes.com/2019/12/03/us/supreme-court-montana-superfund.html
I agree with the strategy to designate an agency lead for each site because it improves clarity, and I also see it as potential for tribes to shine. I wonder how the EPA uses the Memoranda of Understanding with federal agencies, states and tribes to identify lead agencies for each site and roles and responsibilities for each. Perhaps, tribes may be the ones leading the charge after a proper evaluation has been done. Tribes may have a strong ancestral relationship to the land that cannot be matched by federal agencies and states. Since the purpose is to identify situations or phases of cleanup for which certain agencies should have primary responsibility, often cases the tribal residents of an area may be the logical group to have long-term stewardship of sites. Tribes may also have a role in public and private dialogues with key stakeholders to strengthen long-term partnerships for clean-up and reuse of sites because they may be able to share the history of the specific place better than anyone else. Tribes can also be involved in contributing to a forum for evaluating the quality of the report with having the document’s apparent purpose and values truly at heart.
The report does acknowledge the issue of bureaucracy. It mentions in the current situation, PRPs fear interacting with third parties to facilitate reuse because of the technical, financial and legal burdens that arise when that outside entity wants to build on a contaminated site. There is intention to collaborate with lenders so that the EPA can select standard language in PPA’s that encourages financing. Also, in the settlement documents, the EPA aims to clearly establish milestones and exactly how a PRP’s oversight costs are compromised. The report also mentioned the EPA is looking to address liability issues that keep local governments from considering reuse. The EPA also suggests to “develop a model request for prior written approval of site-specific letters and agreements to streamline and expedite regional/headquarters/DOJ approval process”. The key there is streamlining the approval process. The report recommends doing it in another way by implementing innovative liability clarification and settlement approaches. It also mentioned reinvigorate the PPA tracking system to monitor requests and even go so far to evaluate how long it takes to respond and identify specific delays in the process.
I totally agree incentivizing PRPs is one of the best ways forward. I was impressed the report aims to start a National Workgroup to advocate for PRPs in identifying situations which a reduction in oversight costs would be appropriate. The workgroup was also created to take the financial load off of a single private party by brainstorming ways independent third parties can perform fixed tasks. The report also recognized regional staff are inconsistent with actually identifying milestones achieved. I imagine PRPs would be more willing to contribute if the awarding entity was organized. The workgroup is also set up to bring in contractors who have successfully engaged and states to talk about their relationships with private partnerships. The report also recommends “creative uses of insurance, annuities, indemnification and other tools for third parties interested in buying/selling the risk of cleanup”. Evidently, the report is discussing measures to incentivize private investment by assisting in working around the bureaucracy. My favorite element of the workgroup is that it recommends private parties do the long-term monitoring. This is good because private parties are incentivized by long term financial gain with potential reuse opportunity while EPA monitoring is incentivized by getting a site off the NPL list. So, the EPA is more likely to cut corners compared to the private parties who need a site to be completely cleaned up so their next business venture is crafted on a blank canvas. In some instances, the land’s reuse function may require additional cleanup beyond the amount needed to ensure the health of its citizens.