The Yanomami Model for Superfund

Posted on June 16, 2017 by Rick Glick

In a recent editorial, the Wall Street Journal celebrates the new priorities being set by Scott Pruitt’s EPA.  Mr. Pruitt, in the Journal’s opinion, is properly elevating the “more immediate” problem of Superfund sites over the “religion” of climate change.  Sadly, it seems, the misguided and naïve Obama Administration preferred “symbolic” climate measures over the more prosaic but urgent cleanup of Superfund sites. 

This of course is a false choice, since the country—and planet—must confront a wide array of pressing environmental problems.  Implementation of the Clean Power Plan doesn’t have much bearing on Superfund administration; both climate change and environmental cleanups need attention.  But aside from the Journal’s gratuitous trolling of climate policy, they are correct that Superfund is a program in need of reform.

One of the examples cited in the editorial is the Portland Harbor Superfund site, comprised of about 10 miles of contaminated river sediment.  Prior to listing, Oregon DEQ’s approach was to control potential ongoing contributions from upland sites, coordinate with the Army Corps of Engineers to remove the most serious pockets of contamination in the course of routine maintenance dredging, and then let natural riverine processes bury the rest.  There is a lot of science to support the notion that this approach would be plenty protective of human health and the environment.

Alas, EPA Region 10 added Portland Harbor to the National Priority List in 2000.  Seventeen years and over $100 million later, Region 10 issued its Record of Decision, but then hit the pause button because much of the data supporting the ROD had become stale.  A new round of sampling is soon to begin.  In the meantime, scores of PRPs are locked into the process with no way out until costs are fixed.  EPA currently pegs the cost at $1.05 billion, a figure no one but Region 10 believes to be close to the actual cost.

EPA’s selected remedy relies much more heavily on contaminant removal and capping, and less on natural processes, than the remedy proposed by the PRPs.  Unfortunately, EPA’s remedy does not reflect the enormous body of data that indicate such an aggressive approach is not necessary to protect people or the environment.  A prime driver for EPA is that it assumes a much higher rate of resident fish consumption by humans than do the PRPs’ scientists.  The region’s iconic salmon species migrate through the Portland Harbor without bioaccumulating toxins in the sediments.  Never has so much money been deployed to produce so little environmental benefit.

In his book In Trouble Again, the English gonzo explorer Redmond O’Hanlon describes his adventures trekking the Amazon rainforest and his encounter with the Yanomami people.  O’Hanlon witnessed the Yanomami blowing a hallucinogen called yoppo up each other’s noses and decided to give it a try.  What could possibly go wrong?  It turned out that the drug induced excruciating pain and that the only high he realized was relief when the effects wore off. 

As administered, Superfund is much like taking yoppo.  The process is so time consuming, expensive and uncertain that its chief benefit is to induce PRPs to enter state voluntary cleanup programs to avoid a federal Superfund listing.  Many more sites have been remediated, and I would bet at much lower cost, through such state programs than ever will through the formal Superfund process.

Superfund Reform, Part 2: Giving Credit Where Credit Is Due

Posted on May 30, 2017 by Seth Jaffe

Last week, I offered less than fulsome praise of EPA Administrator Pruitt’s announcement that he was taking control of remedial decisions for big Superfund sites.  Now, he’s followed up with a memorandum announcing establishment of a task force to look at ways to reform Superfund implementation.  While he’s still plainly wrong in putting Superfund “at the center of the agency’s core mission,” I have to confess that I think he otherwise has pretty much hit a home run with the latest memorandum.

Let’s start with the basics.  Superfund is a mess.  It’s one of the most poorly written statutes in Congressional history, and Superfund cleanups take way too long, are way too expensive, and fail to deliver bang for the buck in either risk reduction or productive reuse.

In a perfect world, Superfund would be amended to privatize cleanups and put cost-effective risk-based cleanups at the center of the program.  However, Scott Pruitt cannot unilaterally amend Superfund.  Heck, he may not realize it, but even Donald Trump cannot unilaterally amend Superfund.

Given this reality, Pruitt’s memorandum identifies all of the appropriate goals for meaningful administrative reform.  They include:

  • a focus on identifying best practices within regional Superfund programs, reducing the amount of time between identification of contamination at a site and determination that a site is ready for reuse

  • overhaul and streamline the process used to develop, issue or enter into prospective purchaser agreements, bona fide prospective purchaser status, comfort letters, ready-for-reuse determinations

  • Streamline and improve the remedy development and selection process, particularly at sites with contaminated sediment, including to ensure that risk-management principles are considered in the selection of remedies

  • Reduce the administrative and overhead costs and burdens borne by parties remediating contaminated sites, including a reexamination of the level of agency oversight necessary.

The last is my personal favorite.

I somehow expect I’m not going to be praising this administration on a regular basis, but I can still acknowledge when they get something right.  Let’s just hope that the task force is for real and comes up with a set of meaningful administrative improvements.

Fingers crossed.