Fast & Furious: 21 Superfund Sediment Sites Targeted for “Immediate, Intense Action”

Posted on February 13, 2018 by Mark W. Schneider

On December 8, 2017, U.S. Environmental Protection Agency Administrator Scott Pruitt designated 21 Superfund sites for “immediate, intense action”. It’s an open question whether this effort will be more successful than many of EPA’s previous failed efforts to comply with its policies for contaminated sediment sites.

EPA has not met many of its prior commitments regarding sediment sites. On July 25, 2017, EPA’s Superfund Task Force identified 42 recommendations intended to, among other things, “evaluate and expedite NPL sites to completion”, “encourage and facilitate responsible parties’ expeditious and thorough clean-up of sites”, “create oversight efficiencies for PRP lead cleanups”, and “promote redevelopment/reuse of sites by encouraging PRPs to invest in reuse outcomes”. Since that time, some stakeholders have sought action from EPA based on the principles set forth in Task Force recommendations. In response, some have received commitments from EPA headquarters to seriously consider the requests, but the promises made by Headquarters often have not been turned into constructive action consistent with the recommendations.

Last year, EPA’s Office of the Land and Emergency Management (OLEM) issued Directive 9200.1.130 (Jan. 9, 2017), which identified 11 recommendations “based on current best practices for characterizing sediment sites, evaluating remedial alternatives, and selecting and implementing appropriate response actions”. OLEM directed the regions to, among other things, “develop risk reduction expectations that are achievable by the remedial action”. Unfortunately, just two days earlier, EPA issued a Record of Decision for the Portland Harbor Superfund Site that, in direct conflict with the OLEM Directive, established cleanup goals that are unachievable.

And these are just EPA’s recent promises. In 2002, EPA identified 11 principles in its Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites (OSWER Directive 9285.6-08). EPA announced that, among the key principles, it was important to “control sources early”, “ensure that sediment cleanup levels are clearly tied to risk management goals”, and “design remedies to minimize short-term risks while achieving long-term protections”. Similar principles were articulated in EPA’s 2005 Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (OSWER Directive 9355.0-85). Unfortunately, many of EPA’s decisions regarding sediment contamination sites have been made without consideration or application of these principles.

Will things be different for the 21 sites targeted by Administrator Pruitt for “immediate, intense action”? Unlike earlier pronouncements by the agency, which established program-wide recommendations to be implemented at all applicable sites, the list of actions for the 21 sites sometimes are specific and measurable, e.g., “initiate and complete negotiations to begin implementation of early actions” at the Anaconda Co. Smelter. It’s possible that, where the recommendations are specific and measurable, EPA will be able to take action to advance progress at a particular site. On the other hand, some of the actions proposed for other sites on the list are so general, e.g., “resolve issues expeditiously” at Allied Paper, Inc./Portage Creek/Kalamazoo River; “initiate actions to allow revitalization of the site” at Des Moines TCE (aka Dico Company, that it will be difficult to measure success.

Applying EPA Guidance to Improve Sediment Site Cleanups

Posted on March 9, 2017 by Mark W. Schneider

After years of struggling to implement prompt and cost-effective cleanups of sediment sites under the Superfund program, EPA has adopted a new set of tools.  This would be a good time for EPA to conduct an unbiased evaluation of whether recent Records of Decision (“ROD”) issued for sediment sites comply with the Office of the Land and Emergency Management (“OLEM”) Directive 9200.1-130 (Jan. 9, 2017), and direct the regions to revise RODs where necessary. 

For example, Region 10 recently issued its ROD for the Portland Harbor, a complex, multi-party sediment site, which seems out of sync with the new guidance.  In particular, Region 10’s use of unachievable cleanup levels for several contaminants of concern, unwarranted assumptions about current and future land uses in certain areas of the site, and failure to properly assess background levels in some instances conflict with the Directive’s recommendations.

In prior posts, I advocated for actions that could help the agency, potentially responsible parties, and the public achieve success in sediment cleanups.  In one post, I recommended that Congress eliminate CERCLA’s bar on pre-enforcement review.  In another, I advocated for revision of the dispute resolution provisions in the model Administrative Settlement Agreement and Order on Consent (“ASAOC”) to require the selection of a neutral third party to resolve disputes between EPA and ASAOC respondents. The rationale for these earlier recommendations applies equally to this recommendation; each of them is intended to require EPA compliance with its own guidance and sound legal and scientific principles.  

In its directive, OLEM identified 11 recommendations “based on current best practices for characterizing sediment sites, evaluating remedial alternatives, and selecting and implementing appropriate response actions.”  In particular, OLEM directed the regions to “develop risk reduction expectations that are achievable by the remedial action.”  Most sediment RODs fail to comply with this “best practice.”  For example, EPA has repeatedly issued RODs that establish action levels that cannot be met using any current or reasonably foreseeable remedial technology, leading to remedies that are unrealistic and unnecessarily costly.  This causes potentially responsible parties to resist, resulting in litigation or delays that perhaps could have been avoided. 

EPA should apply its directive.  It should systematically review each sediment ROD issued in the last several years, determine whether and to what extent the ROD deviates from the OLEM directive, and instruct regional personnel to revise RODs to comply with the directive.  This would require a second look at the RODs at, among other sites, the Lower Duwamish Waterway, Portland Harbor, and the lower 8 miles of the Passaic River.  Review of these and other RODs might lead to more realistic cleanup decisions, reductions of risks, where necessary, and implementation of feasible remedies.