Is the Superfund Taskforce an EPA Superhero or Just a Bunch of Smoke and Mirrors?

Posted on August 15, 2018 by Heidi Friedman

Is the Pruitt/Wheeler Superfund Taskforce the Clark Kent of Environmental Law, hidden cape and all, producing more effective and efficient cleanups and conquering the nasty villains of TCE and Vinyl Chloride to protect the human race?  Pruitt made his initial request to his superhero squad to prioritize Superfund on March 22, 2017, and the Task Force recommendations came out a few months later identifying 21 priority sites (which by the way were priorities well before that list came out because they were on the NPL) along with many other objectives.  On the Taskforce recommendations' first anniversary, EPA recently gave itself the traditional 1-year anniversary gift of paper by publishing an almost 100-page report detailing all of its Superfund accomplishments and identifying what the environmental villains of the world can expect in Year 2.   Although there is not enough space here to dissect the so-called “accomplishments,” the list feels a lot like that “To Do” list I sometimes generate for tasks I am about to complete, just so I can have the pleasure of drawing a line through it to say I finished something. 

Although many of those officials implementing the task force goals for EPA are superheroes in many ways, the main problem is that the Superfund process is much less than “super,” especially since the reach of the program is expanding not contracting.  For example, we are constantly dealing with new and emerging contaminants.  Closed sites are being reopened to look for 1,4-Dioxane, PFOS-PFOAs and other new or emerging contaminants, many of which are ubiquitous.  Then we have vapor intrusion to further complicate the investigation and pathway exposure evaluation process, even more so now that VI contributes to the hazard ranking system used by  EPA to score a site for listing on the NPL.  So as we make the scoring, listing, investigation and remediation processes broader and more complex, can we really argue that there is now more success in cleaning up these sites, converting them to beneficial use and delisting them?

I don’t think so, at least not yet.  To really move things along, industry and EPA should be focusing on identifying and testing more efficient technologies so that all media can be remediated in reasonable time frames.  How about working toward collaboration among stakeholders to develop reasonable, risk-based cleanup levels based on realistic exposures at sites rather than blindly insisting that MCLs apply for restoration even if no one has or will ever drink the groundwater?  And let’s talk about promoting voluntary actions instead of negotiating orders for every piece of work.  Ramming down model order language and picking insanely expensive remedies overnight to just check the boxes does not generate results or build relationships between industry and EPA to support the program.

Instead, these actions may lead to more PRPs contesting EPA’s decisions as arbitrary and capricious, resulting in further delay and inefficiency.  In fact, we are already seeing erosion of the historical deference that has been given to EPA’s decision making process.  See, e.g., Genuine Parts Co. v. EPA.   Industry and EPA need to form a partnership that focuses on real risk to human health and the environment if there is really going to be a change in the Superfund program that will benefit our communities.  If not, we will remain in the same less than super program, attempting to clean up the same sites for the next several decades.   Or maybe Wonder Woman will swoop in and save the day??? Fingers crossed!

Musings on Starting a New Superfund Case – Hope springs eternal?

Posted on January 25, 2018 by David Rosenblatt

As lawyers, many of us enjoy the “rush” of starting a new case.  A new matter can be a welcome fresh tablet, providing us with the opportunity to use our skills and experience in creative and interesting ways to further our client’s interests.

But -- for those of us who have fought for clients on the front lines of EPA’s Superfund program over the years -- maybe not so much.  As Superfund practioners, we must deal with a cumbersome, almost 40-year-old law and an agency whose approach is dictated by a raft of standard operating procedures within an entrenched bureaucracy, decades-old guidance documents and forms, and a seemingly endless review and comment process.

To add to the challenge, clients have changed over the past 40 years, even if the Superfund law and its implementation have not. Today’s clients demand quicker, more practical, and cost-effective solutions in resolving their legal problems, without years of negotiations and endless administrative boxes to check off along the way in assessing and cleaning up sites.

There are other paradigms.  Many states have operated as laboratories of innovation in site cleanup through privatization and reduction of bureaucratic obstacles. In July 2017, EPA issued a Superfund Task Force report recommending numerous reforms to streamline the Superfund process and expedite cleanup.

Yet despite these advances on the state level -- and a supposedly business-friendly administration now in Washington and at EPA -- Superfund, well, remains Superfund. 

So here I embark on yet another Superfund Special Notice negotiation in early 2018.  I am armed with fresh ideas to bring to the table and an EPA Task Force report in my pocket, just hoping I will discover that a few of these new approaches will somehow have resonance with my EPA counterparts and that Superfund 2018 is somehow different from Superfund 1998.

Anyone want to take any bets on what I will find?