Posted on May 17, 2017 by Seth Jaffe
Last week, EPA Administrator Pruitt issued a memorandum requiring that all Superfund remedies estimated to cost at least $50 million be approved by the Administrator. I’m not optimistic that this will cure, or even ameliorate, what ails CERCLA.
First, the memorandum gets off on precisely the wrong foot. Administrator Pruitt states that:
The Superfund program is a vital function of the U.S. Environmental Protection Agency, and under my administration, Superfund and the EPA’s land and water cleanup efforts will be restored to their rightful place at the center of the agency’s core mission.
What’s the problem with this statement? When EPA has actually looked at the top risks addressed by its programs, risks from Superfund sites never even make the list. Except for a limited set of circumstances, Superfund has been a colossal waste of money, resources, and focus for EPA. If Administrator Pruitt wants to reform Superfund, he shouldn’t be “placing it at the center of the agency’s core mission.” He should be further deemphasizing it.
Even if one assumes that this is just puffery, the new approach is flawed on the merits, for at least two reasons.
First, the problem with Superfund is that it’s the last bastion of command and control regulation. I understand that Pruitt may want to take the reins precisely to reduce the number of ukases issuing from the regional offices. However, the underlying problem will remain; he just thinks he’ll be providing kinder, gentler, command and control. Wouldn’t it be better to support fundamental reform of CERCLA, to create a privatized program, such as in Massachusetts and other states?
Finally, while PRPs might just wish Superfund went away, in the real world, PRPs just want certainty and timely decisions. Aside from a few cases where Pruitt might put the kibosh on expensive remedies that don’t eliminate real risks, I fear that in the majority of cases, all that will happen will be that cleanup decisions will be delayed; PRPs will pay more as a result of such delays.
This administration continues to give regulatory reform a bad name.