Posted on April 4, 2011 by David Rosenblatt
A few months ago, a significant anniversary passed without much fanfare: the 30th anniversary of the passage of CERCLA. Interestingly, 30 years has another meaning today in the Superfund world as many of the CERCLA sites have passed through the active cleanup phase and into the long-term operation and maintenance phase. When practitioners began working with the Superfund statute in the early days, the question of when would a Superfund cleanup “end” was considered. Many of us thought that 30 years of monitoring at a site after completion of the active remediation stage was a reasonable expectation. This expectation, while not expressly stated in CERCLA or the National Contingency Plan, was based on the approach used in RCRA closures which generally require 30 years of post-closure monitoring.
But 30 years of working with the Superfund statute has made it clear that 30 years is not a meaningful benchmark for long-term O&M, at least not to EPA. The critical documents in the Superfund process, the Records of Decision, the Consent Decrees and the EPA Guidance documents usually do not specify when long-term operation and maintenance may cease. As a result, because groundwater contamination at many Superfund sites has proven to be so difficult to remediate to drinking water or some other agreed upon standards, many PRP Groups are faced with the possibility that their Superfund site may require perpetual monitoring. In addition, since the Consent Decrees require a five year review process by EPA for all active sites, the possibility of enhanced monitoring or additional remediation always looms on the horizon.
The uncertainties in knowing when a Superfund site will “end” creates many challenges for performing parties and their counsel. Among those difficulties:
- Continual disclosure on company financials and SEC filings;
- Time and expense of keeping PRP Groups functioning over many years and paying for government internal and contracted oversight costs;
- Lack of certainty or predictability in budgeting long-term costs for Superfund liabilities; and
- Loss of institutional memory and familiarity at sites where, over time, companies and their divisions are sold and counsel, consultants and EPA personnel move on and/or retire.
These risks and costs, of course, are spared for de minimis parties and other PRPs who structure their settlements as cash-outs either to EPA or to other PRPs. For those performing parties left behind, however, the ability to determine a reasonable end point to the commitment they entered into years, if not decades earlier, often remains a largely unresolved and perhaps undeterminable question under present regulation and practice.
Many of us are working in PRP Groups where active remediation has been completed yet the groundwater remains substantially above the Performance Standards. In many of these sites, the groundwater plume is controlled and presents no risk to human and other environmental receptors yet reasonable predictions about when the monitoring program and the Superfund “machine” can be turned off remains a mystery. With the 30th anniversary of Superfund now passed, it is time for more discussion and coordination between EPA and the PRP community about how and when Superfund sites, especially those with long-term groundwater monitoring requirements, may “end.”