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CERCLA Task Force Issues Recommendations Aimed at Improving the Superfund Program

September 27, 2017

On August 2, 2017, EPA Administrator Scott Pruitt announced recommendations aimed at accelerating action on Superfund mega-sites, specifically expediting cleanups and promoting redevelopment and community revitalization.  The recommendations are contained in a report developed over the space of a month by a task force appointed by Pruitt. Four major themes permeate the recommendations identified for quick action.

First, the report recommends developing a list of sites that are not showing sufficient progress toward cleanup/completion and then accelerating the progress on those sites.  More than likely, there will be a “top 10 list” that would be targeted for quick success stories.  In addition, a top 20 list would be created listing the best redevelopment opportunities.  Pruitt has already asked the regional EPA offices to start compiling information that may be used to develop these lists.  For some sites, enhanced attention from the EPA may provide an opportunity for greater efficiency and moving more quickly toward completion, where for other sites, it may provide unwanted attention from the EPA.

Second, the recommendations seem to promote the increased use of adaptive management strategies for major sites.  Adaptive management strategies involve structured processes of strong decision making in the face of uncertainty, with an aim of reducing that uncertainty over time via system monitoring.  In this context, the EPA would want to use these management strategies at the front end of mega-site cleanups, especially when focusing on early action remedies to quickly reduce the risks at a site.  This seems to fit well with the EPA’s emphasis on efficient cleanups but would not solve some of the problems associated with the long-term effects of cleaning up major sites.

Third, the report’s recommendations indicate that the EPA may be willing to consider using oversight cost reduction or forgiveness as an incentive for meeting deadlines, conducting early action activities, or other good policy objectives.  In addition, the recommendations reference the possibility of using third party oversight and/or single reviewer designations to decrease costs.  The EPA is targeting fiscal year 2018 for moving forward on these specific initiatives.

Finally, the report incorporates a private party redeveloper emphasis, seeking to stimulate community redevelopment and site re-use.  There potentially may be funding and improved liability protections for redevelopment sites.  If these recommendations are put into place, this could lead to significant improvements in the availability of pre purchaser comfort letters that would represent a significant improvement in protections for such property purchasers and developers.

Most of the EPA’s recommendations are scheduled for implementation within 30 to 180 days, so the fast time frames are considered to be the most significant element of the report.  A majority of these recommendations require establishing working groups, reaching out to PRPs (potentially responsible parties) for feedback on site redevelopment, preparing policy memos, or coordinating with the Justice Department to create model documents to speed up settlement.  The most immediate impact, however, would likely be felt at sites selected for the “top 10 list” or those selected as pilots for new policies.

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