Superfund is broken. “[W]e all know it doesn’t work — the Superfund has been a disaster,” said President Clinton. President Bush described the need for a program overhaul. President Obama acknowledged the 37 year old federal program’s flaws while seeking more funding.
And now under President Trump there is action to clean up the Superfund mess.
There is no dispute that the 1980 Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund, has failed to clean up more than a small fraction of the nation’s worst hazardous waste sites.
And while those in the know can debate why Superfund has not in the past worked despite Billions of dollars in spending, most agree that remedies should encourage faster cleanups, prioritize risks to human health, reduce litigation among potentially responsible parties, reduce spending on administrative program compliance, encourage competitive bidding on cleanups, and the like.
To that end, in a major step toward restoring Superfund cleanup to EPA’s core mission, EPA Administrator Scott Pruitt is prioritizing Superfund cleanup and streamlining the approval process for sites with remedies estimated to cost $50 million or more. The May 9, 2017 delegation of authority memo is here.
Concomitantly, the EPA Administrator is reviewing the recommendations of a task force announced on May 22 about how the agency can realign incentives for the involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites, and promote the revitalization of properties across the country. The task force, chaired by Albert Kelly, provided detailed actions that the agency can take to:
Focus on reducing the amount of time between identification of contamination at a site and determination that a site is ready for reuse, encouraging private investment at sites during and after cleanup and realigning incentives of all involved parties to foster faster cleanups.
Overhaul and streamline the process used to enter into prospective purchaser agreements, bona fide prospective purchaser status, comfort letters, ready for reuse determinations and other administrative tools under the agency’s existing authorities used to incentivize private investment at sites.
Streamline and improve the remedy selection, particularly at sites with contaminated sediment.
Utilize alternative and non-traditional approaches for financing cleanups, as well as improvements to the management and use of Superfund special accounts.
Improve the agency’s interactions with key stakeholders under the Superfund program, particularly other federal agency potentially responsible parties, and expand the role that tribal, state and local governments, and public-private partnerships play in the Superfund program.
Moreover, a negative externality of the Superfund law is that nearly every nonresidential real estate transaction in the U.S. now has a Phase I Environmental Site Assessment completed, at a cost of thousands of dollars and little true environmental efficacy.
One final idea is an expansion of state Brownfield programs that today generally cannot include Superfund sites.
Critics will focus wrongly on agency’s role in the ideological Armageddon over climate change and on the EPA 2018 budget that proposes to reduce federal spending on Superfund from $1.1 Billion to $762 Million. Those dollars are not going to cleanup the over 1,100 sites on the cleanup priority list.
However, with a renewed sense of urgency restoring Superfund cleanup to EPA’s core mission and fresh ideas, the 37 year old federal program can effectively return formerly contaminated sites to the private sector for their reuse and “save both mankind and our current way of life.”
