Since taking over as EPA Administrator, Scott Pruitt has made it clear that he intends to focus on—and overhaul—the Superfund program. Calling the program “at the center of the Agency’s core mission”, Pruitt has put in place a couple of initiatives in an effort to streamline and improve the Superfund process and cleanups. In addition, industry groups have weighed in with their own ideas for how to improve the program. These changes and recommendations are summarized below.
Delegation of Authority for Superfund Remedies Estimated at $50 Million or More
On May 9, 2017, Administrator Pruitt issued a memorandum delegating authority for approval of Superfund remedies estimated to cost $50 million or more to the Administrator. The stated purpose of this delegation is to create efficiency and consistency for large, expensive Superfund sites. EPA employees are directed to get the Administrator’s office involved in these sites as early as possible and throughout the remedy evaluation process to ensure efficiency.
While the purpose of the delegation is efficiency, questions remain about how the delegation will work in practice. Oftentimes, a cost estimate for remediation is not developed until well into the Superfund process, so it is unclear how early the Administrator’s office will get involved on these sites. In addition, what will happen to sites with a remedy estimated at more than $50 million that were approved before the memo took effect? We can likely expect potentially responsible parties to seek the Administrator’s input on these remedies.
Task Force for Superfund Restructuring
On May 22, 2017, Administrator Pruitt convened a task force to provide recommendations on how to restructure and improve the Superfund cleanup process. The task force is directed to consider the following issues:
- Streamlining and improving protections such as bona fide prospective purchaser status, “comfort letters”, and prospective purchaser agreements.
- Developing non-traditional approaches for financing cleanups.
- Reducing EPA administrative/oversight costs.
- Streamlining and improving remedy selection at sediment sites.
- Improve stakeholder involvement (state and local governments, public-private partnerships).
The task force’s recommendations are due by June 21, 2017. It remains to be seen what the task force will conclude, but given the issues to be addressed, we can expect some recommendations that could benefit potentially responsible parties at these sites.
Industry Requests for Regulatory Reform
A number of industry groups recently offered EPA their own suggestions for how to improve the Superfund program. Some of the suggestions include:
- Relaxation of conservative exposure scenarios in risk assessment.
- Consideration of future land use in developing remedial alternatives.
- Reformation of agency oversight cost policy to incorporate a concept of reasonableness.
- Limitations on EPA review time for documents.
- Adoption of a third-party licensed site professional program.
Given the focus on the Superfund program and the overall goal of streamlining the process, it is certainly possible that some of these ideas could be championed by this Administration.