EPA Signals Shift In Superfund Decision-Making

Originally published by Environmental Law360 & Product Liability Law360

On May 9, U.S. Environmental Protection Agency Administrator Scott Pruitt issued a memorandum withdrawing authority from EPA regional offices to make final decisions on Comprehensive Environmental Response, Compensation, and Liability Act remedies with an estimated cost exceeding $50 million 1 According to the delegation memo, decisions on remedies exceeding $50 million can now be made only by the EPA administrator or the deputy administrator, but may not be further delegated to the assistant administrator for Office of Land and Emergency Management (OLEM) or to the regional administrators.

The delegation memo signals a potentially significant shift within the EPA to centralize decision-making on major Superfund remedies. Moreover, as discussed below, the Trump administration's apparent effort to centralize decision-making is an important development in the broader context of recent controversies related to large Superfund sites.

Recent Controversies at Superfund Sites

In the last year, the EPA has issued several controversial records of decision at large, complex sites including, for example, Portland Harbor in Oregon and the Lower Passaic River in New Jersey, with estimated costs at each site of over $1 billion. Concerns about the cost of remedies and the time needed to develop and implement cleanups at the larger sites has prompted growing congressional concern.

For example, in 2015, the U.S. Senate Committee on Appropriations for the Department of the Interior, Environment, and Related Agencies noted the EPA's lack of progress on the larger sediment sites and directed the EPA to report on the extent to which the agency is following its own guidance in cleaning up these sites.2 In 2016, a subcommittee of the U.S. House of Representatives Committee on Energy and Commerce held an oversight hearing on CERCLA where witnesses noted, among other issues, the slow progress and the high costs of site cleanups.3 Late in 2016, the U.S. Government Accountability Office issued a report that made formal findings on some procedural issues and also noted broad concerns among stakeholders with the EPA's development and implementation of major site remedies.4 These concerns prompted the EPA, in the closing days of the Obama administration, to issue new guidance reiterating the agency's commitment to following the EPA's own guidance in using the best technical and management practices...