CHAPTER 9 EPA INITIATIVES TO EXPEDITE CERCLA CLEANUPS
Jurisdiction | United States |
(Apr 1997)
EPA INITIATIVES TO EXPEDITE CERCLA CLEANUPS
Environmental Protection Agency, Region VIII
Denver, Colorado
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INTRODUCTION
Since enactment of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "superfund") in 1980, EPA, along with many in the private sector, has struggled to develop, implement and refine what has been described as one of the most complex, comprehensive, multimedia environmental remediation programs and "draconian" liability schemes in history. Areas designated as "Superfund sites" and placed on the National Priorities List at the list's inception moved through the maze of technical and legal issues associated with CERCLA extremely slowly as EPA, contractors and potentially responsible parties ("PRPs") learned to collect and analyze massive amounts of technical data, to develop and evaluate complex remedial alternatives, and to have a meaningful dialogue with affected communities. Settlements of parties' potential liabilities at these sites have historically been thwarted or stalled in the face of great uncertainty as to the long-term effectiveness and estimated cost of remedies and the potential for further litigation with third parties. However, spurred by Congressional debate over Superfund reauthorization as well as a need to simply perform better, EPA has dramatically redefined the Superfund program over the last four years. That redefinition has taken a variety of forms. New federal legislation, new EPA policy and guidance, and a new EPA and industry focus on returning once-contaminated properties to safe, commercially viable locations for new business opportunities have minimized the stigma often associated with a Superfund site designation.
The remediation of NPL sites has accelerated markedly both nationally and regionally. Nationally, 423 NPL sites have been remediated and another 485 are in the construction phase. It is the Agency's goal to complete 900 NPL sites by the year 2000, thus removing two-thirds of the sites with the highest priority for cleanup. Regionally, we have completed the cleanup of 11 NPL sites since 1993, as compared to four in the prior twelve years. We have also mitigated threats at over 4,000 sites nationally and over 200 regionally using our removal program.
EPA's administrative reforms are not only speeding-up the remedial process, but are also ensuring that cleanups are more cost-effective, scientifically sound and consistent. The use of presumptive remedies and appropriate land use considerations in remedy selection reduces the need for evaluating unlikely risk and land use scenarios, thereby decreasing the time and cost involved in identifying and selecting remedial alternatives. EPA now recognizes that phased approaches to cleanup, contingent remedies and natural attenuation are critical elements of protective and yet cost-effective remedies in appropriate circumstances. Sixty percent of our cleanups now involve mixed remediation techniques and twenty-five percent include monitored natural attenuation of ground water contamination. In order to ensure that our remedies remain protective, consistent and cost-effective, EPA has created the National Remedy Review Board to provide a national overview on remedy decisions and performs technology and science updates. EPA has also revisited the remedy decisions made for certain, selected Superfund sites and has fine-tuned those remedies based on new information or technological advances. New remedies for these "old" sites has resulted in time and cost savings to both the Agency and the PRPs.
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EPA has learned the hard way that a decision process that alienates the people our cleanups are intended to protect results in constant revisiting of decisions, not quicker cleanups. Remedies that rely on compliance with institutional controls by the affected community are doomed to failure where those remedies are selected without appropriate community input up front. Having learned this lesson, EPA is developing consensus-based approaches to the development of remedial alternatives and holding forums where potentially responsible parties, landowners, residents, local and state governments and EPA meet regularly to explore options that are not only protective and cost-effective, but may also provide the community non-environmental benefits. For example, EPA has been holding frequent meetings with landowners, ASARCO, and city and state officials to develop alternatives for the Murray Smelter Superfund Site that will not only remedy threats to the environment and public health, but also revitalize a blighted area in the heart of Murray, Utah.
EPA's brownfields reforms reflect our belief that environmental cleanup is a building block, not a stumbling block, to economic and community redevelopment. The negotiation of a Voluntary Cleanup Program Memorandum of Agreement and deferral of responsibility to oversee the implementation of such cleanups to the State of Colorado has resulted in the redevelopment of numerous previously-contaminated properties across the State. Nationwide, EPA has negotiated similar voluntary cleanup program agreements with a total of 8 States. Likewise, the use of brownfields grants, comfort letters, and partial delistings have all ameliorated much of the stigma associated with designation as a Superfund site. Nationally, EPA has removed 30,000 sites from the database that identifies them as potential targets for EPA investigation or assessment. Prospective purchaser agreements, such as the one negotiated with Home Depot for the Denver Radium Site, have proven that environmental improvement can be accomplished hand-in-hand with commercial redevelopment. These mutual benefits allow the party undertaking the redevelopment project to make a profit, at the same time it is enhancing the economic and environmental status of the community.
Reforms directed at parties caught in Superfund's broad liability scheme has also been a major focus of the Agency's "administrative fixes." To avoid ensnaring those with minimal culpability for contamination at a Superfund site in CERLCA's liability net, EPA has implemented policies stating it will not bring an enforcement action against residential landowners, owners of land under which a plume of contaminated ground water has extended, municipal owners of property acquired involuntarily and lenders whose involvement at a site is limited to protecting their financial interest. Further, through the use of de micromis settlement agreements, EPA will protect those parties that have contributed a minuscule amount of waste to a site, thus reducing inappropriate third-party suits which vastly expand the transaction costs associated with cleanups. For those parties who have contributed slightly more than a minuscule amount of waste, but waste that is of no greater toxicity or is of lessor quantity than other parties involved at a site, EPA has expanded its use of de minimis agreements to ensure that these parties are settled out early and equitably.
While EPA continues to strongly believe that those who pollute should be held responsible, these parties ought to be able to resolve their liability fairly and efficiently. To that end, EPA has initiated policies on funding the orphan share, equitable issuance of unilateral administrative orders,
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the use of special accounts and the reduction of oversight in appropriate cases. In the last year alone, EPA has offered 57 million dollars in orphan share to parties performing the cleanups at Superfund sites. Region VIII has collected 90 million dollars and placed it in separate special accounts for cleanups at the site for which is was collected. Region VIII has earned 13 million dollars in interest on these monies and has allocated the interest proportionately to the respective sites. The interest earned helps Region VIII fund cleanup for the site for which the special account has created faster or it may help fund the orphan share.
The development and implementation of the administrative reforms has taught EPA that great flexibility is possible in the Superfund program. Through trial and feedback, we are making Superfund fairer and more efficient. EPA is committed to further administrative and regulatory improvements in the Superfund program in the years ahead. Any legislative reform must build upon the successes and lessons learned through the administrative reform efforts and provide solutions to the problems that cannot be addressed administratively or through regulatory change.
Region VIII has always been open to consideration of creative approaches to resolution of environmental problems. We hope that public debate and dialogue will allow us to constantly improve Superfund. Creative approaches, not extreme positions, will lead to the best resolutions for environmental and public health, potentially responsible parties and communities.
SUPERFUND ADMINISTRATIVE REFORMS
In June, 1993, EPA created an agency-wide task force to explore options for making administrative improvements to the Superfund program. As a result of the Superfund Administrative Task Force's efforts, EPA identified a series of general themes and objectives and specific tasks designed to make the Superfund program fairer and more efficient. The broad framework focused on: (a) enhancing enforcement fairness and reducing transaction costs; (b) enhancing cleanup effectiveness and consistency; (c) enhancing meaningful public involvement; and enhancing the State role in the Superfund process. Specific projects or tasks to be accomplished under this framework are detailed below.
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General Superfund Reform Themes
Increasing Enforcement Fairness and Reducing Transaction Costs
• Use of Non-binding Liability Allocations and Alternative Dispute Resolution
• Early de minimis Settlements
• Mixed-funding Pilots
•...
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