Closing Superfund Sites Under Florida's Risk-Based Corrective Action: The Time is Now!

• Author: DeMeo, Ralph A.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), was signed into law by President Jimmy Carter as one of his last acts in office. (1) The law, enacted in response to public outrage at man-made environmental disasters, such as Love Canal in upstate New York, addressed contaminated sites that posed a serious threat to public health and the environment.

Nearly four decades after CERCLA's enactment, better tools, information, and options exist to successfully address problem sites. Technology has advanced, assessment and remedial strategies have improved, and our understanding of the fate and transport of chemicals in the environment has sharpened. Regulators are better positioned to abandon the well-intended but antiquated one-size-fits-all numeric criteria in favor of more efficient and equally protective standards, which consider other important factors. These new methodologies can incorporate site-specific conditions, such as institutional controls and risk assessments. As a result, greater emphasis is placed on assessing and minimizing actual risk to human health and the environment, and concurrently place properties back into beneficial reuse faster. Florida law reflects these improvements. One important Florida example is the use of Risk-Based Corrective Action (RBCA) as an Applicable or Relevant and Appropriate Requirement (ARAR), discussed more fully below.

The goal of CERCLA, and environmental law and policy in general, is the protection of public health and the environment. CERCLA expressly recognizes the essential role of ARARs in the site assessment and cleanup process, with the intent that the most stringent requirements are met prior to regulatory closure approval. (2) However, determining which standard is more protective is not always straightforward. It is challenging to compare the stringency of a pre-established numerical federal standard with a hybrid one, like Florida's RBCA. This may result in an erroneous default to the federal standard, or whichever standard appears to have the lowest numerical concentrations. Unfortunately, this approach can lead to delayed cleanup, unnecessary costs, and extraordinarily long site closure timeframes, without a concomitant benefit to public health or the environment. Florida's RBCA is universally recognized to have an inherent ability to incorporate other more precise and valuable site-specific information in the decision-making process, with no reduction in human health or environmental protection. This recognition provides a long overdue sufficient legal and public policy justification to allow regulatory closure under CERCLA.

Background

CERCLA is in many ways the most complex and far-reaching of all federal and state environmental laws. In addition to CERCLA's substantive and procedural requirements, CERCLA included the establishment of a trust fund. This resulted in the synonymous but somewhat inaccurate and interchangeable use of the term "Superfund" to refer to CERCLA. The Superfund trust fund, administered by the U.S. Environmental Protection Agency (EPA), provides temporary emergency funding for assessment and cleanup activities at orphaned sites, or those with recalcitrant potentially responsible parties (PRPs). (3) Historically, the trust fund was funded by three dedicated taxes (petroleum, chemical feedstock, and corporate income), as well as interest on the trust. However, the law's taxing authority expired in 1995, and successive administrations declined to renew the authority. (4) As of 2015, approximately $1.26 billion in federal general revenue was allocated annually to the Superfund program. (5) As of 2018, EPA lists 1,343 total Superfund sites, including Florida's 94 sites, in all phases of rehabilitation on the national priorities list (NPL). (6) EPA is generally the lead agency responsible for the management of Superfund sites under CERCLA. However, states including Florida, often have an active role in establishment of remedial goals and objectives, and, in some cases, state agencies have been delegated management responsibility by EPA. In Florida, that agency is the Florida Department of Environmental Protection (FDEP).

Historically, Superfund site deletion from the NPL takes an extraordinarily long time. These sites plod through the program in a step-by-step process that can take several decades. Some Florida Superfund sites are in their second decade of cleanup since listing on the NPL, with no real end in sight. The 2017 Superfund Task Force was organized to find obstacles to completion or closure. It is...