EPA Pushing for More Authority in Superfund Negotiations

By Sylvia Carignan

The EPA wants more authority over some legal aspects of the superfund cleanup process so sites can return to productive use sooner, but some attorneys don’t agree whether that would be effective.

The Environmental Protection Agency wants more control over superfund cleanup agreements and companies’ negotiations over the cleanup bill, according to regional staff and President Donald Trump’s Feb. 12 infrastructure proposal.

Superfund sites are among the most contaminated properties in the country. Currently, the EPA must get the U.S. attorney general and U.S. district court to sign off on the plan for the final cleanup phase for each site.

The Trump proposal claims that “limitation” slows the cleanup process.

The agency would benefit by using administrative actions for most cleanup projects and only pursuing the attorney general’s approval for cleanup plans at more complex sites, according to the EPA. Using administrative settlements as an additional tool would allow for remedial actions to begin sooner and cleanups be completed more quickly, the agency said in a statement provided to Bloomberg Environment.

To do that, Trump wants legislators to introduce a bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act.

Power of Attorney General

Consent decrees must have the attorney general’s approval and be entered into U.S. district court. Trump’s infrastructure plan suggests those steps “hinder the cleanup and reuse of superfund sites.”

Linda R. Shaw, partner at Knauf Shaw LLP in Rochester, N.Y., told Bloomberg Environment those steps haven’t had much of an impact.

“When EPA wants to enter into a consent order, the step of having it approved by the attorney general has never held up the process,” she said.

That step may take one or two weeks, and the attorney general usually agrees with what the EPA is asking for.

But that process has taken much longer at some sites, Joan Snyder, partner in the Portland, Ore., office of Stoel Rives LLP, told Bloomberg Environment.

“In my experience, it is not a quick process,” she said, adding that it potentially could take months.

The proposed changes also may create liability concerns for companies working on superfund sites, Snyder said.

“Parties like the judicial order because they provide greater finality and can provide greater protections” than solely EPA-backed orders, she said.

Paying the Bills

Companies involved with cleanup at a superfund site generally negotiate their portions of the cleanup bill among themselves, but the EPA wants to change that.

If a potentially responsible party at a superfund site declines to participate in the cost allocation process and sign the resulting agreement, the agency currently can’t make the company pay.

The federal government isn't directly involved in the allocation process, Walter Mugdan, acting deputy regional administrator for EPA Region 2, said at a Feb. 8 conference in Washington co-sponsored by the American Law Institute and Environmental Law Institute.

But the region’s office is “engaged in the beginning stages of what we hope will be an exception to that,” Mugdan said.

The EPA sometimes hires neutral mediators who ask the companies to negotiate costs, Snyder said, allowing the agency to step aside while the companies finish the allocation process.

“They could very easily take more of a role in that, but it would never be them stepping in and saying who has liability,” she said.

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