Pruitt to Tap Private Sector to Hasten Superfund Cleanups

Environmental due diligence is a critical component of any property transaction where potential environmental risks are a concern—minimize risks and protect yourself from...

By Sylvia Carignan

EPA Administrator Scott Pruitt is embracing public-private partnerships and setting aggressive agency deadlines to move languishing Superfund site cleanups forward.

The administrative overhaul opens up opportunities for private parties to take on Superfund cleanups and for the Environmental Protection Agency to more quickly get contaminated sites off its National Priorities List.

Pruitt’s Task Force

Pruitt’s Superfund task force—called together in May—focused on changes that could be made to the Superfund program outside of legislation. The task force’s recommendations were built into a plan with deadlines for the agency. The plan, recommendations,, and a memo from the administrator to regional offices were released July 25.

The task force’s recommendations describe administrative changes to accelerate cleanup, especially for sites that have been on the the National Priorities List for years. As of June 21, there were 1,336 sites on the list, of which 1,179 are private sites and 157 are federal facilities, according to the EPA.

“This is truly about us identifying what proper remediation means,” Pruitt said at a media roundtable July 25.

But environmentalists and other groups say he’s leaving out people most affected by cleanup decisions—local residents.

Rosanne Barone, Houston program director for the Texas Campaign for the Environment, worries that Pruitt’s emphasis on getting sites off the National Priorities List faster will lead to decisions that compromise public health. “He’s completely leaving out the people who are living in these communities, who are the real stakeholders,” she said.

Addressing Liability

Lenny Siegel, executive director for the Center for Public Environmental Oversight in California, favors the recommendations, but worried about their implementation. “Their application may have a negative effect if budget and staffing are cut by a third,” he told Bloomberg BNA.

The recommendations are “consistent with this administration’s goals to engage the private sector, and thereby shift some of the cost and burden away from the federal government,” said Peter Hsiao, a partner at Morrison Foerster.

The recommendations offer some of the financial risk to third parties—such as nonprofit organizations or land banks—which are not potentially responsible for contamination but sometimes offer to assist with funding cleanup. “The problem is going to be finding somebody who wants the liability,” Hsiao said.

The agency will also focus on communicating with potentially responsible parties who have already been identified for particular sites. They also will create a work group to review existing state programs and identify opportunities for parties to perform specific tasks at waste sites.

Superfund sites that have spent years without a cleanup decision—but have identified responsible parties—may see positive change as a result of the agency’s new Superfund plan, Pruitt said. “If you’re a [potentially responsible party] and you’re in that situation, guess what? We’re going to be talking to you very soon,” he said.

Recommended Changes

The task force, which involved more than 80 members, issued 42 recommendations. Their recommendations became part of EPA’s new Superfund plan, released July 25.

The changes the agency will make to the Superfund program have deadlines ranging from the last quarter of fiscal year 2017 to the last quarter of fiscal year 2018.

The recommendations include:

  •  Directing resources toward sites that have been on the National Priorities List for five years or longer where little progress has been made,
  •  Prioritizing Superfund sites where remedies have already been selected,
  •  Pushing potentially responsible parties and agency personnel to adhere to project deadlines,
  •  Identifying sites where land can be re-used in order to promote third party investments. and
  •  Using the Superfund alternative approach to finance site cleanups.
The Superfund alternative approach involves the same site investigation process, but avoids adding the site to the National Priorities List. For some companies and communities, becoming involved with a listed site carries a stigma.

Hsiao told Bloomberg BNA that those involved with Superfund in the private sector have been expecting some of these changes, including an emphasis on third-party investments, for some time.

“I think most sophisticated practitioners believe that the process could be improved substantially, and many of these recommendations, I think, follow the ways people think the process could be improved,” he said.

Bart Seitz, a partner in the Washington, D.C., office of Baker Botts LLP, said it’s “laudable” to see the agency embarking on this plan, but says it’s still early in its development.

“As the saying goes, ‘The devil will be in the details,’ as this gets rolled out,” he told Bloomberg BNA.

For More Information

The EPA memo, "Revitalizing the Superfund Program," is available at http://src.bna.com/q4P.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try Environmental Due Diligence Guide™ & Environmental Due Diligence Guide Report™