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The Environmental Protection Agency may turn to a contentious alternative in its effort to streamline the Superfund program.
When applied to a contaminated site, the “Superfund Alternative Approach” uses the same standards and investigation process as sites going through the conventional Superfund program. But the site isn’t added to the National Priorities List—a designation some companies, such as Saint-Gobain, strive to avoid.
The designation sometimes comes with a stigma for communities that don’t want to publicize their contaminated site, and for companies that don’t want to pay more for EPA-led cleanups.
In May, EPA Administrator Scott Pruitt asked his new Superfund task force to find ways to “utilize alternative and non-traditional approaches for financing site cleanups.”
The agency is declining to state specifics about the task force’s recommendations for Superfund reform, which were due to the administrator June 21.
As of the end of 2014, the most recent year for which figures are available, about 60 sites had alternative approach agreements, according to the agency. About 1,300 sites were on the National Priorities List as of May 16.
The Superfund Alternative Approach can’t be used at every site, and feedback on the approach has varied.
“Overall, it has a limited use on a few sites, but not a broad-based approach to cleanup,” said Mathy Stanislaus, former assistant administrator of the EPA’s Office of Land and Emergency Management, which handles Superfund.
He told Bloomberg BNA the Superfund Alternative Approach has been efficient in a few instances.
“There have been others where disagreement—because of the absence of enforcement provisions—has been caught in extended conversation,” he said.
The EPA’s official stance on the alternative approach notes that benefits may include “a community’s good will at not having the site listed on the [National Priorities List], a [potentially responsible party’s] willingness to negotiate a good-faith agreement, and the opportunity to start cleanup work more quickly than waiting for listing on the NPL.”
Superfund alternative sites are not eligible for federal cleanup funds drawn from taxpayers and rely on funding from potentially responsible parties—companies that may have discharged contaminants at sites.
“Orphan” sites—often complex contamination cleanup projects where potential responsible parties have not been identified or are unable to pay—would not be able to benefit from the alternative approach.
If a potentially responsible party fails to meet its obligations, the EPA may still consider adding the site to the National Priorities List.
In a recent case, a company involved an elected official in its efforts to keep a contaminated site off the National Priorities List.
A former Democratic state representative in Alabama admitted June 22 that he accepted $360,000 in donations to advocate against expanding a northern Birmingham Superfund site and adding it to the National Priorities List.
An Alabama law firm, Balch and Bingham LLP, represented two potentially responsible parties for the site’s contamination and paid the representative, Oliver L. Robinson Jr., according to Robinson’s plea agreement.
Robinson testified to a state commission that expanding the Superfund site would hurt the community’s business opportunities.
In New York, Saint-Gobain Performance Plastics opposes National Priorities List designation for the its facility in the Village of Hoosick Falls, where perfluorooctanoic acid (PFOA) has contaminated the water supply.
If the site is listed, Saint-Gobain branding and communications director Dina Pokedoff said in a statement to Bloomberg BNA, “The process could be detrimental to the positive remediation efforts already taking place in the village if the EPA were to take the lead role.”
Listing the site, and getting the federal government further involved, could slow the company’s water remediation work, Pokedoff’s statement said.
For sites where potentially responsible parties are willing to enter into cleanup agreements, the alternative approach can be more efficient than National Priorities List consideration.
Bart Seitz, a partner in the Washington, D.C., office of Baker Botts LLP, said a client found the approach “very effective.”
“It did allow for significant streamlining, particularly on the technical side,” Seitz told Bloomberg BNA.
But, Seitz said, the decision to take the alternative approach depends somewhat on what EPA region the site is in. Some regional directors are more receptive to the alternative approach than others, he said.
Regions 1, 2, 6, and 7 have not had alternative approach agreements from sites in their geographic boundaries, according to EPA data from 2002 to the present.
Regions 3 and 5 have the most alternative approach agreements, though some sites may share agreements and other sites may have multiple agreements. Regions 4, 8, 9, and 10 also had alternative approach agreements.
Doug Arnold, an environmental law partner in the Atlanta office of Alston and Bird LLP, said the alternative isn’t likely to replace the conventional Superfund site investigation and listing process.
“There’s recognition or consensus that Superfund, or what it’s intended to do, is important, but [there is a need] to step back and figure out why these sites on the list are so far from finished,” Arnold told Bloomberg BNA.
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