The U.S. Environmental Protection Agency (EPA) issued a significant new report this summer recommending more than forty (40) proposals to improve the federal Superfund program. This report represents the initial work product from the internal EPA Superfund Task Force formed by Administrator Scott Pruitt earlier this year. Administrator Pruitt has made expediting Superfund cleanups one of his primary goals as Administrator, and this Task Force report outlines numerous key policy and administrative measures for achieving this goal. Summarized below are some of the most significant recommendations outlined in this report.
- Existing cleanup sites and remedy selection recommendations:
- Target NPL sites that are not showing significant progress, especially sites where human exposure remains a risk
- Promote the use of adaptive management and interim and/or early response actions
- Revise EPA’s groundwater restoration policy
- Review the current approval and review authority for sediment sites and sites expected to cost in excess of $50 million, and create new procedures with timelines for remedy review at these sites
- Potentially responsible party (“PRP”) negotiation and settlement recommendations:
- Explore environmental liability transfers and other PRP risk management tools
- Consider the use of special account funds to reduce a cooperating PRP’s cleanup costs
- Consider discounting or reducing oversight costs charged to cooperating PRPs
- Review and modify financial assurance requirements
- Develop strategies to promptly delete sites or portions of sites from the National Priorities List
- Site investment and redevelopment recommendations:
- Expand the use of prospective purchaser agreements and revise the model “comfort” letter
- Consider using special account funds for bona fide prospective purchasers that conduct cleanup
- Develop other incentives (for instance, financial credits) to encourage private investment in site redevelopment and reuse
The Task Force recommendations provide an opportunity to assess your company’s Superfund liability risks, evaluate options for taking advantage of EPA’s proposed reforms, streamline and better manage your cleanup responsibilities, and consider site redevelopment and/or liability transfer possibilities. Initial steps could include evaluating which recommendations may be administratively and/or legally relevant for your company’s portfolio of Superfund liabilities, and developing a recommended approach for engaging key EPA decision-makers in efforts to adopt specific reforms that would apply to your sites. Baker Botts’ Superfund lawyers already have significant experience counseling and advocating on a number of these reform recommendations in all EPA regions, and we recommend that interested parties quickly seize the initiative by pursuing appropriate strategic efforts with EPA. Creative approaches that we have already used, and could build on as part of a future strategy, include advising on innovative cleanup methodologies relying on “adaptive management” techniques, obtaining significant EPA “orphan share” compensation and relief from Agency past cost demands (including through the use of special account funds), working with clients and EPA to streamline burdensome cleanup procedures and requirements, pursuing cost-effective strategies for obtaining “certificates of completion” and “no further action” determinations, negotiating remedy modifications and partial site deletions to reduce the amount and duration of O&M costs and encourage redevelopment, and negotiating environmental liability transfers to finance remediation.
If you would like to discuss how the Task Force recommendations could be applied to your remediation sites, or how to strategically approach administrative discussions and negotiations to suggest novel remediation methods, please contact one of the authors below.
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