While in some areas the
Trump regime wants to reverse the environmental policies of the Obama
administration, the new administration’s attitude toward Superfund is more
nuanced. The Superfund Task Force recommendations released earlier this week
seem to have been developed by career professionals under the oversight of the
Administrator Pruitt team. The Task Force report does not represent a dramatic
departure from past policies.
Below I note potential
problems with the recommendations, but I end by identifying reuse as an area
where people with differing environmental perspectives can work together.
Lenny
ISSUES
A lot of the
recommendations are good. But they won’t
do much good if budget and staffing are cut by a third.
As far as I know, there was no outreach
to impacted communities in the development of the recommendations.
The only serious
mention of public health is the discussion of sites where human exposure is not
under control, but it doesn’t discuss properties that should be on the National
Priorities List because of human exposures, but which are not yet listed. These
include vapor intrusion sites, which now may qualify due to the recent rule
updating the Hazard Ranking system, and sites with emerging contaminants such
as PFCs.
National remedy review
may provide consistency of policy, but it also can be a tool for overriding the
community acceptance criterion – one of the nine remedy-selection criteria in
the National Contingency Plan.
The proposal to
accelerate deletions from the National Priorities List worries me, because
there is no discussion of the long-term management of residual contamination.
The Task
Force recommends, “Design and implement a pilot that utilizes independent third
parties to oversee certain actions, such as long-term monitoring.” This is similar to something I’ve
proposed, but it doesn’t address how liability might be affected.
On
liability, it recommends, “Explore Environmental Liability Transfer (ELT) Approaches and Other
Risk Management Tools at PRP cleanups.” Reducing the liability of PRPs
might help move projects along, but there needs to be a safety net to ensure
that some entity is on the hook if a remedy fails.
The report talks about
Sustainable Redevelopment but not Green and Sustainable Remediation.
While it mentions
Environmental Justice organizations, there is no discussion of environmental
justice.
I’m concerned about the
proposal to reduce the indirect costs charged to potentially responsible
parties (PRPs, also known as polluters). One of the strengths of Superfund,
compared to many state programs, is that EPA often is able to utilize the
combined expertise of a complete team. Cutting indirect costs could reduce
expert oversight.
The report states “The
principles of groundwater restoration are key concepts outlined in CERCLA and
the National Contingency Plan (NCP). Developing improved guidance in this area
may help facilitate more timely remedy decisions and make use of the
flexibilities inherent within the statute and the NCP. Flexibilities include:
using a phased approach, considering monitored natural attenuation, determining
whether a technical impracticability waiver is warranted, etc.” Technical
Impracticability and Monitored Natural Attenuation are sometimes necessary
approaches, but they imply less cleanup,
not expedited remediation.
The recommendation on Groundwater
Classification doesn’t seem to recognize state anti-degradation policies.
REUSE
The Report, in line
with Administrator Pruitt’s public statements, emphasizes reuse. Superfund reuse is an area where activists/local
official like myself and Republicans suspicious of environmental regulation can
work together. EPA should not ignore its mandate to protect public health
and the environment, but sometimes reuse, including the redevelopment of
Superfund sites (including off-site areas impacted by Superfund groundwater
plumes or vapor migration) can enhance and accelerate environmental protection.
Third-party – that is,
non-PRP – property developers often fund and carry out vapor intrusion
mitigation during redevelopment, and in some cases they may be able to conduct
or fund subsurface cleanup in exchange for more rapid reuse.
I especially like the final
recommendation: “Use a
Federal Advisory Committee to Work with a Broad Array of Stakeholders to
Identify Barriers and Opportunities Related to Cleanup and Reuse of Superfund
Sites.”
Beginning with the Federal Facilities Environmental Restoration Dialogue
Committee in the early 1990s, I have found that such advisory committees have
the potential to come up with win-win solutions to controversial environmental
challenges.
Communities new to
Superfund reuse would benefit from the experiences of communities that have
been doing it for some time. Mountain View (where I serve as Vice-Mayor) has as
much experience as any community in the reuse of Superfund sites. For example,
Google is building its new headquarters and planning to build housing above the
downgradient Teledyne-Spectra Physics Superfund plume.) Mountain View uses the
California Environmental Quality Act, as well as our own permitting policies,
to protect public health while encouraging both residential and commercial
development. That is, it is possible for economic reuse and the protection of
public health to go hand in hand.
Finally, while emphasis
on reuse works here in Silicon Valley and other areas where there is a strong
demand for property development, it could leave weaker economic areas with toxic
messes forever. Those areas should not be forgotten.