With the effects of climate change becoming increasingly dire, hundreds of Superfund sites are in danger of destabilizing and releasing toxic chemicals into nearby neighborhoods and the environment.[1] A 2019 report by the Government Accountability Office (GAO) estimated that over 60 percent of nonfederal National Priorities List (NPL) sites are in areas at risk of flooding or experiencing damage from other impacts of climate change.[2] The GAO also found that EPA did not consistently incorporate climate change information into its remedial assessments.[3]
The consequences of not adequately protecting Superfund sites are on full display. In Texas, the San Jacinto Waste Pits, a Superfund site, was compromised by Hurricane Harvey in 2017.[4] The nearby water supply was flooded with human carcinogens 2,300 times above EPA’s standard. NBC news estimates that more than 252 Superfund sites flooded as a result of hurricanes Harvey, Maria, and Irma—all in 2017.[5] Wildfires are also of concern. In addition to fighting forest fires in northwest Montana, the US Forest Service’s firefighters have to contend with highly toxic chemicals in the air released from a former mine that is a designated Superfund site.[6] And these incidents just scratch the surface; there is more to come if EPA does not take immediate action.
To that end, this post will outline EPA’s authority under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—commonly referred to as Superfund—to reassess existing settlements with potentially responsible parties (PRP). As the above studies and examples show, existing settlements that did not properly consider climate change science and impacts pose potential risks as once rare possibilities become more frequent and factors not properly considered prove the remedial plan inadequate. Reassessing existing remediation plans for their ability to withstand the effects of climate change is an increasingly urgent concern for both orphaned CERCLA sites and those with PRP. Although orphaned sites face significant cleanup challenges (particularly, a lack of funding), sites with existing agreements with PRP present special challenges as well, such as resistance to change from settled parties fearing increased costs. Reopening a settled agreement is no easy task, and will likely face pushback from parties who agreed to the settlement, in part, to reduce their future liability. Nevertheless, CERCLA gives EPA enormous discretion to ensure that Superfund sites are cleaned up by identified PRP and not by the taxpayer, which would be the case if a PRP avoided liability.
EPA’s authority to amend settlements under CERCLA
Under § 9622 of CERCLA, EPA may enter into settlements with PRP to clean up hazardous waste sites. These settlements must be consistent with the National Contingency Plan and be in the “public interest.”[7] EPA, as required by CERCLA, enters all settlements as consent decrees in a federal district court.[8] As part of the consent decree, EPA may agree to a cap on PRP liability to third parties and a covenant not to sue concerning any liability to the United States.[9] While each consent decree may vary, EPA tends to stick closely to the Model Consent Decree.[10]
The starting place for amending a settlement is with the Record of Decision (ROD) — the document that details the scope of the cleanup.[11] It is more difficult to incorporate climate change considerations into the remedy after EPA has issued a ROD. Arguably, the program goal set out in the regulations—to select a remedy that is protective over time—necessitates considering climate change when choosing the remedy.[12] While science about how climate change might impact a site and the adequacy of its remedial actions should be considered in developing the ROD, what we know about the impacts of climate change, particularly at the level of detail needed to evaluate an individual site, has changed significantly in recent years.[13] The National Contingency Plan (NCP) lays out the necessary steps to amend a ROD.[14] And an EPA 1996 guidance document, Updating Remedy Decisions, supplements it.[15] There are three kinds of changes that EPA can make to the ROD: minor, significant, and fundamental.
The lead agency decides the categorization of the proposed change.[16] Minor changes have “little or no impact on the overall scope, performance, or cost of the alternative…remedy….”[17] An example of a minor change is a five percent increase in cost.[18] Minor changes must be “recorded and explained in the post decision document file.”[19] Significant—but not fundamental —changes to the ROD require that the lead agency issue an “Explanation of Significant Differences,” as explained in NCP § 300.435(c)(2)(i). An example of a significant change would be a discovery that residuals from a treatment operation are hazardous and require off-site disposal.[20] Fundamental changes to the ROD require an amendment, as explained in NCP § 300.435(c)(2)(ii). The process involves a notice-and-comment approach condensed into thirty days.
In addition to the procedures outlined above, EPA’s Model Consent Decree has a two-prong approach to modifications. Most modified remedies require an amended Statement of Work (SOW), which details how the PRP implement the ROD.[21] Nonmaterial modifications to the SOW simply require that it be in writing and signed by EPA and PRP.[22] Material modifications, however, require the additional step of receiving approval from the relevant district court.[23] A material modification is a change that is considered fundamental under NCP § 300.435(c)(2)(ii). In 2015, for instance, EPA filed a motion to amend a consent decree to clean up the Tri-Cities Barrel Superfund site in the Town of Fenton, New York.[24] EPA filed the motion after learning that part of the original remedy was “technically impracticable from an engineering perspective.”[25] They instead proposed a comparable remedy.
One of the most straight-forward ways that EPA already reviews remedial actions for adequacy is through the Five-Year Review (FYR) process. A FYR is exactly what it sounds like; it gives EPA a more formal opportunity to review existing Superfund sites. Some FYRs are required by statute[26] and others are discretionary (also known as “policy reviews”).[27] Sites with a remedial action that results in hazardous substances remaining at the site “above levels that allow for unlimited use and unrestricted exposure” require a FYR.[28] EPA may perform a policy review at any site, even if not required by statute, as long as there is a justification.[29] A request from the community is an example of a valid justification.
What EPA has already done
EPA has taken steps in the past to address this very issue. In 2014, EPA issued the Climate Change Adaptation Plan, detailing how the agency can incorporate the effects of climate change into its work.[30] The 2014 plan included action items in connection to Superfund sites, such as developing criteria to identify remedies at risk from climate change and creating protocols to implement the necessary changes.[31] Also in 2014, the Office of Solid Waste and Emergency Response (OSWER) issued its Implementation Plan in response to the wider-EPA plan.[32] The Implementation Plan contains a comprehensive review of OSWER’s vulnerabilities to climate change. While both plans set out policies that would mitigate the effect of climate change on Superfund sites, it is not clear that EPA consistently applied them in subsequent years.
EPA did, however, issue fact sheets based on the proposals set out in the Climate Change Adaptation Plan. For example, there is a fact sheet on addressing climate resilience for groundwater remediation systems.[33] Summitville Mine—a Superfund site on the NPL in Colorado—is a good case study of how climate resilience could work.[34] At Summitville, EPA took resiliency measures such as constructing a water treatment plant outside of a 500-year floodplain, increasing a dam’s storage capacity, and upgrading other infrastructure to withstand increasingly dangerous snowmelts.[35] There is a similar fact sheet on resiliency in Contaminated Sediment Remedies.[36]
While less comprehensive than an EPA initiative, property owners near Superfund sites could make use of state courts to push EPA towards more resilient remedial plans. In Atlantic Richfield v. Christian,[37] decided just last year, the US Supreme Court held that property owners could bring state-law claims (e.g., nuisance) against PRP in state courts because state-law claims do not arise “under CERCLA.”[38] The plaintiffs in Atlantic Richfield, property owners near Anaconda Smelter, sued the PRP in state court for a better clean-up plan than the EPA-approved plan. Under Atlantic Richfield, the key limitation for property owners in future cases is that EPA still has to pre-approve plans. Nonetheless, property owners’ newfound legal standing has the effect of allowing them to push the envelope on Superfund resiliency earlier in the process.
EPA recently responded to public comments on its proposed ROD amendment for Anaconda Smelter.[39] Two members of the public expressed concern over EPA’s failure to include a filtration basin, which would mitigate the effects of future forest fires. EPA responded by saying that since 2011 it has considered “the effects of climate change on Superfund remedies” and that, as a result of those comments, it would require the consent decree to include “a step for re-opening the remedy if waived-to standards cannot be achieved.”[40]
Conclusion
EPA, under President Biden, is positioned to have an integral role in achieving the administration’s agenda on climate change. Within his first week in office, President Biden issued various executive orders aimed at addressing climate change. One of these created the Environmental Justice Initiative within the White House to address the unequal impact that climate change has on the American public. A comprehensive review and adjustment of Superfund remedial plans would be part and parcel with the Environmental Justice Initiative’s charge.[41]
[1] David Hasemyer, Hundreds of Toxic Superfund Sites Imperiled by Sea-Level Rise, Study Warns, Inside Climate News (July 28, 2020) https://insideclimatenews.org/news/28072020/toxic-superfund-epa-sea-level-rise-climate-change/.
[2] U.S. Gov’t Accountability Off., GAO-20-73, Superfund EPA Should Take Additional Actions to Manage Risks from Climate Change (2019).
[3] Id. at 39.
[4] Davis Hasemyer & Lise Olsen, A growing toxic threat – made worse by climate change, NBC News (Sep. 24, 2020) https://www.nbcnews.com/specials/superfund-sites-climate-change/index.html.
[5] Id.
[6] Michael Kodas & David Hasemyer, Wildfires fueled by climate change threaten toxic Superfund sites, NBC News (Dec. 23, 2020) https://www.nbcnews.com/news/us-news/wildfires-fueled-climate-change-threaten-toxic-superfund-sites-n1252156.
[7] Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9622 (West).
[8] Id.
[9] 68 Am. Jur. Trials 1 (Originally published in 1998).
[10] Id.
[11] See Env’t Prot. Agency, About the Superfund Cleanup Process, (last visited March 3, 2021) https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-4.
[12] National Contingency Plan, 40 C.F.R. § 300.430.
[13] U.S. Global Change Research Program, Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment, Chapter 28, (2018), https://nca2018.globalchange.gov/chapter/28/.
[14] National Contingency Plan, 40 C.F.R. § 300.435.
[15] See generally Env’t Prot. Agency, 540-F-96-026, Superfund Reforms: Updating Remedy Decisions, (1996).
[16] Env’t Prot. Agency, 9355.3-02FS-4, Guide to Addressing Pre-ROD and Post-ROD Changes, (1991).
[17] Id. at 1.
[18] Id. at 3.
[19] Id. at 7.
[20] Id.
[21] Superfund Reforms: Updating Remedy Decisions, supra note 15 at 8.
[22] Env’t Prot. Agency, RD/RA Consent Decree, (last visited March 3, 2021) https://cfpub.epa.gov/compliance/models/view.cfm?model_ID=8.
[23] Id.
[24] United States v. Amphenol, No. 3:01-CV-0637-NAM-GS, 1, 53 (N.D.N.Y 2015) https://elr.info/sites/default/files/doj-consent-decrees/united_states_v._amphenol_corp.pdf.
[25] Id. at 112.
[26] 42 U.S.C. § 9621(c).
[27] Env’t Prot. Agency, 9355.7-21, Five-Year Reviews, Frequently Asked Questions (FAQS) and Answers, 1, 6 (undated).
[28] 40 CFR § 300.430(f)(4)(ii).
[29] Five-Year Reviews, supra note 27 at 4.
[30] See generally Env’t Prot. Agency, 100-K-14-001, Climate Change Adaptation Plan, (2014).
[31] Env’t Prot. Agency, Superfund Climate Resilience, (last visited March 3, 2021) https://www.epa.gov/superfund/superfund-climate-resilience.
[32] See generally Env’t Prot. Agency, Office of Solid Waste and Emergency Response Climate Change Adaptation Implementation Plan, (2014).
[33] Env’t Prot. Agency, 542-F-19-005, Climate Resilience Technical Fact Sheet: Groundwater Remediation Systems, (updated 2019).
[34] Id. at 8.
[35] Id.
[36] Env’t Prot. Agency, 542-F-15-009, Climate Change Adaptation Technical Fact Sheet: Contaminated Sediment Remedies, (2015).
[37] See Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 206 L. Ed. 2d 516 (2020).
[38] Congressional Research Service, LSB10513, When One Door Closes, Another One Opens: Supreme Court Ruling Restricts Challenges to CERCLA Cleanup But Could Expand State-Law Claims, (2020).
[39] Env’t Prot. Agency, 10007997- R8 SDMS, Record of Decision Amendment for the Anaconda Regional Water, Waste & Soils Operable Unit, Deer Lodge County, Montana, (2020).
[40] Id. at 2-13.
[41] See Shriver Center on Poverty Law, Poisonous Homes, (June 2020) https://www.povertylaw.org/wp-content/uploads/2020/06/environmental_justice_report_final-rev2.pdf.