THE AMERICAN LAW INSTITUTE Continuing Legal Education. Environmental Law

Transcription

1 83 THE AMERICAN LAW INSTITUTE Continuing Legal Education Environmental Law Cosponsored by the Environmental Law Institute February 5-7, 2014 Washington, D.C. Superfund Update By Walter E. Mugdan Marla Wieder U.S. Environmental Protection Agency, Region II New York, New York

2 84 2

3 85 SUPERFUND UPDATE January, 2014 By: 1 Walter Mugdan Director, Emergency & Remedial Response Division, U.S. EPA Region 2 and Marla Wieder, Assistant Regional Counsel, Office of Regional Counsel, U.S. EPA Region 2 I. Past Accomplishments, Current and Future Trends A. Accomplishments (as of 9/30/13): 1. 45,118 sites assessed (out of 50,893 sites currently in the database). 2. 1,739 proposed, final and deleted National Priorities List (NPL) sites; of these a total of 1,156 (66.4%) have all construction completed ,270 removal actions taken at 9,042 sites. 4. ~ $22.4 billion in EPA cleanup expenditures. 5. ~ $32.2 billion worth of cleanup work by PRPs, plus ~ $6.4 billion in cost recovery. 6. More than 1.4 million acres of land determined to be protective for people; and more than 470,568 acres determined ready for anticipated use. B. The number of new sites added to the National Priorities List (NPL) on an annual basis had been decreasing for several years ( average = 13/year final listings), but increased again in the past six years ( average = 20.5/year final listings). 1. Earlier decreases had various causes: State referrals had decreased as states managed sites themselves; federal funding for so-called Pipeline activities (pre-remedial site assessment work) decreased; the Superfund Alternative Approach (SAA) was used for a number of sites (See Section III. of this outline, below); and some EPA policy documents included the statement that NPL listing was the last resort for achieving a site cleanup. 2. Conditions that may be contributing to the recent increased number of NPL listings: increased state referrals to EPA due to economic stress (many state agencies are facing budget cuts and reductions in staff; state cleanup funds may also be depleted); increased number of bankruptcies, especially during the period , leading to more orphan sites (sites for which there are no viable responsible parties; see further below); and EPA revised its Superfund Program Implementation Plan (SPIM) to delete the statement that NPL listing is the last resort for cleanup. 2 1 Any opinions expressed herein are those of the authors, and do not necessarily reflect the position of the U.S. Environmental Protection Agency. 2 See the Change Log for Appendix A of the 2011 SPIM, showing changes from the 2010 SPIM, available at 1

4 86 3. EPA intends to amend the Hazard Ranking System (HRS) to add a new scoring pathway for subsurface intrusion of contaminants into structures including notably vapor intrusion. 3 If finalized this could contribute to a future increase in NPL listings. Additionally, EPA continues to work towards development of final vapor intrusion guidance. 4 C. The percentage of overall cleanup funding provided by potentially responsible parties (PRPs) has decreased in recent years. 1. States are more likely to retain sites with viable PRPs, and refer orphan sites to EPA for placement on the NPL. 2. More private parties in bankruptcy or facing severe financial constraints contribute to the increase in orphan sites. Sites in state-managed cleanup programs, including RCRA corrective action programs, may be referred to the EPA Superfund program when companies become unable to meet their cleanup obligations. 3. A result of these trends is that we are seeing more Fund-Lead Sites. a. Historically, PRPs paid approximately 70% of Superfund site cleanup costs (primarily through PRP-lead cleanups, but also accounting for cost recovery). b. In the past several years, the percentage has decreased; currently, about 50% to 60% of cleanups are carried out or paid for by PRPs. D. The average site that has been added to the NPL in recent years is, arguably, more complex and/or more costly than in the past. 1. Compared to the early years of the Superfund program, in recent years smaller and/or less complex sites have more often been retained by states and handled under their own Superfund-analog programs, or their RCRA or brownfields programs. 2. As traditional waste sites have been addressed, there has been increased attention to mega- Sites (e.g., urban waterways and large mining sites). E. Funding for Remedial Action (RA) has decreased significantly. 1. Funding was essentially flat from the mid-1990s to 2009, resulting in reduced buying power over time. By 2008, at over half of the fund-lead sites (i.e., those without PRPs able to pay for the work) with work ready to begin, construction could not be started because of lack of funding. 3 U.S. EPA, Potential Addition of Vapor Intrusion Component to the Hazard Ranking System, 76 Fed. Reg (Jan. 31, 2011), available at See also: 4 Various technical documents associated with the final vapor intrusion guidance are available on EPA's website at EPA has also opened its docket (EPA-HQ-RCRA ) to receive public comments specifically on these documents. To comment, simply follow the hyperlink to the docket from the vapor intrusion website. 2

5 87 2. The American Recovery and Reinvestment Act of 2009 (ARRA, known as the Stimulus ) provided an additional $600 million for Superfund Remedial Action. This enabled EPA to start construction at all fund-lead sites that were ready. 3. Appropriations for remedial action were reduced significantly in federal fiscal years 2012, 2013 and In FY-2011 the funding level was $605 million; by FY-2014 this figure dropped to about $465 million,5 nearly a one quarter reduction in three years. As a result, there were no new federally funded construction starts in 2012, and only a small number in 2013, leaving many sites that are ready for construction to sit and wait Very costly cleanups (e.g., $50 million or more) are often funded on an incremental basis over time. For example, a $300M+ fund-lead cleanup may be stretched out over years, with $20-$30M provided each year. This introduces inefficiencies, but has in the past allowed a more balanced program with both new RA starts and ongoing cleanups being funded in any given year. 4. Ongoing cleanups represent the first priority for continued funding in any given year; that is, they typically have a higher priority than starting a new cleanup project. a. The fraction of available RA funding required to maintain all the ongoing cleanups has grown because the pace of adding them has exceeded the pace of completing them. Recently this fraction has approached 100% of the RA budget (and threatens to exceed 100% in the future). b. This means that in recent years it has often not been possible to fund the start of construction at all the new fund-lead sites that are ready to go, while still continuing all ongoing cleanups at their usual pace. As noted above, in several recent years few or no new fund-lead RA starts were possible. 5. Since FY-2010 the President has proposed reauthorization of the Superfund tax. a. The tax, which provided the income for the original Superfund, lapsed in 1995 and has not been reauthorized since. b. Since then, funding for the Superfund program has come largely from general revenues of the U.S., with a smaller contribution from cost recovery. c. Reinstitution of the tax would not guarantee increased appropriations by Congress, but it would presumably make it easier for Congress to maintain the historic funding levels or increase appropriations should it wish to do so. d. In any event, Congress has so far declined to reinstate this tax. F. The annual number of remedial action (RA) starts and construction completions (CC) have decreased in recent years. 1. Overall, two thirds of the sites on the NPL have achieved CC. 2. Non-CC sites are, on average, more complex than those that have achieved CC. a. Of the non-cc sites, ~40% are federal facilities (generally large/complex); or high cost (>$50 M). 5 At this writing there is as yet no final FY-2014 budget; the figure in the text is from the President's budget proposal. 6 At this writing there are some 30 sites around the country that are ready for construction to start, but for which federal funding is not available. 3