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EPA’s New Guidance Mandate Leaves Superfund Cleanup Less Certain

Sept. 18, 2020, 10:01 AM

The EPA’s newly finalized changes to guidance documents could make for less predictable decisions over Superfund cleanups, attorneys said.

The Environmental Protection Agency’s Superfund cleanups rely heavily on guidance to keep the agency’s decisions consistent across 1,300 unique sites.

The agency released a final rule this week (RIN:2010-AA13) that requires a public comment period for some new guidance, and allows the public to petition for published guidance to be withdrawn. The changes are “intended to increase the transparency of the EPA’s guidance practices,” it stated in the rule.

Attorneys involved with Superfund sites were concerned that rescinding old guidance, or taking longer to issue a new one, could leave cleanup decisions in the hands—and opinions—of individual agency employees.

“This kind of regulation is a mixed bag,” said Ann L. Al-Bahish, an attorney for Haynes and Boone LLP in Houston. “Guidance in the Superfund program can be helpful in that it allows for more uniformity among project sites, at least to some degree.”

Injecting Uncertainty

The EPA has issued several guidance documents over the past few years as a result of its Superfund task force, focused on accelerating cleanup and pushing sites toward redevelopment.

Depending on the type of guidance being issued or rescinded, the impact at Superfund sites could be greater unpredictability about which contaminants the EPA will prioritize for cleanup, or differing decisions about identifying potentially responsible parties, said Sarah Peterman Bell, partner at Farella Braun + Martel LLP in San Francisco.

“It’s often the uncertainty that can be so problematic,” she said.

The agency released a guidance memo in January noting that at sites where a third party agreed to carry out cleanup, the EPA would look to the third party to also perform potential corrective measures and pay penalties—before pursuing the same from a potentially responsible party.

The agency also released interim guidance in April regarding the continuation of cleanup work during the coronavirus pandemic.

Ultimately, the impact of the EPA’s rule, which hasn’t yet gone into effect, is still unclear, Bell said.

“I don’t know that there’s a lot of agreement among practitioners, the regulated community, and even the nonprofit or NGO side about how this is actually going to play out,” she said.

Holding EPA Accountable

The new rule has a different effect on the agency’s cleanup programs—under the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund, and Resource Conservation and Recovery Act—than on the agency’s other core programs.

“It’s particularly significant for the CERCLA and RCRA corrective action programs, because practically, both are much more guidance-driven than regulation-driven,” said Charlie Howland, head of the environmental group at Curtis Mallet-Prevost, Colt & Mosle LLP in New York.

The rule also may be a response to criticism that the EPA isn’t held accountable for interpretations of guidance to the same degree as its interpretation of regulations, which can be challenged in court, Howland said.

“This regulation is intended to address this issue, albeit through public rather than judicial scrutiny,” he said.

More Input, But Longer

Many times, guidance is practical in the context of Superfund, said Allison Rumsey, partner at Arnold & Porter Kaye Scholer LLP in Washington, helping to explain what position the EPA will take.

But having a public comment period may help allow other voices to weigh in on the process and get a view of the EPA’s draft guidance, she said.

However, adding the comment period will also add time to the process of issuing guidance, Howland said.

“This rule will make it more cumbersome and time consuming to issue guidance, including on technical topics that would not necessarily benefit from additional public comment,” he said.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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