Superfund Task Force Holds First of Eight Listening Sessions for Stakeholders, Focused on Expediting Settlement Negotiations

The Superfund Task Force, created in May 2017, issued a report in July 2017 proposing recommendations to streamline and strengthen the Superfund program. The Report contained five goals and 42 recommendations. In order to obtain input from stakeholders and the public and to increase transparency and improve communications, USEPA has convened eight listening sessions being held from May 21 to June 18, 2018. The Gibbons Environmental Department will be covering these listening sessions and blogging about them. The first listening session, which focused on expediting settlement negotiations, was held on May 21, 2018.

The five goals of the Superfund Task Force Report are: (1) expediting cleanup and remediation process, (2) reinvigorating responsible party cleanup and reuse, (3) encouraging private investment, (4) promoting redevelopment and community revitalization, and (5) engaging partners and stakeholders. The first listening session focused on Goal 2 through the strategy of encouraging responsible party clean-up with expedited negotiations.

Christina Skaar from OSRE’s Regional Support Division and Elizabeth McKenna, Region 10 Office of Regional Counsel, made a short presentation at the beginning of the listening session. Recommendation 16.2 covers strategies to focus on and decrease the time involved in negotiating cleanup agreements and implementing cleanup work once agreement is finalized.

Ms. Skaar noted the benefits of expediting settlements: earlier response to contamination, greater protection of human health and the environment, and transactional costs savings for Potentially Responsible Parties (PRPs). EPA has guidance documents designed to promote successful negotiations. A revised policy was issued in 2012 regarding managing the duration of the Remedial Design/Remedial Action (“RD/RA”) negotiations. The purpose of the revision was to strengthen negotiation practice and shorten the duration of negotiations.

EPA is reviewing the 2012 guidance to see if it can be improved. EPA is considering instituting a “Best Practices Tip Sheet” including a renewed emphasis on meeting time timelines, and using enforcement tools against parties that are dragging negotiations out.

EPA wants to identify common delay factors and for this reason is seeking input from private practitioners, citizen groups, and tribes.

Among the delay factors EPA identified are:

  • Sites where there are multiple parties and potential allocation issues, specifically different types of parties with different goals;
  • Difficult technical issues with the cleanup, such as in sediment sites;
  • Issues relating to calculating and negotiating an orphan share; and
  • Disagreements about provisions in EPA model settlement agreements

As part of the listening session, EPA took comments from registered participants. Most of the participants spoke from the perspective of the PRPs. The remarks included:

  • Parties need to know they will be treated fairly.
  • Parties need finality; open ended re-openers are a problem.
    • Parties reported an increasing number of reopeners on sites once considered closed.
    • Parties need practical and reasonable templates for performing additional activities under reopeners.
    • EPA’s Model agreements do not apply easily to reopeners.
    • PRPs want to have certainty how much and how long a remediation is going to take.
    • The RD and RA process should not be coupled. Parties need the RD done before allocation to take place for RA. PRPs are creative enough to do interim funding on their own for an RD.
  • A major barrier to expedited negotiations is the need for PRPs to agree on allocation of costs.
    • It would be helpful if EPA would tell PRPs what the remediation drivers are.
    • EPA needs to assure there is a critical mass of PRPs.
    • EPA needs to make sure that important PRPs are part of the process
    • It is important to have the right mix of PRPs.
    • Notice letters need to have key language to ensure that insurance coverage is triggered.
    • EPA needs to have patience to allow the allocation process to run its course
  • EPA needs to shorten the RI/FS timeframe.
  • Parties favor EPA’s use of adaptive management.
  • Superfund sites are more complicated now. Reopeners are a problem.
  • EPA oversight needs clear definitions of critical events and time frames for EPA decisions.
  • Uncertainties regarding the cleanup are major problems.

One participant articulated the viewpoint of communities living in or near Superfund sites:

  • The emphasis on the lowest cost remedy and granting of covenants not to sue do not help in reaching a permanent remedy.
  • PRPs and the Superfund community are being sold a bill of goods, particularly with respect to containment strategies.
  • He suggested that maybe EPA needs to consider relocating Superfund communities away from Superfund sites.

EPA is collecting input from stakeholders and practitioners regarding delays and intends to analyze the feedback and develop ways for EPA to improve CERCLA and the enforcement program. Written remarks can be emailed to OSRE-SFTF-listening-session@EPA.gov until May 29, 2018.

Susanne Peticolas is a Director in the Gibbons Environmental Department.
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