Articles, Newsletters and Advisories
The Legal Intelligencer
(by Alana Fortna)
The great Bob Dylan sang, “may you have a strong foundation when the winds of changes shift.” His song may have been released nearly 50 years ago, but his lyrics ring true today in many facets of life, even environmental law and policy. President Joe Biden stayed true to his word on combatting climate change when he signed an executive order before the dust settled on his luggage in the White House. In this article, I discuss these policy changes and my opinions on what this could mean for Superfund sites.
Executive Order on Tackling the Climate Crisis at Home and Abroad
On Jan. 27, Biden signed an executive order regarding climate change and related environmental justice concerns. The executive order speaks to taking a “governmentwide” approach to the climate crisis.
Section 202 establishes the White House Office of Domestic Climate Policy headed by a National Climate Advisor with a National Climate Task Force consisting of Executive Branch agency heads. Pursuant to Section 211, within 120 days of the order, each federal agency must submit a draft action plan to the task force describing efforts to bolster adaption and increase resilience to climate change. To ensure follow-through, agencies must submit annual progress reports on their implementation efforts.
Section 216 provides that within 90 days of the order, the Secretary of the Interior must submit a report to the task force recommending steps to take, working with state, local, Tribal, and territorial governments, agricultural and forest landowners, fishermen, and other stakeholders, to conserve at least 30% of our lands and waters by 2030. The executive order also calls for the Secretary of Commerce to “collect input from fishermen, regional ocean councils, fishery management councils, scientists, and other stakeholders on how to make fisheries and protected resources more resilient to climate change, including changes in management and conservation measures …” This 30% conservation goal could hasten the EPA’s expectations for remedial action at Superfund sites situated in and around stakeholder communities, such as Tribal lands that rely on fish and wildlife for sustenance.
Section 219 calls on agencies to “make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities …” Additionally, in Section 222, the executive order outlines key responsibilities for the EPA: strengthen enforcement of environmental violations with disproportionate impact on underserved communities and create a community notification program to monitor and provide real-time data to the public on current environmental pollution in places with the most significant exposure.
- Potential Impacts of Biden’s New Policies on Superfund Sites
The discussion of climate change and environmental justice in the context of Superfund is not novel. In 2011, the EPA issued its first policy statements on climate change adaptation and coordination with Tribal governments. The new Biden policies mean a heightened focus on Superfund sites with potential impacts during: site listing, remedial activity, the five-year review and litigation.
- Potential Impacts of Biden Policies on Site Listing
The EPA uses the hazard ranking system (HRS) to assess a site for inclusion on the National Priorities List (NPL). The HRS focuses on risk and determines a score based on four pathways. HRS guidance manual (HRS manual), OSWER Directive 9345.1-07 (Nov. 1992), at p. 1. The four pathways are: ground water migration, surface water migration, soil exposure and subsurface intrusion; and air migration. The risk factors are grouped into three categories: likelihood of release, waste characteristics, and targets affected by the release. HRS Manual, at p. 2. “Targets consist of people, sensitive environments, fisheries, and resources that potentially can be affected by a site.” HRS Manual, at p. 24. The “targets factor” is the only category with no maximum value.
The executive order policies could bleed into the EPA’s scoring process under the HRS. For example, one of the pathways considers “subsurface intrusion” from contaminated groundwater or saturated soil below buildings. Even if vapor intrusion impacts are not documented, the EPA must evaluate the potential for future exposure. See Technical Support Document for U.S. EPA’s Final Rule: Addition of a Subsurface Intrusion Component to the Hazard Ranking System (Nov. 2016), at p. 20. The EPA considers the distance between the highest known point of subsurface contamination and the lowest point of a building. Some sites with contaminated groundwater may be in areas impacted by tidal flow or recharge from rivers. The depth to water table may be decreasing as the groundwater level is impacted by extreme storm events and tidal flows. Depending on the time of year and the depth to groundwater, the question of “potential for future exposure” could become more complicated and problematic.
Additionally, the EPA considers the likelihood of a release of contaminants. Major storm events in certain regions of the country influence storm surges and flows in rivers, particularly those that have tidal influence. This can impact sediment distribution in a contaminated river, which can result in the release or re-suspension of contaminated sediment. Rising sea water levels and corresponding influence on rivers could also impact source control measures and lead to recontamination. Also, any contaminated sites located in and around Tribal territories or waterbodies with critical fisheries used for sustenance fishing may face heightened scrutiny under the “targets factor,” which has no maximum value.
- Potential Impacts of Biden Policies on Ongoing Remedial Activity and Five-Year Review
Pursuant to CERCLA Section 121, a remedial action must: be protective of human health and the environment, comply with applicable or relevant and appropriate requirements of federal and state law, be cost-effective, utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable, and be preferential to treatment as a principal element. See 42 U.S.C. Section 9621(a) and (b); EPA Guide to Selecting Superfund Remedial Actions, OSWER Directive 9355.0-27FS (April 1990). The National Contingency Plan (NCP) defines nine criteria to compare remedial alternatives and select a remedy that satisfies these requirements. At least three of the NCP criteria could be impacted by the executive order: long-term effectiveness and permanence of the remedy, reduction of toxicity, mobility or volume, and community acceptance.
We could see climate change impact the agency’s consideration of the long-term effectiveness and permanence of the remedy. The agency may be focused on extreme weather events in a region and may want the party performing the remedial design to evaluate this and consider whether any modifications/additions are needed.
The reduction of toxicity, mobility or volume through treatment criterion focuses on the anticipated performance of the treatment technologies. If a site is adjacent to a river that has become more prone to flooding, then a treatment technology may need to account for future transition into a veritable floodplain. If a site involves contaminated groundwater, and that groundwater is influenced by a tidal river, does this need to be accounted for differently under the backdrop of climate change? Does investigation and modeling of groundwater need to account for potential future changes in groundwater flow and levels from climate change? It is possible these difficult questions could become a more regular part of the remedial alternative analysis.
As to community acceptance of a remedial alternative, the executive order focuses on environmental justice and calls for more active engagement with state, local and Tribal government stakeholders. While public notice/comment has always played a role in the Superfund program, the executive order heightens this involvement. It is possible we will see updated policies and regulations making participation by identified stakeholders more deliberate and occur earlier in the process. The adage of “too many cooks in the kitchen” comes to mind here.
Under CERCLA Section 121(c), remedial actions are subject to review every five years from initiation of the remedial action. If the EPA determines that further action is necessary during the five-year review, then it will require such action. Given this mandatory review process, climate change and its potential impacts on the permanence and effectiveness of a selected remedy is a possible concern that is not easily managed.
- Potential Impacts of Biden Policies on Litigation
The executive order calls on the EPA to: strengthen enforcement of environmental violations with a disproportionate impact on underserved communities and create a community notification program to monitor and provide real-time data to the public on current environmental pollution in places with the most significant exposure. Since many contaminated sites are situated in or adjacent to underserved communities or Tribal lands, it is possible that the EPA will increase its information gathering and inspection efforts under CERCLA Section 104(e), as well as its notification of liability. Because the executive order boasts a sense of urgency and calls for heightened scrutiny in these areas, this could also result in an uptick in enforcement action by the EPA at contaminated sites. If potentially responsible parties (PRPs) are not signing up fast enough as work parties for remedial investigation or design, the EPA may be quicker on its draw with its enforcement options.
Additionally, entities tied to contaminated sites could see an uptick in private litigation, including cost recovery actions, toxic tort cases, and citizen suits. It is not just a matter of increased regulation and oversight of contaminated sites and industrial operations. It is also a matter of increased litigation that is borne out of these policy changes. The executive order calls on the EPA to establish a more robust and timely notification system regarding environmental pollution. Such heightened transparency regarding existing pollution and exposure to such pollution could lead to increased litigation alleging health effects, property damage and diminution in property value.
We could also see an increase in “private attorney general” actions in the form of citizen suits under various federal environmental statutes. There is public interest in climate change impacts and environmental justice. Such litigation may arise despite what is already being done to address the existing pollution and that remedial measures take time to implement. Regardless of whether a citizen suit grounded in climate change has teeth, increased litigation is costly and disruptive for PRPs trying to remediate a contaminated site and industrial facilities trying to operate within the confines of the applicable regulatory regime and their existing permits.
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Reprinted with permission from the April 8, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.