EPA Administrator Scott Pruitt recently redelegated to the EPA Administrator the authority to select $50 million plus site cleanup remedies under CERCLA Records of Decision or RODs. Some years ago, such authority had been delegated to the Regional Administrators in each EPA Region. The change came on May 9, via two delegations of authority under CERCLA, one related to federal facilities and the other addressing CERCLA sites in general. Under these delegations, effective immediately, only the EPA Administrator or his Deputy (if the Administrator so chooses) is authorized to select high cost remedies. Only remedies selected in the future will be affected; this redelegation will not affect former remedy decisions.
Pruitt’s office issued a one-page memorandum to the Regional Administrators introducing the delegations. Per this memorandum, EPA will restore the Superfund program to its “rightful place at the center of [EPA’s] core mission.” The delegations are intended to “facilitate the more-rapid remediation and revitalization of contaminated sites and to promote accountability and consistency in remedy selection,” and to more directly involve the Administrator’s office in the remedy selection process. The memorandum requests that EPA Regions work with the Administrator’s Office “early on and throughout the process of developing and evaluating alternatives,” particularly for sites where the Regions anticipate that the cost of the preferred remedy will exceed $50 million. It appears that Pruitt’s office is requesting increased collaboration for all remedy selections, not just those with an estimated cost exceeding $50 million.
How this delegation will affect the review of the National Remedy Review Board (NRRB) is unclear. As part of EPA’s Superfund administrator reforms, EPA created the NRRB in 1996 to review proposed $25 million plus CERCLA remedies. This review cost threshold was recently increased from $25 million to $50 million.
The Administrator’s delegation is not likely to affect many sites. CERCLA remedies costing over $50 million make up a small fraction of all remedies selected and in general are associated with mega sites and pricey cleanups such as in the Lower Passaic River, but such high cost cleanups are not representative of CERCLA remedies.
Most CERCLA remedy selections are made near the end of EPA’s fiscal year, in September. Forcing remedies through an additional EPA Headquarters review and approval in addition to the regional review and approval process could lead to significant delays. Reviewing the documents associated with the selection of major remedies requires significant resources and expertise. Although the Administrator’s redelegation may be intended to allow for increased centralized scrutiny of costly CERCLA remedies, it is doubtful that EPA Headquarters offices will be sufficiently staffed to provide greater scrutiny than the Region afforded. Due to potential duplicative reviews by the Region and EPA Headquarters, a delay in approval for the most costly remedies seems likely.
This post was drafted by Paul Jacobson and Baerbel Schiller, attorneys in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.