On August 2, EPA issued a guidance document encouraging parties to opt for “greener cleanup activities” when conducting CERCLA response actions, to reduce the environmental costs associated with these cleanups. The guidance document defines “greener cleanup activities” as “practices or technologies that reduce or mitigate the environmental impacts of CERCLA removal and remedial actions, while meeting regulatory and other cleanup requirements.” Examples include generating renewable energy on-site, using energy-efficient equipment, and choosing land management methods that do not require mowing. The guidance document builds on EPA’s 2009 Principles for Greener Cleanups, a general statement of intention to manage CERCLA cleanups in a more environmentally sustainable manner.
The guidance document encourages site managers and decision-makers to pursue greener cleanup activities during all phases of the CERCLA cleanup process, analyzing sites individually to determine which greener cleanup activities are feasible. EPA notes that the intensity of the investigation into possible greener cleanup activities will vary with the complexity of the site. More complex cleanup processes warrant a more thorough look at which greener cleanup activities are feasible. EPA notes that site managers and decision-makers can consider greener cleanup activities suggested by any stakeholder.
EPA’s guidance notes that consideration of greener cleanup activities is not a new criterion for evaluating alternatives for Remedial Actions, nor is it a new factor for evaluating Non-Time-Critical Removal Actions. EPA’s guidance does not amend the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) in any way. Furthermore, any component of a Remedial Action or Non-Time-Critical Removal Action must still meet the NCP’s threshold requirements of being protective of human health and the environment and complying with applicable or relevant and appropriate requirements (“ARARs”). Greener cleanup activities are to be evaluated in a manner consistent with CERCLA, the NCP, and other EPA guidance. When greener cleanup activities are selected as part of a response action, EPA states that they should be specifically addressed in the relevant decision document, in the same fashion as any other integral alternative being analyzed.
This post was drafted by Paul Jacobson, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.