EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C'est La Meme Chose


EPA recently released two guidance documents relevant to Superfund practitioners.  One establishes revised procedures regarding how EPA will manage negotiations with PRPs.  The second updates EPA's guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.

The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face, but when you step back and take a big picture look, you have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a settlement. 

Spoiler alert: There is.

The Superfund Alternative Approach Guidance just seems pointless. It basically says that everything about how negotiations will be handled and cleanups will be performed at Alternative Sites – those which could be listed on the NPL, but which are not – will be the same as if the sites were on the NPL. The only aspect which is different is the listing itself; the stigma of NPL listing is avoided. I don’t deny that that’s a benefit, but it doesn’t go to the heart of the problems with the federal Superfund program.

I feel like a broken record, but isn’t it time for a fundamental reevaluation of CERCLA? Why does CERCLA remain the last bastion of pure command and control regulation? Without an actual Superfund and with declining budgets at EPA, why not try what states have already successfully implemented – true privatization of the entire program?


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Foley Hoag LLP - Environmental Law on:

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