Will Increased Enforcement Speed Cleanup of Superfund Sites in EJ Communities?

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

Earlier this month, EPA circulated a memorandum on “Strengthening Environmental Justice Through Cleanup Enforcement Actions.”  It could significantly increase the volume of CERCLA enforcement actions.  More importantly, if implemented appropriately, it could help reduce the risks posed by Superfund sites in overburdened EJ communities. 

The trick of course will indeed be how it’s implemented.  If this becomes just another in a long line of screeds on the subject that all Superfund cleanups take too long, it will accomplish nothing for cleanups in general or EJ communities in particular.  That why, to me, two sentences in the memo are key:

EPA uses mapping and screening tools, including EJSCREEN, in combination with local knowledge to help identify overburdened communities that may be disproportionally impacted by adverse health and environmental effects.

[EPA will] review PRP-lead sites designated as “human exposure not under control” (HENUC) to determine if enforcement actions can effectively reduce human exposure.

In other words, the key to the success of this initiative is EPA’s wise use of data.  Historically, there has been almost no connection (very minor rhetorical exaggeration) between the risk posed by a superfund site and the amount of time and money spent to remediate it.  EPA should be using data to identify the sites that really pose immediate – not just “imminent” – hazards to human health, particularly in overburdened EJ communities.  When it does so, it can focus time and resources on the sites that meet those two criteria and, where necessary, take enforcement action against PRPs who are slow in addressing such significant risks to EJ communities.

If that happens, then EPA can take a bow and I’ll applaud.  However, if in the next six months I hear from an EPA attorney that the Assistant Administrator has told staff that cleanups are just taking too long, then I’ll know that it’s just Superfund business as usual – and that would not be a good result.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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