The U.S. Environmental Protection Agency (EPA) was created in 1970 as industrial pollution was beginning to take its toll on the nation’s water, air, and soil. Within a few years of EPA’s creation, Congress enacted several important environmental laws, including the Clean Air Act (CAA), the Clean Water Act (CWA), and the Resource Conservation & Recovery Act (RCRA) for “cradle-to-grave” management of hazardous wastes. In 1980, the Comprehensive Environmental Response and Compensation Act (CERCLA, also known as Superfund) was established to provide federal authority to respond to releases or threatened releases of hazardous substances. Superfund was created in direct response to several large environmental disasters that unfolded in the late 1970s, including Love Canal in Niagara Falls, NY and Valley of the Drums in Kentucky. Superfund gave EPA the authority to clean up hazardous waste sites and to force responsible parties to perform cleanups or reimburse the government for cleanups led by EPA.
Superfund sites are ranked using the Hazard Ranking System (HRS). This ranking is based on available information from existing reports/documents, as well as findings from a Preliminary Assessment/Site Inspection (PA/SI), which is typically completed by the EPA. The PA/SI process can include interviews with former owners/operators, neighbors, and others familiar with the site, as well as, the collection of soil or groundwater samples to evaluate potential risks to human health and the environment associated with the Site. The ranking system uses this information and provides numerical values for situations like the likelihood for contaminant releases to the environment, waste characteristics, potential receptors, and exposure pathways for groundwater, surface water, soil, and air. Sites that score 28.5 or greater on the HRS are considered the highest priority and are eligible for the National Priorities List, or NPL. Sites that score below 28.5, are not considered for the NPL and are typically referred to as State programs. A site could also be recommended for the NPL by a State, even without an HRS score.
According to U.S. EPA, as of May 2016, there are 1,328 active sites on the NPL list and another 55 proposed sites (www.epa.gov/superfund/superfund-national-priorities-list-npl). In addition, there are another 391 sites that have been deleted from the NPL. Deleted sites are those that have completed all required response actions. Deletion of a site from the NPL does not affect responsible party liability or impede EPA’s ability to recover costs associated with additional response efforts if needed.
When EPA proposes to add a site to the NPL, it is published in the Federal Register and a public notice is issued through the local media. Interested members of the community, including the PRPs, can comment on the proposal. EPA then responds to comments received. If, after the formal comment period, the site still qualifies for cleanup under Superfund, it is formally listed on the NPL. Once it is listed, the Agency will publish a notice in the Federal Register and respond formally to comments received.
Once a Site is added to the National Priorities List (NPL), the complex and multi-phase process of Superfund cleanup begins. One of the significant early challenges in Superfund is determining the potentially responsible parties (PRPs) that may have contributed to the contamination. In any case, there may be several or even dozens of PRPs, and significant legal issues can develop associated with successor liabilities, parent-subsidiary companies, and equitable allocation. These legal issues can result in significant delays early in the process. If these issues cannot be resolved, the EPA can either step in and perform the cleanup activities (and sue PRPs), or the available PRPs may opt to perform the work, while they pursue legal action against other PRPs.
Another challenge that must be addressed early in the Superfund process is community involvement. There is always some level of community involvement required for Superfund projects, and it is recommended that it begins early in the process. One mechanism for community involvement is setting up a Community Advisory Group (CAG). The CAG is composed of a diverse group representing various community interests and other stakeholders. It provides a forum to discuss the proposed work activities, specific issues sensitive to the community, and overall community preferences for clean-up and site re-use. The challenge in any community involvement strategy is finding a reasonable solution that everybody, including the PRPs and EPA, agrees to and can implement.
The process of site cleanup in Superfund includes: evaluating the various potential sources that may have contributed to contamination, and delineating the nature and extent of any contamination emanating from those sources (Remedial Investigation or RI); evaluating potential remedial options to address contamination (Feasibility Study or FS); and designing and implementing selected remedial options (Remedial Design/Remedial Action or RD/RA).
• Remedial Investigation/Feasibility Study (RI/FS). The RI/FS phase includes one or more phases of soil, groundwater, and/or sediment investigation. During this process, the Site may be broken up into distinct areas, called Operable Units (OU). Investigation can proceed at all OUs together, or each OU could be phased and treated separately. Once the contamination is investigated and delineated, risks associated with the contamination are assessed, and remedial approaches must be evaluated (FS). The RI/FS will provide a recommended remedial approach. The EPA will then evaluate the RI/FS and will select what it believes is the most appropriate remedy. One of the challenges in this process is the typical back-and-forth with the EPA based on review and comments. This can result in disagreements, which can significantly slow down projects. Ultimately, the EPA selects the remedial approach and issues the “Proposed Plan” for public comment.
• Record of Decision (ROD). After the Proposed Plan is published and the public comment period is completed, the EPA addresses comments from stakeholders and will publish a Record of Decision (ROD). The ROD will describe the cleanup method ultimately chosen for the site and the reasons for the selection. The ROD is available to the public and explains all the activities that occurred prior to the selection of a cleanup method, and describes how the cleanup method will be protective of human health and the environment.
• Remedial Design (RD). The RD is the phase during which cleanup method(s) and approach identified in the ROD are evaluated and designed. The purpose of this phase of the project is to ensure that the remedy will be implemented in a manner suitable to achieve the remedial objectives of the ROD. At this time, there may be additional phases of investigation and pilot testing to confirm the effectiveness of the design. There also are typically several partial design documents, with comments and reviews from the EPA. The RD will be designed to remove or contain contamination in a manner protective of human health and the environment. Like the RI/FS, the most significant challenge during this process is comment-response cycles regarding the various designs and overall communications with the agencies. These will result in project delays, and increased costs. Once the RD is finalized, the EPA or PRP may provide a fact sheet and hold a briefing meeting for the public, as needed.
• Remedial Action (RA). Once the final design is approved by EPA, clean-up is initiated. Clean-up could include installing remediation systems, excavating materials, installing injection or extraction wells, and various other approaches. During the RA, there are routine communications and submittals that are dictated by the requirements of the ROD and any orders or other legal instruments.
• Completion of Construction. Upon completion of construction of the remediation system/approach, a “Completion of Construction” report is prepared. This report documents the work completed and identifies the next steps, including any additional long-term remedial activities, community outreach and plans for site re-use, long-term site management/stewardship, and other activities.
• Five-Year Review. EPA is required to conduct a review of the site every five years. The Five-Year Review includes examining site data, inspections, collecting additional samples, and discussing the clean-up activities with affected parties. It is possible that during the review, the EPA could identify issues that need to be addressed, including modifications to the clean-up activities. This could effectively re-open a site for additional work, or result in fines or other punishment if the responsible party is not following the terms of the ROD or the agreed clean-up approach.
If the site achieves the remediation goals that were identified in the ROD, it is possible to get the site deleted from the NPL list. However, getting to this point in the process could cost a significant amount of time and money, and will be fraught with challenges almost every step of the way.
As shown above, Superfund is a daunting challenge for responsible parties to manage. However, with an experienced team of professionals, the process is navigable and sites can be effectively restored for re-use. August Mack has been involved with a number of Superfund sites over the past 20 years.