April 13, 2021

Could the Superfund Task Force Recommendations Be the Sole Survivor in Biden’s EPA?

Shoshana Schiller

While President Biden has made the environment a top priority for his administration, there’s one key program that the Biden Administration has been remarkably silent on and it’s the same program that was the primary focus of the Trump Administration’s reform efforts: Superfund. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) is now over 40 years old but remains one of the most important and vital federal environmental laws, requiring the cleanup of properties that have been contaminated for weeks or centuries. But as practitioners know, it also remains a flawed statute that sometimes works to impede, rather than facilitate, remedial activity. 

Just three months into his tenure as Trump’s first Environmental Protection Agency (EPA) administrator, in May of 2017, Scott Pruitt established the Superfund Task Force to “to provide recommendations on an expedited timeframe on how [EPA] can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the country.” A tall order, indeed, that resulted in the publication, two months later, of the Superfund Task Force Recommendations, a 30-page document that identified five primary goals: (1) Expediting Cleanup and Remediation, (2) Invigorating Responsible Party Cleanup and Reuse, (3) Encouraging Private Investment, (4) Promoting Redevelopment and Community Revitalization, and (5) Engaging Partners and Stakeholders (collectively, Goals). And within those Goals were 42 specific recommendations, organized by strategies, to achieve the Goals.

In the ensuing three and a half years, the Task Force held numerous listening sessions and issued quarterly and annual progress reports on achieving the Goals. There is certainly debate among practitioners as to the effectiveness of the Task Force in improving the site cleanup process, but by and large, the far-reaching objectives of the Goals and many of the recommendations are ones that are laudable and, in fact, can be implemented to achieve President Biden’s own goals. For example, several of the Task Force recommendations emphasize community engagement throughout the cleanup and redevelopment process which, if properly implemented and focused, can be a key element in supporting environmental justice initiatives. The Task Force also recommended early evaluation of Superfund sites for reuse potential so that cleanup and redevelopment can proceed in tandem. This focus on redevelopment can dovetail well with President Biden’s plans to build up and build back the United States’ industrial capacity. And many former Superfund sites are and can continue to be generators of clean energy as solar and wind farms, another initiative of the new administration. Finally, while EPA’s budget was continually reduced during the prior administration, the Task Force recommendations nevertheless made clear that cleanup of contaminated properties was one area where more government and private money and investment was needed to effectuate better outcomes, and certainly the Biden Administration will seek increased funding for the EPA in upcoming budget proposals.

As for Superfund more broadly, many of President Biden’s concerns will directly impact the program even without express intervention. The Biden Administration’s climate change initiatives may address the hundreds of Superfund sites––both those that are considered closed and those that are still going through cleanups––that are vulnerable to severe weather events, which may put nearby communities at risk from releases of hazardous substances. Similarly, there have been limited and inconsistent efforts on the federal level aimed at investigating and remediating sites with emerging contaminants such as per- and polyfluoroalkyl substances, but the Biden Administration has specifically targeted regulating these substances, and with that focused regulatory eye will come more focused cleanup directives. Finally, the Trump Administration finalized rules that lessened the financial assurance requirements on numerous industry sectors engaged in cleanup activities under CERCLA, which actions are slated for further review under Biden’s executive order freezing regulatory activity and implementation and under the Congressional Review Act.

In summary, the Biden Administration’s environmental efforts will not focus on CERCLA, and some of the prior administration’s actions may even be carried forward. Nevertheless, the attention on climate change, emerging contaminants and regulatory review will likely bring noticeable changes to the Superfund program going forward.

Shoshana Schiller

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Shoshana Schiller is a partner in Manko Gold Katcher & Fox, former chair of ABA’s Superfund and Natural Resources Damages Litigation Committee, and a frequent author and speaker on environmental issues. She handles a wide range of disputes, with particular experience in CERCLA and real estate litigation. Her writings have been cited by the United States Supreme Court and publications including the Harvard Law Review, the Georgetown Law Journal, and the Emory Law Journal.