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January 30, 2017 Practice Points

EPA Issues New Directive on Remediation of Contaminated Sediments

A new memorandum seeks to clarify earlier guidance documents based on the agency’s experience at almost 70 "Tier 1" sediment sites.

By Paul M. Hauge – January 30, 2017

From Portland Harbor in Oregon to New Jersey’s Passaic River, contaminated sediment sites present unique challenges. While the Environmental Protection Agency (EPA) issued guidance documents for addressing contaminated sediment sites in 2002 and 2005, it has since learned many lessons in addressing dozens of such sites. A new memorandum from the EPA’s Office of Land and Emergency Management (OLEM) (formerly the Office of Solid Waste and Emergency Response) sets forth 11 recommendations for improving the way the agency’s regional offices handle the complex process of cleaning up contaminated sediments.

The new memorandum, designated as OLEM Directive 9200.1-130 and authored by Assistant Administrator Mathy Stanislaus, was sent to EPA’s 10 regional administrators on January 9, 2017. It builds on two earlier guidance documents (Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites (2002) and Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (2005)), as well as a 2016 Government Accountability Office (GAO) report, Superfund Sediment Sites: EPA Considers Risk Management Principles but Could Clarify Certain Procedures. (These are just a few of the many guidance documents the EPA has produced on contaminated sediments.) It does not supersede existing EPA policy, but instead seeks to clarify the earlier guidance documents based on the agency’s experience at almost 70 “Tier 1” sediment sites.

The 2016 GAO report emphasized “technical complexities and stakeholder involvement” as the two principal challenges facing the EPA in its management of sediment cleanups. Thus, the recommendations in the new memorandum focus on improving the collection and use of environmental data and the communication of risks, expectations, and results to the public. The memorandum notes that its recommendations are especially relevant at sites with bioaccumulative contaminants such as PCBs, dioxins and furans, and methyl mercury, where decisions are often driven by assessments of risks associated with the consumption of contaminated fish and shellfish.

The recommendations are generally of the common-sense variety, e.g., reduce serious risks early in the process, collect data that will be useful in framing and evaluating the effectiveness of remedial actions, and be aware of other federal programs that can help (the National Pollutant Discharge Elimination System program under the Clean Water Act) or complicate (federally authorized navigation channels) the remediation process. Several recommendations are notable, however, in that they focus on the development and management of “risk reduction expectations.” Thus, EPA regional offices are encouraged to identify monitoring endpoints that can be used to evaluate the achievement of remedial objectives, and to select realistic and achievable risk-reduction goals. Another recommendation highlights the limitations of models in predicting future conditions. Taken together, these recommendations promote a reality-based, data-driven approach to remediation that recognizes the value of specific, measurable goals.

Paul M. Hauge is counsel with Gibbons P.C. in Newark, New Jersey.

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