In Response to Criticism, EPA Requires More Stringent Reviews to Determine if Site Cleanups Continue to be Protective in the Long Term

Baerbel E. Schiller
Spencer Fane Britt & Browne LLP
Kansas City, Missouri

The federal Superfund program has been the subject of warranted criticism, which EPA has attempted to address with the issuance of various administrative reforms. But until recently, EPA failed to focus on the timeliness and quality of the review of site cleanups required by the Superfund statute to assure that cleanups remain protective in the long term. Now, with the issuance of new, strict guidance for implementation of five-year reviews (Comprehensive Five-Year Review Guidance (July 17, 2001)), EPA has taken some aggressive steps toward creation of a meaningful, uniform review process. However, EPA also may have prescribed a process for itself that is too burdensome for it to administer effectively.

For many years, EPA's primary Superfund priority was the start and completion of cleanup construction. As a result, EPA's resources were devoted to the accomplishment of remedial action starts and remedial action completions. Even though the Superfund statute requires a five-year review of remedies where cleanup actions result in hazardous substances, pollutants, or contaminants remaining at a site, EPA's five-year reviews were rarely, if ever, conducted on time and were repeatedly criticized for their lack of quality and followup by EPA's own Inspector General's office and by the General Accounting Office. Recently, Resources for the Future in a study on "Superfund's future," criticized the Superfund program for failing to perform timely five-years reviews of acceptable quality.

In response to such criticism, EPA has now issued a new five-year guidance. The new guidance subjects more Superfund sites than statutorily required to the five-year review process, makes reviews more stringent, and adds more process steps. By issuing a lengthy guidance and not following rule-making procedures, EPA has regulated the five-year review process by guidance and has imposed detailed requirements to govern this process - without public review and comment.

The Superfund statute requires five-year reviews if, upon completion of remedial action, hazardous substances, pollutants, or contaminants remain on site, and if the Record of Decision (ROD) was issued after the enactment of the Superfund amendments of 1986. The new guidance expands the universe of sites for which such review are required. Now five-year reviews are also mandated for pre-Superfund amendment RODS, for cleanups which will not leave hazardous substances, pollutants, or contaminants in place but which will take more than 5 years to complete, and for removal actions with contamination left in place where no remedial action has been taken or will take place. Further, the new guidance intensifies the scrutiny of the review.

Before the issuance of the recent Superfund guidance, it was EPA's practice to presume that most sites should be subject to a differential minimal five-year review. EPA then used a three-tier system. The present guidance has eliminated the three-tier approach, previously practiced, in favor of the same level of review for all sites. To determine whether the original remedy remains protective of human health and the environment, the new guidance requires that the reviewer obtain answers to three questions:

1. Is the remedy functioning as intended by the decision documents?
2. Are the exposure assumptions, toxicity data, clean up levels, and remedial objectives used at the time of the remedy selection still valid; and
3. Has any other information come to light that could call in question the protectiveness of the remedy?

In answering these questions, the reviewer has to determine if applicable cleanup levels or land use have changed or if new exposure pathways or receptors or contaminants have been identified. EPA has not only made the review process more expansive and stringent, but has also added additional process steps. Additionally, the guidance requires the participation of communities, but does not involve the private parties conducting the cleanups in a meaningful way. In fact, the guidance emphasizes that in essence all the components of the five-year review must be conducted by the lead agency without meaningful participation by private parties due to a perceived conflict of interest of such parties.

After years of criticism of its five-year review process, EPA has issued a new guidance. As this guidance expands the universe of Superfund sites subject to five-year reviews, makes the process more stringent, and adds more process steps, it seems doubtful that EPA will be able to effectively address its backlog of sites. The exclusion from any meaningful participation in the five-year review process of parties conducting cleanups may add to EPA's workload and delay the completion of five-year reviews.