The Superfund Program Goes Green – Part I

The Environmental Protection Agency (EPA) is addressing the impact of climate change at Superfund sites through three main initiatives: (1) climate resilience, (2) green remediation, and (3) environmental justice. This article, which is the first of three, provides some background on EPA’s focus on Superfund climate resilience and suggests how these initiatives may present an opportunity for better approaches to remedy decision-making.

As climate change continues to drive extreme weather events, remedies at Superfund sites are becoming increasingly vulnerable to destabilization. According to a 2019 report by the Government Accountability Office (GAO), over 60% (945 of 1,571) of nonfederal National Priorities List sites are in areas at risk of being impacted by extreme weather events driven by climate change. Many of the sites are vulnerable to multiple risks: flooding risks were identified at 783 sites, and wildfire risks were identified at 234 sites. Finally, 187 sites are vulnerable to storm surges from Category 4 or 5 hurricanes.

The number of Superfund sites that have already been compromised by climate change highlights the urgency of this problem. See Evaluation of Remedy Resilience at Superfund and SAA Sites, EPA Office of Land and Emergency Management (2018). For example, flooding from Hurricane Harvey destroyed an interim armored cap at the San Jacinto River Waste Pits, causing dioxins to flow into the San Jacinto River, which is a public water supply. See id. at 21. Shortly after, EPA released a record of decision (ROD) explaining that “[t]he area has a high threat of repeated storm surges and flooding from hurricanes and tropical storms, which if the material was left in place, could result in a release of hazardous substances.” See San Jacinto River Waste Pits, Record of Decision, U.S. EPA Region 6, October 2017. The ROD further explains that, for the site to be protective of human health and the environment in the long term, the waste materials must be completely removed. See, id. Wildfires, particularly in the Western U.S., also pose threats to remedial infrastructure at Superfund sites and to the firefighters battling the flames, in terms of potential toxic air emissions and other hazards. See, e.g., Michael Kodas & David Hasemyer, Wildfires fueled by climate change threaten toxic Superfund sites, NBC News (Dec. 23, 2020) https://www.nbcnews.com/news/us-news/wildfires-fueled-climate-change-threaten-toxic-superfund-sites-n1252156. Simply put, disaster-related hazardous releases, particularly in population-dense areas, present threats that could be as complex and costly as the original site cleanup.

EPA, meanwhile, is beginning to evaluate remedy protectiveness in light of extreme weather events, for remedial actions under construction and five-year reviews. EPA’s “Superfund Climate Resilience” initiative is intended to provide a set of tools to evaluate, among other things, (1) the vulnerability of already-implemented remedies to extreme weather events, (2) the adaptive capacity of site remedies, and (3) the implementation of potential resiliency measures. Most recently, on June 30, 2021, EPA’s Superfund director directed all EPA regions to conduct “a site-specific analysis of the remedial action in light of current, forward-looking information on local or regional climate and weather regimes.” See Memorandum: Consideration of Climate Resilience in the Superfund Cleanup Process for Non-Federal National Priorities List Sites, from Larry Douchand, Director of Office of Superfund Remediation and Technology Innovation, to Regional Superfund National Program Managers (June 30, 2021). Additionally, it directs regions to evaluate adaptive measures that increase the system’s resilience to climate change to ensure protectiveness of human health and the environment. EPA has also developed a series of “climate resilience technical fact sheets” which are “designed to help project managers and other cleanup stakeholders identify, prioritize and implement site-specific measures for increasing remedy resilience to climate change and extreme weather events.” Climate Resilience Technical Fact Sheet: Groundwater Remediation Systems, October 2019 Update; Climate Resilience Technical Fact Sheet: Contaminated Sediment Sites, October 2019 Update; Climate Resilience Technical Fact Sheet: Contaminated Waste Containment Systems, October 2019 Update; see also Climate Change Adaptation Technical Fact Sheet: Landfills and Containment as an Element of Site Remediation, May 2014.

Looking forward, potentially responsible parties (PRPs) at Superfund sites should be prepared for EPA and other regulatory agencies to re-evaluate whether existing remedies are sufficiently resilient to extreme weather events and whether additional protective measures are necessary. Additionally, climate resilience criteria will play an increasing role in EPA’s remedy selection process at Superfund sites that are still in the remedy selection process. While in concept this programmatic effort seems like one more regulatory hurdle to manage, “remedy resilience” as ultimately defined could actually provide an important platform and opportunity to argue for more sensible objectives and less intensive and expensive technologies so as to accelerate site cleanup and reuse.