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The Superfund Program Goes Green – Part II

February 11, 2022

As the Biden Administration continues to prioritize climate change mitigation, EPA has renewed its focus on more environmentally friendly remedies at Superfund and other cleanup sites. In Part I of this series, we discussed EPA’s “Superfund Climate Resilience” initiative, aimed at evaluating remedy protectiveness in the face of extreme weather events. In this second installment, we discuss a likely re-boot of EPA’s “Greener Cleanups” initiative, which currently is focused on reducing the environmental footprint of Superfund cleanups by factoring in the significant resource consumption associated with heavily engineered remedies.

The Greener Cleanups initiative is built around the concept of “Green Remediation” – the practice of “considering all environmental effects of remedy implementation and incorporating options to minimize the environmental footprint of cleanup actions.” EPA has identified five core objectives for Greener Cleanups:

  1. Minimize total energy use and maximize use of renewable energy
  2. Minimize air pollutants and greenhouse gas emissions
  3. Minimize water use and impacts to water resources
  4. Reduce, reuse, and recycle material and waste
  5. Protect land and ecosystems

See Principles for Greener Cleanups, U.S. EPA, Office of Solid Waste and Emergency Response (Aug. 27, 2009), at 4 (“2009 Principles”).

To achieve these objectives, parties are encouraged to evaluate Best Management Practices (BMPs) that may be appropriate for a given site. EPA publishes fact sheets discussing BMPs for various cleanup phases and scenarios, including reliance on renewable energies for in situ soil and groundwater remediation. The American Society for Testing and Materials also maintains a Standard Guide for Greener Cleanups, ASTM E2893-16e1, which provides another tool for designing and implementing Green Remediation strategies. And, to assist with analysis of complex sites, EPA has published a detailed technical support document. See Methodology for Understanding and Reducing a Project’s Environmental Footprint, U.S. EPA, Office of Solid Waste and Emergency Response, EPA 542-R-12-002 (Feb. 2012). The Methodology identifies key metrics for complex environmental footprint analysis (e.g., tons of carbon dioxide equivalent emitted) and explains how to calculate these metrics. Id.

Thus far, EPA’s Greener Cleanups initiative is focused narrowly on reducing the environmental footprint associated with remedy implementation. The Agency has been quite clear that it does not intend to add any consideration of the environmental footprint of a site’s future use to the CERCLA decision-making process. See, e.g., 2009 Principles at 2 (“[G]reener cleanup assessments generally are not designed to provide information on the environmental impacts associated with future uses of property.”). The Agency also has said that the Greener Cleanups initiative is not intended to amend the National Contingency Plan (NCP) in any way. See Memorandum: Consideration of Greener Cleanup Activities in the Superfund Cleanup Process, from James Woolford, Director of Office of Superfund Remediation and Technology Innovation, to Regional Superfund National Program Managers (Aug. 2, 2016), at 2. Yet, at the same time, EPA has acknowledged that the environmental footprint associated with remedy implementation is relevant under the NCP in evaluating the short-term effectiveness of remedial alternatives. See Att. 2 to 2009 Principles, at 4.

Given the Biden Administration’s focus on climate policy, we anticipate more clarity and a more comprehensive approach going forward. The President’s Executive Order 14008 on climate change prioritizes “build[ing] resilience, both at home and abroad, against the impacts of climate change.” The Administration is also focused on promoting the clean energy sector. See Executive Order 14057. In addition, the Administration’s Infrastructure Bill earmarks significant funding specifically for cleanup-related initiatives, including $3.5 billion for Superfund cleanups and $1.5 billion for community-led brownfields revitalization projects.

Given these policies and the increasing focus on climate change mitigation and adaptation at all levels of government and in the private sector, sustainability considerations are going to play a role in all aspects of remedy-related decision making – whether EPA takes formal action or not. Many communities where these sites are located are going to demand nothing less, and mobilized communities can leverage the NCP’s “community acceptance” criterion to impact cleanup-related decision-making.

The repurposing of cleanup sites for renewable energy production is the current exemplar of a more holistic approach to greener cleanups. In October 2021, EPA reported an 85% increase in installed solar capacity at landfill sites in the last five years, as well as implementation of renewable energy projects at 74 Superfund sites to date. See Re-Powering America’s Land Initiative: Project Tracking Matrix, U.S. EPA, Office of Land and Emergency Management (Oct. 2021), at 4, 8. Ultimately, Superfund remedies should capitalize on the synergy between sustainable cleanup strategies and intended final land uses. Final uses inform cleanup objectives, and hence, the required intensity and footprint.

Of course, different sites will present differing opportunities and challenges. For some sites, remedy resilience and greener cleanup objectives will be complementary – consider a solar installation at a rural landfill site. At other sites, remedy selection may have to prioritize resilience over environmental footprint. For example, a water treatment plant at an isolated, high-elevation, seasonally inaccessible mine site needs a reliable source of power and facilities resilient to major weather systems and avalanches. Wind or solar power in this circumstance may not be an option.

This series, thus far, has focused on these two aspects of sustainability – remedy resilience and environmental footprint. In Part III, we will focus on the third leg of the sustainability tripod: environmental justice considerations in remedy selection and five-year reviews. Aligning all three factors to support good decision-making in disadvantaged communities – whether isolated rural towns or congested urban centers – is complicated. One thing is clear, though, and that is the need to move beyond over-engineered remedies with unachievable cleanup objectives that, at enormous expense, fail to protect, support, or enhance the communities where these sites are located.