The Gibbons law firm provided this advisory to its clients and friends today.
We recently wrote about a new memorandum from EPA’s Office of Land and Emergency Management that sets forth eleven recommendations for the agency’s regional offices on how to clean up contaminated sediments, and later covered some of the recommendations in greater detail. Here we discuss the rest of EPA’s recommendations.
EPA’s recommendations are shown below in bold text, followed by our comments and analysis.
Recommendation 6: Develop risk reduction expectations that are achievable by the remedial action. The National Contingency Plan requires EPA’s remediation goals at a given site to be protective of human health and the environment, but sometimes natural or anthropogenic background concentrations unrelated to the CERCLA release being remediated (especially for persistent contaminants associated with cancer risks, such as PCBs and dioxins) can make it impossible to achieve that goal via the cleanup. In such cases, expectations need to match reality, and the remedy should include additional risk reduction strategies (e.g., fish consumption advisories) to ensure protectiveness.
Recommendation 7: Consider the limitations of models in predicting future conditions for purposes of decision making. Environmental professionals, no less than anyone else, can forget that computers are tools that help to inform decisions, but cannot replace human judgment. Even the most sophisticated model is a simplification of the real-world processes, and its results will necessarily incorporate some degree of uncertainty.
Recommendation 8: Consider a structured adaptive management approach to response action implementation that includes using early actions, interim and contingency remedies. Sediment sites are complicated, and managers need to be flexible, learning and adjusting as more data become available. An iterative, structured approach to decision-making can work better than a process that aims for a single “right” decision.
Recommendation 9: Collect baseline contaminant trend data in all appropriate media and use monitoring data to evaluate remedial effectiveness. You can’t evaluate a remedy unless you know (1) where you started, and (2) where you’re going. Assumptions and models about the effectiveness of the remedy must be tested with data.
Recommendation 10: Collaborate with Clean Water Act (CWA) programs. There is an obvious synergy and overlap between the Superfund program and the Clean Water Act, which regulates ongoing discharges to surface waters. Permits and other CWA tools can help to prevent sediment re-contamination, while effective Superfund remedies can help in the achievement of water quality standards.
Recommendation 11: Consider authorized navigation channels in Superfund sediment sites. Decisions about remedial actions tend to focus, and properly so, on the use of the affected waterway for recreation, fishing, and wildlife, but EPA staff cannot ignore another critical use: navigation. EPA should consult with the Army Corps of Engineers to ensure that the selected remedy does not interfere with navigation.
Paul M. Hauge is counsel in the Gibbons Real Property & Environmental Department
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