EPA’s new Superfund director issued a memorandum to all EPA regions on June 30, 2021, addressing the consideration of the impacts of climate change on Superfund remedial decisions at non-Federal National Priorities List (NPL) sites. The memo reiterates existing guidance on how the agency and others involved in the Superfund remedial process should design for the potential that climate change may produce conditions that could adversely impact Superfund remedies. The memo references President Biden’s Executive Order 14008 that addresses climate change and environmental justice.
The June 30 memo presents itself as supplementing the existing guidance, which includes guidance that was issued in the last five years under the Obama and Trump administrations, and states that it is consistent with recommendations from a Nov. 18, 2019, Government Accountability Office report. The memo makes clear that the National Contingency Plan is the controlling set of regulations to be used in making remedy decisions. Climate resilience is not a new criteria, but resilience can be a consideration in five of the nine criteria used to evaluate remedial action alternatives prior to issuing a proposed plan for a site.
The memo also explains that climate impacts should be considered for both remedial actions under active construction and as part of five-year reviews for constructed remedies. Regions are directed to conduct a site-specific analysis of a remedial action in light of current, forward-looking information on local or regional climate and weather regimes, evaluate adaptive measures to address potential identified vulnerabilities, and implement measures that maximize the return on resources to ensure long-term integrity of the remedy. The memo references as resources the agency’s Climate Change Adaptation Resource Center which houses the agency’s 2014 U.S. Environmental Protection Agency Climate Adaptation Plan (including guidance on remediation) as well as the three updated climate resilience technical fact sheets issued in 2019 that address groundwater remediation systems, sediment sites and waste containment systems.
During the last administration, there were a considerable number of significant hurricane and flooding events in parts of the country where Superfund sites are located, including sites with remedies under construction and with constructed remedies. Following a major disaster, EPA emergency management personnel thoroughly assess the effect of the severe weather on Superfund sites in the impacted area. For instance, EPA prepared a 37-page report titled Evaluation of Remedy Resilience at Superfund NPL and SAA Sites after the very active hurricane season of 2017. Emergency management personnel found that remedies were largely intact and damage was mostly limited to surface structures like fences, signs, and pumps. Some remedies that were ongoing required more work to recover material and repair damage.
This experience demonstrates the importance of considering and addressing potential impacts of severe weather conditions in remedial design and construction. It is in no one’s interest to have to repair or redo a remedy because of the failure to design and plan for the impact of severe weather caused by climate change. While protective remedial design may be especially challenging in some Superfund sites that are particularly vulnerable to extreme weather events, these sites are not the norm. More typical Superfund sites have contamination that has migrated beneath the ground surface into soil and groundwater due to historic waste management practices and have existed through cycles of natural disasters before being addressed under the Superfund program.
Companies with responsibilities for Superfund sites and consulting firms working on Superfund sites should expect additional emphasis on addressing climate change in communications from EPA and an expectation for more documentation on the topic in plans submitted to the agency.