Unearthing CERCLA: Recommendations for a Equitable Future (Part 2)

In this Part II, we will build upon the prior information provided in Part I to suggest regulatory amendment insights that are offered to strengthen resiliency for urban communities affected by contamination sites. Urban planners and economic developers need new tools that help to address primary concerns, especially those that help to democratize the expenditures of remediation and re-development. Though CERCLA provides EPA with very strong opportunities to address issues and hold polluters accountable, there is an opportunity to build new frameworks that enhance the recompense and make actions more robust to account for whole community harm inflicted.

To address modern concerns, amendments to CERCLA must offer three (3) mechanisms that bolster EPA authority, technical capacity, and redress for affected communities:

A. New Enforcement Authority

The list of hazardous substances regulated under CERCLA was created when the law was first established by Congress. The list is included in the National Contingency Plan (NCP), which provides the guidelines and procedures needed to respond to releases and threatened releases of hazardous substances, pollutants, or contaminants.

To update the list of hazardous substances under CERCLA, the EPA must go through a rigorous process that includes evaluating the scientific evidence of the contaminant’s harmful effects, assessing its occurrence or likely occurrence in the environment, and determining if regulation presents a meaningful opportunity for health risk reduction. Once the decision not include a new contaminant is made, the EPA follows necessary administrative procedures to introduce the updated contaminants, which may include proposing and finalizing rulemaking, and providing opportunities for public comments and industry stakeholder engagement.

CERCLA amendments can be used to provide the EPA with the authority to conduct health impact assessments and implement further community health protection measures, especially in urban communities where contaminants are or have been found. This new authority could be integrated into CERCLA through the addition of specific provisions that require responsible parties to assess the potential health impacts of their actions and to implement measures to protect the health of affected communities. These amendments would empower the EPA to ensure that the cleanup and remediation of contaminated sites prioritize the health and well-being of surrounding urban population centers. Most importantly, ensuring that responsible parties are held accountable for addressing any adverse health effects resulting from their actions. By incorporating amendments, CERCLA would be better equipped to address the unique environmental and public health challenges faced by urban communities affected by hazardous substances.

B. Enhance Technical Requirements

New amendments to CERCLA could provide the EPA with the authority to integrate advanced monitoring and assessment technologies to improve the detection and evaluation of environmental contamination in urban population centers. By incorporating new regulations, the EPA could mandate the use of state-of-the-art monitoring tools, such as advanced sensors and remote sensing technologies, to enhance the identification and tracking of hazardous substances in urban areas. These amendments would enable the EPA to establish a comprehensive and real-time understanding of environmental contamination, allowing for more effective and targeted response actions that serve to protect public health and the environment. Furthermore, the updated regulations could require responsible parties to deploy these advanced monitoring technologies as part of their cleanup and remediation efforts, ensuring greater transparency and accountability in the management of contaminated sites.

By leveraging these cutting edge tools, EPA would be much better equipped to address the complex and evolving environmental challenges that are faced by urban communities, while safeguarding the well-being of residents.

Any new regulations under CERCLA could provide clear guidelines for the remediation of contaminated sites, consider the specific characteristics of urban environments and the potential risks to nearby populations. These guidelines could be developed in collaboration with local communities, taking into account factors such as the presence of sensitive populations, the nature of the contaminants, and the potential for exposure pathways. By incorporating these clear guidelines into the regulatory framework, the EPA would ensure that the cleanup and remediation of contaminated sites prioritize the protection of public health and the environment, while also addressing the unique challenges faced by urban communities. Additionally, the regulations could require responsible parties to develop and implement community health protection measures as part of the cleanup process, further safeguarding the well-being of residents in affected areas.

C. Establish New Balance-Based Factors for Contamination and Community Proximity

Most importantly, CERCLA amendments should offer new balancing factors that the EPA could use to prioritize the cleanup of contaminated sites in urban areas, with the approach taking into account the nature of the contamination and the potential impact on surrounding communities.

Prior amendments to CERCLA have allowed the legislation to evolve into a risk-based process for decision-making , which provides a more nuanced and adaptable approach to the management of contamination sites. This approach involves evaluating real and potential risks to both human health and the environment posed by contaminated sites, and making responsible and informed decisions based on these evaluations. The risk-based decision-making process emphasizes the importance of conducting site-specific risk assessments to identify potential hazards, assess exposure and toxicity, and characterize the risks to human health and the environment. By integrating a risk-based approach, the EPA can ensure that cleanup efforts are prioritized based on the actual risks present at each site, and that resources are focused on reducing risks and preventing harm. This approach is essential for protecting human health and the environment, and for ensuring that cleanup and remediation efforts are conducted in a manner that is transparent, accountable, and protective of public health.

The Risk-Based Corrective Action (RBCA) model and the Contaminated Land Exposure Assessment (CLEA) model are widely used risk assessment tools for contaminated sites. The RBCA model, developed in the United States, and the CLEA model, developed in the United Kingdom, are designed to facilitate practical risk assessment and decision-making in the management of contaminated sites (Environmental Research). These models are used to quantify the risks posed by hazardous substances and to establish cleanup goals that are protective of human health and the environment. The RBCA model focuses on the development of site-specific cleanup levels, while the CLEA model is used to assess the risks associated with contaminated land and to establish appropriate remediation strategies. Both models are essential for ensuring that cleanup efforts are prioritized based on the actual risks present at each site, and that resources are focused on reducing risks and preventing harm (Int J Environ Res Public Health. 13 January 2023). Additionally, the RBCA and CLEA models are used to inform risk-based decision-making and to ensure that cleanup and remediation efforts are conducted in a manner that is protective of public health and the surrounding environment.

Under CERCLA, the EPA identifies risk and value accounting through a comprehensive risk identification and classification system for contaminated sites. This process involves the assessment of potential hazards, the vulnerability of risk receptors, and the current contamination levels to characterize the risks to human health and the environment (Int J Environ Res Public Health. 13 January 2023). The risk identification results for contaminated sites are used to categorize sites based on their potential risk and current contamination level, allowing for the sustainable management of these sites. This risk classification system is essential for informing decision-making and prioritizing cleanup efforts, ensuring that resources are focused on reducing risks and preventing harm. The EPA's risk-based approach to decision-making at contaminated sites involves the identification of potential hazards, the assessment of exposure and toxicity, and the characterization of risks to human health and the environment to make informed decisions. This process is critical for protecting human health and the environment, and for ensuring that cleanup and remediation efforts are conducted in a manner that is transparent, accountable, and protective of public health.

Cleanup plans are conducted through various mechanism, including “removal” or “remediation” under CERCLA. To accomplish these tasks, the EPA may conduct the response itself, compel the responsible party to perform the work, or enter into a settlement with the responsible party to perform the work. NCP outlines the procedures and standards for remediation, which agencies must follow when cleaning up sites. CERCLA also establishes liability for the cost of responding to releases of hazardous substances and provides for the recovery of response costs from responsible parties.

To strengthen the EPA's ability to implement cleanups that protect human health and the environment, new regulatory recommendations could be considered. To strengthen the EPA's ability to implement cleanups that protect human health and the environment, new regulatory recommendations should be considered, including:

1. Expedite Responses in Overburdened Communities: New measure should be included in CERCLA that expedites the response to hazardous substances in communities that are historically-underserved and overburdened by contamination (Kilpatrick, Townsend & Stockton, LLC).

2. Enhance Community Engagement: New regulations should strengthen community engagement in the cleanup process to ensure that the concerns and needs of affected community members are considered, especially the most vulnerable which tend to experience contamination at higher rates (Int J Environ Res Public Health, 29 October 2019). These communities’ concerns must be prioritized and addressed effectively.

3. Proximity Attenuation and Consideration: CERCLA amendments must develop specific criteria that prioritizes cleanup efforts based on both the level of contamination and proximity to vulnerable communities. These amendments would help to ensure that the most at-risk areas are addressed promptly and comprehensively.

4. Increase Funding for Cleanups in Historically-Underserved Communities: CERCLA amendments must be designed to allocate additional funds for the cleanup of sites in vulnerable communities. This additional allocation of resources will help to ensure that these areas receive the necessary attention, and alleviate additional challenges that community and civic development organizations face in remediation initiatives.

5. Environmental Justice Impact Assessments: CERCLA amendments must offer new tools for conducting thorough environmental justice impact assessments as a part of the cleanup planning process. These assessments will create new scorecards for identifying, understanding, and mitigating potentially disproportionate impacts on vulnerable and under-resourced communities.

The history of CERLA reflects its evolution as a critical tool for addressing hazardous waste sites and their impact on public health and the environment. The EPA has utilized CERCLA to enforce the cleanup of contaminated sites, with a recent focus on addressing environmental justice concerns in overburdened communities (Nova Southeastern University Law Center). The EPA's use of community involvement to engage local residents and stakeholders at Superfund sites has been a significant aspect of CERCLA implementation, emphasizing the importance of public participation in the cleanup process.

In light of this, it is imperative to consider enhancements to the EPA's authority under CERCLA to further protect human health and the environment. The recommendations for these enhancements include expedited response in overburdened communities, enhanced community engagement, and specific criteria to prioritize cleanup efforts based on the level of contamination and the proximity of sites to vulnerable communities. These measures aim to ensure a more balanced and equitable approach to CERCLA implementation, effectively addressing contamination while prioritizing the protection of vulnerable communities and the environment.

As we reflect on the potential for modern advancements to CERCLA legislation, it is essential to recognize the collective impact that can be achieved through collaborative efforts. I encourage readers to engage with their agency officials and advocate for the adoption of these recommendations. By working together and engaging with organizations such as GRŌ, we can actively influence legislation and encourage elected officials to undertake the necessary modern advancements to CERCLA, thereby ensuring the continued protection of human health and the environment.

Through proactive engagement and advocacy, we can contribute to the strengthening of CERCLA and its enforcement, ultimately fostering a more sustainable and equitable approach to addressing contaminated sites and protecting the well-being of all communities.

#EPARegulations #CERCLACompliance #PolicyRecommendations #CommunityDevelopment #CommunityAdvocacy #EnvironmentalPolicy #PublicHealthMatters #SustainableCommunities #EnvironmentalJustice #CommunityEngagement #RegulatoryCompliance #UrbanDevelopment #EnvironmentalImpact #CommunityEmpowerment #PolicyChange

1. “A systematic review of risk assessment tools for contaminated sites – Current perspectives and future prospects”. Mahammedi, C.; Mahdjoubi, L.; Booth, C.A.; Akram, H.; and Butt, T.E. Environmental Research, Volume 191. December 2020. <https://www.sciencedirect.com/science/article/abs/pii/S001393512031077X>.

2. “A Classification System for the Sustainable Management of Contaminated Sites Coupled with Risk Identification and Value Accounting”. Yi, S.; Li, X.; and Chen, W. Int J Environ Res Public Health. 13 January 2023. < https://doi.org/10.3390/ijerph20021470>.

3. ibid.

4. “CERCLA - EPA Sharpens CERCLA Enforcement Tools to Focus on Environmental Justice Communities”. Richardson, S.; Bullock, A; and Davidson, J. Kilpatrick, Townsend & Stockton, LLC. 14 September 2021. <https://kilpatricktownsend.com/en/Blog/Environmental-Reg-Watch/2021/9/CERCLA-EPA-Sharpens-CERCLA-Enforcement-Tools-to-Focus-on-Environmental-Justice-Communities>.

5. “The Environmental Protection Agency’s Use of Community Involvement to Engage Communities at Superfund Sites”. Zaragoza, L., Int J Environ Res Public Health, 29 October 2019. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6862660/>.

6. “EPA Enforcement of CERCLA: Historical Overview and Recent Trends”. Mintz, J. Nova Southeastern University Law Center, 41 SW.L.Rev. 645 (2011-2012).