Superfund Program Likely to Receive Fresh Scrutiny in 2021

January 11, 2021
Garrett D. Trego, Esq.
MGKF Special Alert - Federal Forecast 2021

Since taking office in 2017, the Trump administration’s U.S. EPA leadership consistently named the Superfund site remediation program as a priority, convening the Superfund Task Force, listing priority sites with the highest potential for redevelopment or reuse, and delisting or partially delisting an increasing number of sites from the National Priority List during the term.   

Like programs across the agency, the Superfund program is likely to see significant directional changes under the new Biden administration, with new EPA Administrator Michael Regan, formerly the Secretary of North Carolina’s DEQ and an Environmental Defense Fund regional director, taking charge.  Though the Superfund program is often immune to the drastic policy and enforcement shifts that may be experienced in some other environmental programs, stricter scrutiny, nevertheless, may be felt at some sites where the cleanup is federally-driven.  New federal initiatives and areas to watch include:

  • Reestablishing climate change resilience as a goal and review criteria for the establishment of remedies;
  • Directly and indirectly including environmental justice concerns and initiatives among the factors driving remedial and removal action decisions;
  • Increasing attention to perfluorinated chemicals and other emerging contaminants, as federal maximum contaminant levels are likely established for these constituents and states move to adopt their own standards; and
  • Opening additional opportunities for third party participation, particularly in light of the United States Supreme Court’s 2020 decision in Atlantic Richfield v. Christian (discussed in the MGKF Litigation Blog here) which may have opened doors for third party, state court lawsuits seeking additional remedial work at Superfund sites but may also require enhanced EPA coordination to achieve effective relief.

Change may come slower in the Superfund program, but broader policy changes from the EPA across other programs will provide clues for shifting priorities in the Superfund arena.