Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites, when we should be focusing on air and water. Why do we keep doing this? Because the community demands it. As Peter Sandman has noted, perceptions of risk are driven only partly by the actual hazard posed. To a significant degree, those perceptions are more driven by outrage over the situation. In some circumstances, what Sandman calls outrage management makes sense, but I’m skeptical that EPA’s community engagement initiative is really about outrage management.

In any case, here’s the public policy question of the day. Does it really make sense to spend scarce environmental protection resources, not to reduce risk, but to reduce outrage?

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Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:

EPA wants to shorten the duration of RD/RA negotiation

EPA is going to use the heavy hammer of unilateral administrative orders, or UAOs, to keep PRPs’ feet to the fire and ensure that negotiations move quickly.

PRPs will likely agree that shortening the duration of negotiations would be a good outcome in the abstract – but achieving it by greater use of UAOs? I don’t think so.

I can only wonder if EPA has even considered the impact of the Burlington Northern decision here. Is this a perverse reaction from EPA? A metaphorical throwing down the gauntlet to PRPs? It certainly feels that way.

I have a different suggestion, if EPA truly wants to shorten negotiations. First, acknowledge Burlington Northern and compromise on the merits in those great majority of cases where there are legitimate divisibility arguments. Second, stop acting like the last bastion of command and control regulation. Set cleanup standards and then, to the maximum extent permitted by existing law, let PRPs clean up to those standards, without micromanaging every detail of the cleanup process.

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As a confirmed optimist and believer in technology, I’ve long thought that we can meet the challenge posed by global climate change – as long as we implement the right policies to provide incentives to develop the necessary technologies. Having the wide engineering knowledge that being a lawyer – as well as one of six political science graduates from MIT my year – provides, I have assumed that nanotechnology would play a substantial part in whatever the ultimate solution turns out to be.

Climate change is a big problem and we’re not there yet – especially since the incentives aren’t yet in place. Contaminated site remediation presents a more manageable set of problems, and nanotechnology finally does seem to be making significant headway in the remediation arena. According to a report just published in Environmental Health Perspectives, in-situ nanotechnology can reduce soil and groundwater remediation costs, as well as help to reach the cleanup end point more quickly. The study identifies a number of nano-scale materials that are being used for remediation, but the most common at this point and the one discussed in most detail in the study is zero valent iron.  The study is not definitive, but is based on a review of 45 sites at which nanotechnology has been used or is in process.

In conjunction with the study, the Project on Emerging Nanotechnologies has also produced a map showing the location of sites at which nanotechnology has been used as a remediation technology and providing some information about each site.

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Earlier this month, the New Jersey legislature enacted a privatized system, modeled on Massachusetts approach, for cleaning up state superfund sites. Score one for truth, justice and the American Way. If that were all, the NJ legislation might be worth just a brief mention, but I thought it noteworthy that the Greenwire article concerning implementation of the program focused not on the spread of the privatized program approach, but on the outrage being mustered by the environmental community at the sell-out to polluters by the NJ government.

I like to think that I’m not naïve on such matters, but I find such articles unspeakably depressing. Why must there be such a knee-jerk reaction to what is unambiguously progress, allowing cleanups to proceed more quickly and cost-effectively, and saving governmental resources for the places where they are really needed? 

For those who care, the statistics on the Massachusetts program demonstrate that, although MassDEP audits frequently find paper violations and sometimes require more field work to assuage MassDEP concerns, additional cleanup is almost never required as the result of audits. In other words, private cleanups do the job and protect public health and the environment.

I’ll therefore get on my soapbox once more and ask why Lisa Jackson, late of NJ, and now with a really bully pulpit, cannot praise the NJ statute? Rather than being defensive about it, she could even suggest it as a model for appropriate changes to the federal Superfund statute, CERCLA.

I can dream, can’t I?

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As pretty much everyone knows, in order to improve its prospects for passage, the Senate added certain tax provisions to the financial bailout bill – also know as the Emergency Economic Stabilization Act of 2008, or H.R. 1424 – enacted earlier this month. One of the provisions included in the EESA was an extension of the brownfields tax incentive.

The brownfields tax incentive, originally enacted as part of the Taxpayer Relief Act of 1997, and codified as Section 198 of the internal revenue code, allows developers to immediately expense the cost of remedial work at brownfields sites, rather than having to capitalize such costs. The incentive actually expired as of December 31, 2007, but the EESA provision extends that date to December 31, 2009.

Historically, this tax incentive has been used only rarely used. In a report from 2007, the Congressional Research Service identified several possible reasons why. One issue is that the taxpayer must obtain certification from the relevant state environmental agency that the property qualifies as a brownfields site. However, more relevant here, the report noted that Congress’s failure to make the provision permanent – it has expired and been renewed several times at this point – is a significant factor in its limited utility. 

Given that the EESA renewal of the provision only continues this stop and start quality, it is not obvious that the provision will find any greater utility now than previously. Nonetheless, for those who are aware of it and whose property qualifies, extension of the provision is certainly good news.

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