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The View From The Pacific Northwest: What to Watch in Environmental Law and Policy Post-Inauguration, Part 3

Posted in Cleanup & Superfund, Fish Consumption, Natural Resources and Environment, Regulatory

Note: this is part 3 of 3 in my series of how the new administration may impact environmental law and policy in the Pacific Northwest. For background, please see Part 1 and Part 2.

Sediment Cleanup Sites
Things are moving quickly with the new administration. Since publishing Part 1 of this series on Monday, the Trump Administration announced that it had tapped state Senators Don Benton and Doug Ericksen as part of the “beachhead team” at EPA that is expected to dramatically reshape that agency. Senator Ericksen is the chair of the Senate’s Energy, Environment, and Telecommunications Committee, and has been in the middle of some of the most controversial environmental issues in Washington State. He waded into the debate over the fish consumption rule and water quality standards for toxics (drawing this letter from now-departed Region 10 Administrator Dennis McLerran), is a proponent of the Gateway Pacific coal export facility, and was the sponsor of a bill that prevented revenue generated on taxes of oil in Washington being diverted to the State’s general fund, among many other positions and actions Senator Ericksen has taken.

There are rumblings that Senator Ericksen may be in line to be appointed as the new Region 10 Administrator. If he is, we will undoubtedly see a shift a Region 10 on a number of policies and approaches to implementing the laws that EPA administers. One example to consider is how EPA will continue to manage remediation of large CERCLA sites.

The Pacific Northwest is home to two such massive Superfund Sites: the Lower Duwamish Waterway Superfund Site and the Portland Harbor Superfund Site. For both sites, EPA has issued a “Record of Decision” selecting cleanup actions that will cost hundreds of millions of dollars or more and take more than a decade to complete. As I detailed when the ROD was issued for the Duwamish Waterway, even though the remedy has been selected, there are significant uncertainties and challenges associated with that remedy, including it being based on data more than a decade old, and selection of cleanup levels that may be unattainable. With the impending change in administration at EPA, we can expect pressure from stakeholders on EPA to take a fresh look at these sites. However, even if EPA changes positions on these cleanup sites, it is important to remember that both Washington and Oregon have state laws patterned on CERCLA (the federal cleanup law) so the state agencies may not follow EPA’s change in position, although I doubt either of those states have the resources in place to administer such larger cleanup efforts.

A new regional administrator—be it Senator Ericksen or someone else appointed by Trump—will inherit more than two decades of study and activity by Region 10 at these two sites. Because both sites have had RODs issued selecting remedial approaches, and because the administrative record at those sites has been developed over decades, I’m not sure we’ll see EPA re-write or re-visit the conclusions contained in the ROD about risk to human health and the environment, remedial objectives, and selected remedial technologies. Instead, because both site will require significant study before a remedy is constructed, we may see a more subtle shift in the implementation of the cleanups. That shift could include updated data, increased reliance on less-expensive remedial technologies, or an overall slow-down of the remedial efforts.

What are my conclusions from this three day series? First, Trump is moving fast and in a bold fashion. In so doing, he is challenging my professional belief that changes in leadership often do not percolate down to the staff level at agencies because that staff usually works through multiple administrations. I think we may see some radical changes within EPA Region 10. Finally, his clear intention of reshaping EPA may set up an interesting conflict with states–where state agencies will be forced to take on issues previously managed by EPA, or where states with very different political climates (like Washington) are forced to litigate issues as the changes unfold. Stay tuned.