Climate Change Comes for Remedial Measures – Planning for Corrective Action under Climate Threats and EPA Recent Guidance

Four years ago, President Biden ran on an ambitious climate action agenda and the Biden/Harris Administration, from the first day in office, has a laser focus on tackling the “climate crisis,”  On January 27, 2021, the Administration issued Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, with ambitious goals, including building a clean energy economy, reducing emissions, increasing resilience, advancing environmental justice, and achieving  true energy security,

EPA’s October 2021 Climate Adaptation Plan: identified priority climate actions that EPA planned to take over four years to respond to the Executive Order and the Administration’s goals. Subsequently, each of EPA’s major offices developed implementation plans describing how each program and region will integrate climate change into its programs, policies and procedures. These twenty implementation plans provide specific actions to advance human health and the environment under future climate conditions.

With a potential change in administration looming, EPA has engaged in a flurry of activity designed to meet the goals of the Climate Adaptation Plan, including guidance designed to ensure resilience of remedial activities for specific CERCLA, RCRA and TSCA programs:

  • CERCLA Non-Federal NPL Sites -On June 30, 2021, EPA’s Office of Superfund Remediation and Technology Innovation (OSRTI), issued a memorandum (Consideration of Climate Resilience in the Superfund Cleanup Process for Non- Federal National Priorities List Sites) to provide regional offices with a “blueprint for CERCLA implementation” with respect to climate resilience for non-Federal National Priorities List (NPL) sites. This was followed an October 2023 “Engineering Forum Issue Paper” for conducting vulnerability assessments, and dedicated webpages for resilience measures, andadaptive capacity.

  • RCRA Corrective Action- EPA’s February 6, 2024 memorandum (Integrating Climate Change Adaptation Considerations into the Resource Conservation and Recovery Act Corrective Action Process) provides recommendations to EPA regions, states and territories for working with facility owners or operators to “integrate climate change adaptation considerations into the RCRA corrective action process.”Climate change considerations are to be included at every step of the RCRA corrective action process from initial facility assessments to remedy selection, implementation and long-term care.

  • TSCA Section 6(e) PCB Approvals - Still in its draft form, EPA’s December 12, 2023 memorandum (Implementing Climate Resilience in PCB Approvals), clarifies and provides guidance for a determination of no unreasonable risk of injury to health or then environment for PCB cleanup, storage and/or disposal approvals. The TSCA Guidance “provides that such determinations must “be inclusive of not only current but future conditions at sites and facilities vulnerable to potential adverse climate change impacts.” As compared to the generalities of the RCRA and CERCLA guidance, the TSCA Guidance contains a recommended methodology for assessing climate vulnerability and resiliency of remedial measures. The TSCA Guidance also provides a set of approval conditions” that support EPA’s determination of no unreasonable risk (including the right to revoke or modify the approval if later found not to meet the no unreasonable risk standard based on climate resilience measures).

While each of these documents is specific to the regulatory program and vary in the level of detail, from a short four-page RCRA guidance document to the detailed methodology provided in the TSCA Guidance, uniform concepts emerge that could be applied to any site undergoing remedial action:

Description of Climate Change Impacts: Climate hazards to be considered include extreme wet weather events, changing wind patterns, temperature fluctuations, increased precipitation, sea level rise, storm surges, inland and coastal flooding, bank and shoreline erosion, changes in groundwater levels, drought, increased risk of wildfires, landslides and permafrost thaw. TSCA guidance says to use “conservative, worst case scenarios.

Climate Vulnerability Screening. EPA calls for performance of a high level “vulnerability assessment” to determine if a site or facility is vulnerable to one or more climate hazards using publicly available screening tools. Some examples of considerations may include whether the geographic area in which the site is located is subject to temperature variations might impact the vulnerability of corrective actions; impacts of long-term precipitation patterns on groundwater elevations and fate and transport of contaminants and influences of sea levels rise on final corrective action remedies. Both the screening and assessments should use a future time frame that is associated with the anticipated lifespan of the remedial infrastructure, with “default” time frames ranging from 30 years (CERCLA/RCRA) to 100 years (TSCA).[1] If no climate risks are identified, no further evaluation is needed.

Climate Vulnerability Assessment. A climate vulnerability assessment is a deeper analysis into remedy vulnerabilities and existing adaptation measures over the relevant time period. The goals of the vulnerability assessment are to identify with specificity future changes in climate conditions that should be included in remedial assessment; whether adaptive measures are necessary for site resilience; and ensure effectiveness of the remedy under future climate conditions. In general, a climate vulnerability assessment includes a detailed review of the site and remedy components, performing site-specific projections of climate conditions, and assessing how these changes may affect remedy protectiveness. The focus of the assessment is guided by current or planned site infrastructure, the extent to which site and remedy analyses incorporated forward-looking climate data, the type of contamination and structure of waste at the site, and the remedy phase. As with the Climate Vulnerability Screening, the Assessment should be an appropriate time frame for the type of remedy implemented. EPA anticipates that the CVA will be a collaborative effort with subject matter experts, site managers and technical staff and climate, remediation and GIS technical experts.

Climate Resilience Measures. After specific vulnerabilities are identified, measures should be identified  to prevent or significantly reduce the risks to the remedial measures. EPA provides examples of potential resiliency measures including physical barriers impervious to the climate threat; locating engineering controls to locations unlikely to be impacted by the climate threat; utilizing flexible or adaptive remedial measures to modify based on climate threats; advance warning systems to respond to weather events; and a program, with contingency plans, to continue to monitor impacts of climate change.

While each of the various guidance documents have the same goals – greater understanding of climate risks and resiliency measures to address such risks - the guidance documents differ on the level of detail provided. The RCRA Guidance is brief and refers to the CERCLA Guidance to provide more meat to the climate evaluation process. The CERCLA Guidance takes a deeper dive but contains a flexible approach. In comparison, the TSCA Guidance contains a step-by-step methodology to be undertaken by EPA directors in assessing the climate risks as part of the “no unreasonable risk” determination under TSCA Section 6, looking less like informal guidance and more like a formal regulatory program.[2]

The consideration of climate risks in developing remedial actions has been inconsistent for both federal agencies and the regulated community despite EPA’s statements in the guidance documents that such documents merely reflect standard practice. However, with the light shining on climate issues, it is likely that there will be an increased focus on climate issues. Further, in any event, he consideration of climate hazards should be a good business practice to preserve the value of the expenditures on remedial action. However, whether these guidance documents have a quantifiable impact on current practices is unclear. Relevant questions include:

  • While anticipating climate risks on a going forward basis is practicable and advisable, what happens to long-ago remedial actions that may include in-situ remedies? Would EPA require reopening of those completed remedial actions?
  • Are there certain remedial measures that will be foreclosed by predictions of climate risks 100 or more years in the future? The TSCA Guidance appears to wade into this issue by stating that “EPA should give preference to short-term climate resilience measures that remove contamination and have long-term permanence.” Will other programs follow TSCA’s lead?
  • What is the appropriate timeframe for review – the 100-year period suggested by the TSCA Guidance or the 30-year period noted in the CERCLA Guidance? Does the science support a 30-year time frame, let alone a 100-year time frame? What is the probability risk for these time frame? Is there a probability that conditions could be better vs. worse? Are there some “risks” that are more difficult to predict than others – e.g., rain patterns vs. forest fires.
  • Predictions are just that – predictions (especially with a potential 100-year time frame). What happens when climate risks increase despite conducting the analysis called for under the guidance documents? What if the climate risks decrease? Does the remedy need to be reopened?
  • Although the RCRA and CERCLA guidance documents appear to take a flexible approach, can one expect a move toward the TSCA Guidance’s more structure and prescriptive methodology or is the TSCA Guidance more stringent based on the constituents being addressed – PCBs[3]?
  • What can be expected if there is a change in administration? Is most of the climate guidance commonsense and reflective of industry practices or will the words “climate” doom its continued existence?

[1] The TSCA Guidance appears to promote a prediction range to at least 2100 and, at times, promotes a 100-year time frame.

[2] Draft of the RCRA and TSCA Guidance Documents were quietly released on December 12, 2003, inviting comment by electronic mails as compared to a formal comment period. Although the RCRA Guidance has been issued in its final form, the TSCA Guidance is still outstanding, Interestingly, not only are there concerns that the TSCA Guidance’s detailed methodology warrants Administrative Procedures Act rulemaking, but also that the TSCA Guidance is a “new interpretation” of the “no unreasonable risk” standard applied for approval of a PCB activity. As stated in a comment letter submitted by USWAG, “[f]or the first time, EPA announces that the determination of whether an ‘unreasonable risk to health or the environment” ‘exists “is to be inclusive of not only current but future conditions at sites and facilities vulnerable to potential adverse climate change impacts.’” United Solid Waste Work Group, Comment Letter to Carolyn Hoskins, Office of Resource Conservation and Recovery, Environmental Protection Agency (Jan. 26, 2024), Inside EPA, USWAG Says EPA Must Withdraw TSCA Climate Guide For PCB Cleanups (February 1, 2024).

[3] Of course, there is some question whether PCBs create a different risk than other hazardous substances. The TSCA PCB program predates Superfund and, arguably, many of the CERCLA hazardous substances present a risk profile worse than PCBs.

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