United States: The Nickel Report: EPA's Superfund "Emphasis List" : Some New Questions

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly referred to as the Superfund law, directed the United States Environmental Protection Agency (EPA) to create a list of the country's most hazardous waste sites. Sites are proposed to be placed on this "National Priorities List" (or NPL as it is known to environmental law professionals) if they exceed a certain risk score, or Hazard Ranking, and added to the List if the ranking is confirmed after a formal notice-and-comment process. A detailed set of regulations called the National Contingency Plan (NCP) governs how sites placed on the NPL will be investigated, alternative remedies evaluated, and a final remedy selected and then implemented. The NPL, the NCP, and various EPA guidance memoranda have established what practitioners acknowledge is an imperfect but generally workable process in which EPA and states work with potentially liable parties to manage cleanups at NPL sites.

To address a host of imperfections in the Superfund process, the Trump administration created a Superfund Task Force which, on July 25, 2017, issued a number of recommendations for administrative reforms.1 One of the proposed reforms was the creation of an "Emphasis List" to target sites that would benefit from the Administrator's immediate attention or action. The Emphasis List was to include sites from every EPA Region and identify an upcoming milestone event worthy of special attention from the Administrator. When the List was first proposed, EPA issued a detailed set of questions and answers about the reasons for, and workings of, the List.2 The initial Emphasis List of 21 sites was issued on December 8, 2017,3 and has been revised three times since then. Sites are placed on the List when important upcoming milestone activities are anticipated, such as a potential settlement, and are taken off the List when those activities are completed. A site may be placed on the List, removed from the List and again added to the List as previous milestones are completed and new ones contemplated. Through this process, the List comprised only 16 sites as of November 2018. The Agency's development of the Emphasis List, and its ongoing effort to add and delete sites from the List, pose some new questions that deserve new answers from the Agency.

Is the "Emphasis List" an unlawful exercise of agency authority?

The NCP regulations provide the administrative law underpinnings for action at sites on the NPL. 42 U.S.C. §9605(a)(8)(A). It is fair to wonder if the new Emphasis List represents a formal change to the NCP and its requirements for managing cleanups. If so, the Emphasis List probably could not be used by EPA unless it were formally proposed in a notice-and-comment rulemaking. The NCP regulations do not contemplate a revolving list of sites that are given priority treatment based on what could be accomplished in the near term. Even if it is good policy to use the List to allocate administrative resources where fast results can be accomplished, the question remains whether this change in the program can be implemented without amending the existing NCP regulations. The types of actions proposed for sites on the Emphasis List—settlements with potentially responsible parties, completion of site investigations, conducting removal measures and starting remedial actions—are actions that EPA could take at any site on the NPL. In that sense, the placement of a site on the list does not require any new Agency authority. Nevertheless, making some sites more worthy of Agency action than others looks like a Super NPL is being created based on the exercise of the unreviewable discretion of EPA. A party aggrieved by one of the milestone activities taken (or possibly not taken) at an Emphasis List site could consider challenging the action as being inconsistent with the NCP regulations and the Administrative Procedure Act's requirements for notice-and-comment rulemaking. That might be one way around CERCLA's section 113(h), 42 U.S.C. § 9613(b), ban on pre-enforcement review of EPA's action at NPL sites. A successful challenge on these legal grounds could invalidate the List but might leave the Agency free to make the same decisions without the publicity attendant to the placement or removal of sites on the List.

Legality aside, is the use of the Emphasis List an effective tool for expediting cleanups?

From a policy perspective, there are compelling reasons for devoting scarce administrative resources to cleanup actions that will achieve the most cost-effective, immediate and significant reductions in environmental and public health risks. If the Agency maintains accurate timelines for critical path decisions at individual sites, then the placement of a site on the Emphasis List may present a valuable opportunity for reducing delays in cleanups. Then again, there is no apparent reason not to track the same timelines for all NPL sites regardless of whether or not a site is getting special "emphasis." Is the Emphasis List then an Agency determination that some sites are, for whatever reason, more important than others? Or is it simply a way to make sure that opportunities for effective action are not missed or delayed?

Is the Emphasis List a way to claim public relations credit for actions that would have been taken anyway?

The Superfund program justifiably has been criticized for the delay and expense associated with the cleanup of contaminated sites. Persistent criticism can take its toll on an agency at times in need of credit when it does good work. The Emphasis List then can provide tangible proof, as sites move on and off the List, of a mission being accomplished. But, if the actions that are to be taken at sites on the List are actions that likely would have been taken anyway, there is little legitimate reason to tout the List, and no real environmental risk reduction achieved, by the listing and delisting decisions. The fact that no additional funds are being appropriated for sites on the Emphasis List has led some observers to question whether the List actually would help expedite cleanups. The standard for measuring success, over time, then should be whether the actions taken either would not have been taken or taken much later at greater environmental cost than would be the case if the listing decision had not been made.

Will a listing have any additional value to parties already involved in a site?

The cost of delayed cleanups and delayed Agency actions is a burden imposed on companies that have been targeted as potentially responsible parties. An announcement that their site has been placed on the Emphasis List could be a welcome opportunity for expedited action and reduced transaction costs. It also could be a signal that the Agency will exercise more discretion and flexibility in its remedial decisions and thereby reduce the cost, lessen occasions for dispute and expedite the pace of site cleanups. Placement of a site on the Emphasis List may mean some enhanced Agency and public scrutiny that could be a welcome trade-off for an enhanced opportunity to make progress toward a more cost-effective cleanup.

One last question, among many others that could be asked: Will a delisting mean a return to the same old, slow, costly cleanup process?

With the Emphasis List just a year old and with sites being removed from the List only in recent months, the sample size is too small to know the answer to this question. There may be a natural tendency for the Agency to "take a breather" once the focus of enhanced Agency and public attention is off. One also needs to factor in the reasons why the site was listed in the first place and delisted later. If it was to expedite a certain regulatory action that was successfully completed, then there is just cause to classify the process as a success, assuming that there was more than public relations credit being sought by the Agency.

* * *

Setting aside questions about the policy justifications for the Emphasis List, there are good reasons for tracking sites where important decisions are imminent, and attention warranted from those who run the program and the Agency. Perhaps the Emphasis List is not needed for that, and might even detract from the need to apply the same sort of scrutiny to the rest of the active NPL sites. Prioritizing cleanup decisions to better suit the original goals of the program is a worthwhile goal. Whether the Emphasis List will help do that, and whether it will be a permanent fixture of the program, remains to be seen.


1 Superfund Task Force Recommendations, July 25, 2017.

2 Questions and Answers for the Superfund Sites Targeted for Immediate Intense Action.

3 The first update was issued on April 16, 2018, to remove two sites and add three new ones The list was revised on August 3, 2018, to remove eight sites. Then, on November 20, 2018, one site was removed and three were added.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions