Continued federal funding for the cleanup of toxic contamination in the Great Lakes was ensured on October 8, 2008 when President George W. Bush signed the Great Lakes Legacy Reauthorization Act of 2008 (Reauthorization). However, the United States Environmental Protection Agency (EPA) is now reviewing how new language regarding the requirements of potentially responsible parties (PRPs) should be applied. The outcome could result in a chilling effect on the use of available funding.
The Reauthorization continues the work of the Great Lakes Legacy Act (Legacy Act), which provides funding for remediation of contaminated sediments in the Great Lakes Areas of Concern (http://www.epa.gov/glnpo/aoc/). Despite an initial effort to triple the amount, the Reauthorization allocates the same level of funding as previously, $54 million per year, through 2010. Of that $54 million, $50 million is earmarked for remediation projects, $3 million for research and development of innovative remediation approaches, technologies, and techniques, and $1 million is designated for public outreach. When used properly, these funds provide an economic boost for urban waterways and associated redevelopment, particularly in instances where it is difficult to pinpoint any single upstream source of contamination, and where no PRPs are available to pay for the cleanup.
Addition of PRP Language Could Limit Use of Funding
In perhaps the most significant change to the Legacy Act, the U.S. Congress placed additional limiting language in the Reauthorization that would deny funds to any remediation process:
- unless each non-Federal sponsor for the project has entered into a written project agreement with the Administrator under which the party agrees to carry out its responsibilities and requirements for the project; or
- unless the Administrator provides assurance that the Agency has conducted a reasonable inquiry to identify potentially responsible parties connected with the site.
33 U.S.C. § 1268(c)(12)(D)(iii)-(iv).
It is unclear currently whether this language will be interpreted by EPA as providing additional requirements to the grant process, or as simply codifying the current practices of EPA under the Legacy Act. Similar requirements for the application of Superfund laws under EPA’s Brownfields Program have been interpreted with reasonable flexibility and discretion. (See, respectively, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601–9675 and Small Business Liability Relief and Brownfields Revitalization Act of 2001.) However, the EPA could conclude that this language was intended to ensure that a thorough search for PRPs is conducted and program costs recovered from PRPs. In addition, our experience has been that Legacy Act funds are less useful where responsible parties are already engaged in the waterway remediation projects because of the added burden of complying with federal mandates. Regardless, EPA’s interpretation of this provision will significantly impact how Legacy Act funds are used in the future.
Areas of Concern and Current Remediation Projects
There are 43 recognized Areas of Concern (AoCs) in the Great Lakes region, 31 of which are within the borders of the United States. These AoCs are often situated on the Great Lakes, but also can include rivers and watersheds that are inland from, but environmentally connected to, the Great Lakes. Communities can further research if they are in an AoC, and thereby eligible for Legacy Act funding, through EPA’s Web site at http://www.epa.gov/glnpo/sediment/legacy/glla_projects.html.
Remediation projects in AoCs can receive up to 65 percent federal funding through the Legacy Act. Two projects using Legacy Act funds, involving the Kinnickinnic River in Milwaukee, Wisconsin and the Grand Calumet River in Hammond, Indiana, are scheduled to begin within the next year. To date, five cleanup projects have been completed. These remediation projects were conducted in Ashtabula, Ohio; Black Lagoon, Michigan; Hog Island, Wisconsin; Ruddiman Creek, Michigan; and St. Marys River/Tannery Bay (Sault Ste. Marie, Michigan). Federal funding for these projects has ranged from $4.1 million to $25 million, with the current Kinnickinnic and Calumet projects receiving $14.3 and $21.5 million respectively, in Legacy Act funds for sediment remediation and dredging. Additional information regarding these and other Legacy Act projects can be found on EPA’s Web site at http://www.epa.gov/glnpo/sediment/legacy/glla_projects.html.
Legacy Act Funding Priorities and Application Process
Communities interested in applying for funding to remediate an AoC should note that the Legacy Act gives priority to projects that:
- Constitute remedial action for contaminated sediment
- Have been identified in a Remedial Action Plan and are ready to be implemented
- Use an innovative approach, technology, or technique that may provide greater environmental benefits, or equivalent environmental benefits at a reduced cost
- Include remediation to be commenced not later than one year after the date of receipt of funds for the project
More detailed information on the application process as well as the complete text of the Legacy Act can be found at the following links:
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If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or the following individuals:
Bruce A. Keyes
Mark A. Thimke
Benjamin P. Sykes