Activists Eye a Superfund Reboot Under Biden With a Focus on Environmental Justice and Climate Change

The EPA’s program for cleaning up the nation’s hazardous waste dumps has a backlog of sites that lack funding—the largest in 15 years.

Credit: Mark Harris for NBC News

Credit: Mark Harris for NBC News

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Super Threats: Last in a series with The Texas Observer and NBC News about Superfund sites and climate change.

The uber challenge facing the incoming Biden administration’s Environmental Protection Agency in its oversight of 1,570 hazard waste sites is best summed in a name that’s become synonymous with the daunting task: Superfund.

The “Superfund” started out as a trust fund created by Congress in 1980 to finance cleanups, paid for by billions of dollars in taxes on the chemical and petroleum industries. Congress allowed the tax to expire 25 years ago.

Now, with the trust fund empty, Superfund has become the name of a drastically underfunded federal program responsible for ensuring the industries responsible for these toxic sites do the cleanup, if possible. The EPA shoulders the financial burden using budgeted funds at sites where responsible entities no longer exist or can’t be found.   

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President-elect Joe Biden will inherit 34 Superfund sites for which no reliable funding for cleanup exists, the largest backlog of “unfunded” sites in 15 years. The backlog has steadily grown under the Trump administration. 

Biden will also assume responsibility for 945 Superfund sites identified last year by the Government Accountability Office as vulnerable to climate-related hurricanes, flooding, wildfires and rising sea level. The Trump administration stopped referring to climate change and all but ended consideration of these risks in overseeing Superfund sites.  

Senate Democrats, environmentalists and former EPA officials say they expect the Biden administration will endeavor to create new momentum by immediately reactivating Obama administration plans for factoring climate change into its site cleanup plans.  

“Even before taking office, the Biden administration accomplished one of the GAO’s key recommendations: acknowledge the climate threat,” said Sen. Sheldon Whitehouse (D-R.I.). “A Biden EPA will need to assess every federal Superfund project and help states do the same. As the GAO showed, climate change brings a new priority to rapid Superfund cleanup work.”

An investigation of the Superfund program by Inside Climate News, NBC News and The Texas Observer found that Trump’s EPA largely abandoned climate adaptation plans formulated by the Obama administration and scrubbed the words “climate change” from the agency’s five-year strategic plan.

“With President-elect Biden at the helm, EPA will once again be guided by science, and climate change will be a major consideration in all agency actions,” said Sen. Tom Carper (D-Del.), a close Biden ally and the ranking Democrat on the Senate Environment and Public Works Committee. 

Biden’s focus on climate change during the campaign was accompanied by an emphasis on environmental justice, which is also expected to become a core priority of the Superfund program. 

“Communities located near Superfund sites are disproportionately communities of color or economically disadvantaged communities, and those communities would also be more vulnerable when a Superfund site is compromised by a flood, hurricane, wildfire or another extreme weather event,” Carper said. “Fortifying Superfund sites from the risks of climate change is not only a matter of good climate policy, it’s also a matter of environmental justice.”

Biden, who nominated Michael S. Regan, secretary of the North Carolina Department of Environmental Quality, as EPA administrator, has said he will create an Environmental and Climate Justice Division within the Justice Department to go after polluters. He noted in a campaign position paper that the Trump EPA had referred the fewest number of pollution prosecutions to DOJ in 30 years. 

Nominee for EPA Administrator Michael Regan speaks at the Queen theater on Dec. 19, 2020 in Wilmington, Delaware. Credit: Joshua Roberts/Getty Images
Nominee for EPA Administrator Michael Regan speaks at the Queen theater on Dec. 19, 2020 in Wilmington, Delaware. Credit: Joshua Roberts/Getty Images

In the same paper, Biden said he would also create a “climate and economic justice screening tool” to identify communities threatened by the cumulative impacts of climate change, racial inequality and “multi-source environmental pollution.” The president-elect has also pledged to target 40 percent of all resources allocated under his $2 trillion climate plan for environmental justice communities and their needs for job training, community development and the cleanup of “legacy pollution.” 

The Biden transition team did not respond to requests for interviews.

But the optimism generated by Biden’s focus on climate change and environmental justice is tempered among environmentalists, activists and experts inside and outside the government by an array of challenges at EPA, which has been hollowed out by ideological warfare, resignations and budget cuts.

The EPA’s $9 billion budget is less than half of what the agency spent in 1980, when adjusted for inflation. The agency’s 14,172-member workforce is at its lowest level in 33 years. 

The backlog of unfunded Superfund sites, in 17 states and Puerto Rico, includes an abandoned mine in Maine where an open tailings pit is contaminated with arsenic and lead; a wood preserving facility in Louisiana contaminated with creosote and a toxic stew of volatile organic compounds; and a grain storage facility in Nebraska tainted by a fumigant containing carbon tetrachloride. Nineteen of the 34 are threatened by climate change, the GAO found. 

Kathy Setian, a former EPA Superfund site manager, cautioned that some of these unfunded sites present unknown dangers because they have not had the same sustained remediation work as fully funded cleanup sites.

“If there are climate change threats to the unfunded sites, we don’t know what they are because we are not even looking at them for remediation,” Setian said. “The threats are not being addressed.” 

Reviewing Trump’s Deals

Beyond Whitehouse’s call for climate-threat assessments at every site, one senior former EPA official said the incoming Biden administration should review all of the agreements negotiated by the Trump EPA at Superfund sites with corporations liable for cleanups. 

“You will want to see if the responsible parties were being given preferential treatment,” said Mathy Stanislaus, who served as assistant administrator of the EPA’s Office of Land and Emergency Management during the Obama administration. 

Stanislaus said such reviews should focus first on any agreements negotiated since the election by the lame-duck Trump EPA. Since 2019, the agency has been run by Andrew Wheeler, a former coal industry lobbyist, while the Superfund program is led by Peter C. Wright, a lawyer who previously worked for Dow Chemical and represented the company in negotiations with the EPA over Superfund sites.

Stanislaus said he’s also concerned about a 2017 list of recommendations spelling out ways to streamline the cleanup process suggested by a Superfund Task Force established by Scott Pruitt, Trump’s first EPA administrator. As Oklahoma’s attorney general, Pruitt was one of the EPA’s most hostile critics.

One of the incentives Pruitt tasked the EPA to consider as a means of speeding cleanups was reducing the burden on “cooperating parties,” or companies that are working with the EPA to decontaminate their sites, an objective Stanislaus said could be read as an invitation to cut favorable deals with industry. The task force also recommended reducing oversight costs for corporations “that perform timely, high-quality work.”

The EPA did not respond to requests for comment. 

In early September 2017, Pruitt scored points with community leaders and environmental activists in Houston when he visited a notorious Superfund site, the San Jacinto Waste Pits, that had been inundated by floodwaters during Hurricane Harvey. 

Satellite image ©2020 Maxar Technologies
Satellite image ©2020 Maxar Technologies

An EPA dive team had just confirmed that damage to a concrete cap had led to a leak of dioxin downriver, and Pruitt announced that the highly dangerous human carcinogen would finally be removed from the site. 

But as the incoming Biden administration takes over the program, the Trump timeline for removal has now been extended from 27 months to an estimated seven years, and the EPA has relaxed proposed requirements for disposal of the waste. Environmentalists have argued that site sampling was flawed and that the removed waste must be disposed of at a more secure site than is currently proposed. 

Rock Owens, who oversaw the Harris County Attorney’s environmental division for more than 20 years before his retirement in October, said he hopes the new team will impose tougher disposal standards.

“As they go through the design process, those things will be reviewed—and our hope is that those issues about disposal will be fleshed out,” he said.  

In the meantime, the San Jacinto Waste Pits remain vulnerable to further leaks—especially with stronger hurricanes spurred by climate change. 

In vulnerable coastal counties like Harris, Owens said, “we’ve got to solve the problem of climate change—it ties to everything.”

Portland Harbor: A Billion Dollar Review for Biden’s EPA? 

Environmentalists in Oregon say the Portland Harbor Superfund site also exemplifies the need for review by the incoming Biden administration. 

Two weeks before President Donald Trump’s inauguration in January 2017, the Obama administration released its final plan for cleaning up contaminated soil and toxic waste at the site, a 10-mile stretch of the Willamette River.  

Harboring Suspicion

In less than a year, state and local officials were sounding the alarm that Trump’s Environmental Protection Agency was moving to roll back the cleanup to benefit some of the 150 entities on the hook for its $1.05 billion price tag. 

Trump’s EPA eventually pared back the plan and reduced its cost by $35 million. Design plans for much of the massive dredging and soil removal project continue.

Portland environmentalist Cassie Cohen said the Trump modification, in a document called its Explanation of Significant Differences, fails to account both for climate threats and for years of disproportionate harm suffered in large part by Native Americans and others who work on, live near, and fish in the Willamette River. 

In lengthy public comments on the Trump document, Cohen’s organization posed numerous questions the Biden administration will now have to answer, beginning with its allegation that corporations and other entities responsible for cleanup costs benefited from “special access” to, and “influence” over, the Trump EPA.

“It is time for the secret negotiations over Portland Harbor cleanup and related matters to stop,” the Portland Harbor Community Coalition said. “We are shocked and disappointed by EPA’s proposal in the ESD to weaken cleanup standards and shrink the scope of the cleanup.”

The coalition said the Trump-modified plan does not adequately factor in disasters related to climate change, “including anticipated major earthquake, flood, and drought scenarios and how they will impact recontamination.”

The Trump Explanation of Significant Differences also likely violates Title VI of the Civil Rights Act, according to the coalition, by failing to address the disproportionate health risks from toxic contamination faced for generations by “Black, Native American, Immigrant and Refugee, and Houseless/Homeless communities.” 

In response to questions for this article, an EPA spokesman provided excerpts from the agency’s significant differences document. In the document, the EPA never responded to community concerns that their plans failed to fully address climate change. 

But the agency argued that it had provided greater access to the remediation process than “is required by Superfund law” and claimed that the cleanup plan proposal for the site “does not negate all the previous environmental justice work and information collected and the necessity for environmental justice work to continue.”

Environmental Justice: Years of Broken Promises

When the Obama EPA went looking in 2009 for 10 disadvantaged neighborhoods close to Superfund sites to participate in an Environmental Justice Showcase Communities program, officials selected Eastside in Jacksonville, Florida, near the Kerr-McGee Superfund site, a former pesticide and fertilizer manufacturing and storage facility.

Each of the 10 communities, from Staten Island, New York, to Yakima Valley, Washington, received $100,000 grants to address environmental justice issues. The relatively small amount spoke to the modest ambitions of the EPA’s environmental justice program at the time. 

In Jacksonville, there was talk of building a comprehensive health care center. But the program only included enough funding for a study of fish and shellfish in local fishing streams, the posting of 24 signs warning of the hazards of eating the fish, and a seminar on how to build rain barrels, according to the EPA. 

“We’ve been knocking on EPA’s door for 20 years,” said Teena Anderson, a member of the Eastside Environmental Council, a grassroots organization formed to represent the residents around the Kerr-McGee site, which advocated for job training, nutrition programs and aid for seniors. “We don’t have much to show for it.”

Trump’s latest budget proposal included a 70 percent reduction in EPA spending on environmental justice programs, from $9.5 million to $2.7 million. 

Mustafa Santiago Ali, who served as an associate administrator in the EPA’s environmental justice office in the Obama administration, said he understands the cynicism Anderson feels after years of unfulfilled expectations.

“There is going to have to be a rebuilding of trust between the federal government and front-line communities,” said Ali, who is now vice president of environmental justice, climate and community revitalization for the National Wildlife Federation

Biden has proposed elevating the EPA’s Environmental Justice Advisory Council and the Environmental Justice Interagency Council as White House entities, with both reporting to the chair of the White House Council on Environmental Quality. 

In addition to creating the Environmental and Climate Justice Division within the Justice Department, Biden has proposed overhauling the EPA’s External Civil Rights Compliance Office to empower communities under Title VI of the 1964 Civil Rights Act “that experience the worst impacts of climate change and fenceline communities that are located adjacent to pollution sources.”

For that, his EPA need look no further than the Superfund program. 

An EPA study in September found that a disproportionate number of people of color lived within 3 miles of Superfund sites, highlighting the fact that historically underserved communities sit in the shadow of these toxic sites. 

In Jacksonville’s Eastside neighborhood, 81 percent of residents are people of color, and 30 percent of households live below the federal poverty line.  

From her front yard, Carol Gafney can see a chain-link fence surrounding the 31-acre Kerr-McGee Superfund site, now a vast, vacant plot of earth where massive quantities of fertilizers, pesticides and herbicides were manufactured and stored from 1893 to 1978. 

Like many in her neighborhood, Gafney relies on food stamps and struggles to make car and house payments. She said she feels abandoned by government agencies, especially the EPA.  

“We live where nobody cares about us,” she said.

The cleanup of the Kerr-McGee site inches along after 10 years in the Superfund program, a decade that has produced little but resentment, fear and frustration in Eastside. 

“This is the chance for the EPA to step up and make good on its promises,” said Anderson, the Jacksonville activist. 

Along with fulfilling the idea of a health center discussed a decade ago, she said she hopes the EPA will assist the community with job skills development, nutrition programs and senior programs.  

A big first step, she said, would be for the agency to come into the community and listen.

“The community needs to be a part of writing the narrative for its future,” Anderson said. “By coming to the community they will be sending a message that they are coming to right some wrongs.”

Unfunded Sites: What Happens When the Money Runs Out?  

Every year, Ana Baptista wonders if there will be money to continue the clean-up of toxic substances that have saturated the ground around a former chemical manufacturing plant on the edge of the Ironbound, a majority Black neighborhood in Newark, New Jersey. 

The answer this year was no. There was no money from EPA to continue work started to remediate the dangers from more than 50 toxic chemicals that had seeped into the groundwater on the shuttered White Chemical Corp. Superfund site. The lack of funding put the site on EPA’s growing list of unfunded, or orphan, sites.

Ana Baptista, a community advocate, in Newark's Ironbound neighborhood. Credit: Brian Fraser/NBC News
Ana Baptista, a community advocate, in Newark’s Ironbound neighborhood. Credit: Brian Fraser/NBC News

White Chemical made acid chlorides and fire retardant compounds on the 4.5-acre property between 1983 and 1990. The EPA found 10,000 55-gallon drums of hazardous substances improperly stored on the premises, which was designated a Superfund site in 1991. The company ultimately went bankrupt, leaving the EPA to pay for the clean-up. 

Since then, the government has provided approximately $32 million for cleanup work at the site, funding that must be scratched out of the EPA’s budget every year.  It is one of five Superfund sites in New Jersey that have gone unfunded in the last year.

Federal dollars dried up in September 2019 for work at White Chemical, one of three Superfund sites on the edge of Baptista’s Newark neighborhood that are vulnerable to climate change threats, and no new funding has been authorized.

“The uncertainty of when the site will get cleaned up because there is no money is frustrating,” said Baptista, a former director of environmental justice and planning at the Ironbound Community Corp., a local nonprofit.  “It leaves the contamination unaddressed for a lot longer and so people are exposed to the contamination a lot longer.”

It’s another example of the government ignoring the plight of her neighborhood, Baptista said. 

Tackling clean-ups that do not have a responsible party that can be held financially responsible for remediation work has plagued the agency for decades, ever since Congress let a system of fees paid into the “Superfund” by the chemical and petroleum industries—a so-called “Polluter Pays” tax—expire in 1995. By 2003, the Superfund was broke.

“Given the state of funding and the fact that more projects are awaiting construction funding… EPA did lose momentum in moving cleanup forward,” said Jim Woolford, who retired earlier this year after serving 14 years as the director of the office of Superfund Remediation and Technology Innovation for the EPA.