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Superfund Cash Spigot Opens, But Some Communities Still Waiting

March 8, 2022, 11:01 AM

Struggling communities waiting decades to get hazardous waste sites cleaned are seeing some early progress from the arrival of the first $1 billion of new federal money pouring into EPA’s long-starved Superfund program.

But the outlook for what could be billions more is far from certain—forcing those communities to continue playing a waiting game.

The big boost from the 2021 infrastructure package—a $3.5 billion increase split over five years—can only go so far to accelerate work on more than 1,300 U.S. priority sites, but also hazardous sites that haven’t made it onto the list. The Biden administration aims to tee up billions more via EPA’s annual cleanup budget and separate congressional action to extend a just-restored polluter tax for the chemical industry to petroleum products.

The first $1 billion in new money is little solace for communities like Alabama’s North Birmingham, which has been fighting just to get on the Environmental Protection Agency’s National Priorities List. Putting it there would give it more tools to decide which companies are liable to foot the cleanup bill.

The $1 billion installment EPA announced in December will help clear the backlog of 49 previous unfunded Superfund cleanups already on the priority list and accelerate work on dozens of other sites.

“Superfund in a lot of ways has become a misnomer, because it wasn’t funded for so many years” at high enough levels to move polluted sites off the priority list and make room for those vying to get on it, said Michael Hansen, executive director of the Greater-Birmingham Alliance to Stop Pollution (GASP), an environmental group.

Long Wait

GASP and other groups have been pushing EPA and the state for a priority listing for nearly a decade to clean up the 35th Avenue site, which is roughly 2-square-miles and located in a predominantly Black community. It’s one of about 50 U.S. sites proposed for the priority list.

Surrounding that community are industrial facilities associated with coke manufacturing, iron, and steel industries, with lead contamination likely impacting more than 2,000 properties and 1,000-plus acres in the area, according to a 2014 EPA fact sheet. Elevated levels of arsenic and benzo(a)pyrene, both considered carcinogens, have been found at the site.

The contamination has led community groups, including People Against Neighborhood Industrial Contamination (PANIC), to push for federal or state relocation funding rather than waiting any longer for action.

Absent the priority listing, EPA has still excavated and removed contamination from the 35th Avenue site. Elevating it to the NPL would pave the way for long-term permanent cleanup, along with a more detailed assessment of risks faced by the community and more public involvement.

Biden Pushes Action

President Joe Biden has vowed to make environmental justice a priority, and through his Justice40 Initiative is pushing to ensure 40% of the benefits of climate, clean energy, housing, and other federal spending is felt in communities suffering disproportionately from decades of air, water, and chemical pollution.

Nationwide, 26% of Black Americans and 29% of Hispanic Americans live within three miles of a Superfund site, according to EPA.

EPA Administrator Michael Regan in January directed the EPA to focus more efforts at such environmental inequities, including unannounced inspections at sites suspected of violating environmental rules to expanding air monitoring using its ASPECT airplane to detect air pollution from the sky. Regan launched a new Pollution Accountability Team to focus more environmental compliance and monitoring efforts in the South, and has vowed to speed up Superfund cleanups over the next two years.

Those following Biden administration pledges to make Superfund cleanups an agency priority say they’re taking the effort seriously.

“The Biden administration is putting its own imprimatur on the world of Superfund,” said Sam Boxerman, a partner in Sidley Austin LLP’s environmental practice in Washington.

And after years of flat Superfund spending, the increases coming EPA’s way are still historic, said Duke McCall III, a partner at Morgan Lewis & Bockius LLP in Washington. The reinstated chemical polluter tax in the infrastructure package will generate an estimated $14.4 billion over 10 years—on top of any congressional appropriation, he said.

VIDEO: Will Environmental Justice Change Under Biden?

More Cleanups Than Money

But there are still more cleanups than there is funding.

Biden’s record Superfund request for fiscal 2022 has been stymied as Congress opts for funding extensions to keep agencies open. Billions more are hung up in the stalled Build Back Better package, to be funded through an excise tax on crude oil and other petroleum products.

EPA proposed the 35th Avenue site for priority listing in 2014—a move that the state backed at the time—after the agency’s Hazard Ranking System scored soil exposure, air, and other pollution “pathways” concerning enough to add the site to the NPL.

But Alabama later “reversed course” following years of resistance by five companies that could be liable for the cleanup—most notably the Drummond Co.—Hansen and other advocates wrote in a Jan. 25 letter to the EPA. Former Alabama Gov. Robert Bentley (R) expressed misgivings about EPA’s move in an August 2014 letter, saying he had become “increasingly concerned” the reclassification could hurt economic redevelopment efforts.

Current Gov. Kay Ivey (R) hasn’t responded to calls from community groups to formally endorse elevating the site to the NPL. Her office didn’t respond to a request for comment.

In the years since, EPA conducted some preliminary removal of waste without cost-sharing from the state, which advocacy groups say renders the state’s cost concerns over the priority listing moot.

Encouraging Signs

North Birmingham has seen some encouraging signs, including a December visit from EPA Regional Administrator Daniel Blackman. Hansen said the community only got wind of the meeting from Birmingham Mayor Randall Woodfin (D), leading GASP to request a follow-up.

The mayor backed a City Council resolution passed in 2021 supporting the priority listing for the site, and has pledged to keep pushing for the listing.

EPA has provided few details on plans for future cleanups using additional funding. But its five-year strategic plan calls for completing at least 100 Superfund cleanups polluted with lead by September 2023 by partnering with the Department of Housing and Urban Development to reduce exposures particularly for children.

The agency also declined to comment on whether uncertainty around additional congressional funding might impact Superfund cleanups to come, but said the $1 billion in funding announced in December is only “the first wave of funding” from the infrastructure law.

“With complex cleanups often taking many years to complete, this money will result in more timely actions to better address low-income and minority communities bearing the brunt of pollution,” EPA said, and will bolster EPA’s Justice40 efforts steering more benefits “from relevant federal investments to disadvantaged communities"—including those near Superfund sites.

But cleanups need more than just money for disadvantaged communities awaiting action, said Carlos Claussell, a member of Philadelphia’s Environmental Justice Commission.

“We need to agree on what to prioritize,” said Claussell, a senior program officer at the Institute for Sustainable Communities.

To contact the reporter on this story: Dean Scott in Washington at dscott@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com