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Superfund Poised for Historic Funding Boost in Biden Equity Push

Sept. 30, 2021, 10:00 AM

For years, the EPA’s Superfund program has struggled to keep up with backlogged cleanups and complaints that communities have been shut out of decisions to remedy polluted sites.

But several developments—including possible massive funding increases—may be about to change that.

The Biden administration’s efforts, from cutting through the backlog of cleanups to speeding cleanups—in part to achieve results for the frontline communities living in and around the sites—includes a $328 million boost for Superfund efforts in fiscal year 2022, bringing the total to a record $1.5 billion.

That includes a nearly 50% funding increase specifically for site cleanups under the Superfund Remedial Program, which would provide its highest total in 15 years with the exception of a spike in stimulus dollars awarded under the Obama-era American Reinvestment and Recovery Act.

The Democratic-controlled House in July added several million more, though the Senate hasn’t moved its version.

Even more money could be on its way. The bipartisan infrastructure package would direct another $3.5 billion to Superfund over five years for sites on the National Priorities Lists List and waive cost-sharing requirements for states.

Also on the horizon: Congress could be poised to resurrect at least a portion of the Superfund “polluter” tax—imposed on petroleum and other companies to fund cleanups—under the infrastructure measure or the $3.5 trillion reconciliation package.

‘Dramatic Difference’

Both packages are Biden priorities but will need to overcome Democratic infighting. House moderates are troubled by the size of the reconciliation package while progressives are demanding that it move before a vote on the infrastructure measure.

Regardless, “I’m very hopeful,” said Sierra Club board member Rita Harris, who has closely tracked Superfund, acknowledging that it would be premature to grade Biden’s progress this early.

The prospect of an historic funding boost for Superfund would “make such a dramatic difference” in the agency’s ability to start work on dozens of unfunded cleanups, said Barry Breen, who oversees Superfund as acting assistant administrator for EPA’s Office of Land and Emergency Management.

EPA’s National Priority List includes a record number of “unfunded new starts"—which has gradually grown to 38 from 12 in 2016. Some communities have been waiting as much as four years for work to start, Breen said.

Unfunded cleanups include the Eagle Picher Carefree Battery site in New Mexico; Escambia Wood in Pensacola, Fla.; and Jacobs Smelter in Utah.

‘Beset by Underfunding’

Such efforts come as the agency is under increased pressure to speed cleanups at the 1,300-plus priority sites that pose a disproportionate threat to minority and vulnerable communities.

Twenty-six percent of Black Americans and 29% of Hispanic Americans live within three miles of a Superfund site, which pose threats including elevated lead exposures for children.

Harris worked on an advisory group’s report which in May recommended EPA overhaul outreach and consultation with vulnerable and often poorer communities for a program long “beset” by underfunding.

She said the administration’s early focus is still an about-face from Donald Trump, whose administration drew scorn for also trying to slash EPA funding, including Superfund and environmental justice efforts.

With cleanups taking roughly eight to 10 years, more money would help the administration show demonstrable progress in taking the kind of actions it has pledged to better address low-income and minority communities bearing the brunt of pollution, Breen said.

Biden’s requested $293 million increase for Superfund’s Remedial Program would bring total cleanup funding to $882 million in fiscal 2022—enough to start work at more than 20 unfunded sites on EPA’s priority list, according to EPA’s budget justification sent to Capitol Hill.

‘A Different Level’

Efforts to resurrect the Superfund “polluter” tax on petroleum and other sectors to fund cleanups also have progressed. But the outlook is murkier than prospects of increasing funding via the appropriations process. The fee hasn’t been reauthorized since the 1990s and since has been stymied by congressional squabbling.

Restoring the tax survived a hurdle Sept. 15 when it was included in the House Ways and Means Committee’s portion of the reconciliation package.

Legally, companies that pollute sites are on the hook for cleaning them up. But the agency steps in to pay when no responsibility can be assigned, such as in the wake of bankruptcies—the reason Congress first authorized the fee in the 1980s.

The prospect of reauthorizing the polluter tax “could be significant from an appropriations standpoint” for a cleanup program that has seen relatively flat funding for years—assuming “all that funding goes to EPA,” said Peter Wright, who oversaw the program as former assistant administrator for EPA’s Office of Land and Emergency Management.

It’s unclear whether more money alone would translate into a greater focus on environmental equity within the program, said Wright, now a partner at Barnes & Thornburg LLP.

Combating ‘Lack of Trust’

Environmental justice and environmental groups say even billions of dollars more would still fall short of what’s needed—including emerging threats from flooding, storms, and wildfires made worse by climate change.

And not all of the challenges to the program can be solved by money, environmental justice advocates say. They want to reshape the 40-plus-year-old Superfund program into one that listens to communities much earlier and often and gives more attention to how a cleaned-up site could be used as a park or otherwise benefit the neighborhood.

“Lack of trust between communities impacted by contaminated sites and government agencies responsible for addressing these sites” can be an obstacle to effective cleanups, according to the National Environmental Justice Advisory Council report.

EPA Administrator Michael Regan and other agency officials have moved to make environmental justice a priority across the agency, including in Superfund policy. The EPA and the Justice Department recently updated what are essentially a series of blueprints to negotiate cleanup agreements with parties potentially responsible for the pollution.

The model documents, revised Aug. 31, update steps for seeking consent decrees with polluting companies. The agency said they also reinforce a “commitment to community engagement, which enhances the protection of environmental justice communities disproportionately impacted by pollution.”

One lingering challenge for Superfund is the Senate’s slow pace on some Biden nominees. Carlton Waterhouse, now OLEM deputy assistant administrator, wasn’t nominated until June to the Senate-confirmed assistant administrator post. A Senate Environment and Public Works Committee vote isn’t expected for at least several more weeks.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

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

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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