Bloomberg Law
Sept. 30, 2020, 10:00 AM

EPA Chief Trumpeting ‘Misleading’ Superfund Metrics, Critics Say

Sylvia Carignan
Sylvia Carignan

The EPA is touting the number of contaminated Superfund sites removed from its priority list—even as newly proposed sites and sites awaiting funding continue to pile up.

In public remarks in recent months, Andrew Wheeler, administrator of the Environmental Protection Agency, has touted the number of deleted or delisted sites, many of which will be finalized in the Federal Register on Wednesday. In the Superfund process, sites that need cleanup are added to the National Priorities List, then removed from the list once the construction of the remedy is completed.

Critics of the EPA’s measures of success for toxic cleanups say Wheeler is claiming the efforts of other administrations as his own because Superfund cleanups take decades to bring to fruition. That’s happening even as there are more potentially toxic sites, and sites that need federal funding to start cleanup, they say.

“The longer a cleanup is delayed, the longer a public health consequence occurs,” said Mathy Stanislaus, former assistant administrator of EPA’s Office of Land and Emergency Management under the Obama administration. That office manages the agency’s Superfund program.

Wheeler has highlighted the agency’s progress on Superfund in recent speeches, including at the American Enterprise Institute on Sept. 21.

“Cleaning up these sites has been a major focus of the Trump administration,” Wheeler said at the time. “We have maintained last year’s accelerated pace and will have completed the deletion process for another 27 full or partial sites by the end of this fiscal year.”

Wheeler’s emphasis on site deletions as a measure of cleanup progress is “misleading,” said Michael Blumenthal, of counsel at McGlinchey Stafford PLLC in Cleveland. Deleting a site is a “paperwork exercise” requiring EPA staff to document that the construction of a remedy, such as building a water treatment plant or groundwater pump, is done, he said.

Measurement Standards

“They’re using deletions to advertise success,” agreed Jillian Gordner, Zero Out Toxics campaign associate for the U.S. Public Interest Research Group in Chicago. “I would say that’s not the best metric, necessarily, because it’s the last step in the process after decades worth of work.”

EPA spokesman James Hewitt acknowledged the timeframe in a statement on Tuesday.

“While the site work on Superfund sites spans administrations, the Trump Administration is prioritizing both cleanup progress and cleanup completion,” he said.

“Deletion from the NPL is necessary for a site to be eligible for Brownfields grants that help revitalize communities and promote economic growth. Deletion announces to communities and signals potential developers and financial institutions that cleanup is complete.”

But a more significant metric for cleanup progress may be sites where construction can start, McGlinchey’s Blumenthal said.

The EPA was unable to start construction at 34 sites that were ready for work to begin in fiscal 2019 because of a lack of funding. That number has steadily grown under the Trump administration, from 12 in fiscal 2016, to 18 in fiscal 2017 and 20 sites in fiscal 2018.

“I question whether and how the backlog of unfunded construction projects at Superfund sites will ever get funded with this administration’s cuts to the Superfund Program,” he said.

The Trump administration has repeatedly advocated for cuts to the Superfund budget, which hovers at about $1.1 billion. In fiscal 2020, the administration proposed cutting the program’s budget by 10%.

Decades of Work

The EPA is finalizing deletion of 17 sites through one Federal Register notice at the end of fiscal 2020. Those deletions include full sites and partial sites, where enough cleanup has been completed to allow a section to be removed from the National Priorities List.

One of the sites the EPA is deleting, American Crossarm & Conduit Co. in Chehalis, Wash., was added to the list in 1989. Another, Tulsa Fuel and Manufacturing in Collinsville, Okla., was added to the list in 1999.

“It’s a multiyear effort, so listings today are largely—almost exclusively—the results of multiyear activity,” Stanislaus, the former assistant administrator, said.

During the Obama administration, Stanislaus said there was a significant increase in the number of states asking for sites to be added to the National Priorities List, at least partially due to reduced state budgets.

Thirty-four new sites have been proposed for the National Priorities List between fiscal 2017 and now, according to the EPA. From fiscal 2012 to 2016, 72 sites were proposed, according to the agency.

There are about 1,300 Superfund sites around the country, according to the EPA.

Administration Initiatives

“It is clear that many of these sites sat on the National Priorities List for decades, with previous administrations not viewing their completion as a priority,” Wheeler said in his Sept. 21 remarks.

Fewer sites were deleted during the Obama administration, but it’s unclear whether that was a direct result of the EPA’s initiatives, said Bart Seitz, senior counsel at Baker Botts LLP in Washington, D.C.

“I think the perception, at least from the industry side, is that there are a multitude of factors,” Seitz said. Under previous administrations, the agency was more likely to hesitate to finalize a decision on site cleanup, or to wait before allowing a site to proceed to deletion, he said.

“The effort to select a remedy was getting bogged down. That was at the feet of both industry and EPA,” he said.

But Superfund-level contamination isn’t necessarily a relic of the past, Stanislaus, the former official, said; there are places in the U.S. that are growing increasingly contaminated now due to mismanagement.

“It’s not a legacy issue from 20 or 30 years ago,” he said. “We need to make sure there are adequate resources to fully address these sites.”

To contact the reporter on this story: Sylvia Carignan in Washington at

To contact the editor responsible for this story: Anna Yukhananov at