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The Superfund Program Goes Green – Part III

June 30, 2022

In Parts I and II of this series, we discussed EPA’s “Climate Resilience” and “Greener Cleanups” initiatives, programs aimed at improving the sustainability of remedial activities at Superfund sites in response to climate change. In this final installment, we discuss the growing role for “environmental justice” (“EJ”) in CERCLA decision-making and highlight opportunities to leverage EJ considerations to achieve better outcomes for both disadvantaged communities and PRPs.

EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EJ is not a new concept, but President Biden seeks to make it a cornerstone of his Administration’s environmental policy. Since January 2021, the President has issued multiple Executive Orders aimed at promoting EJ initiatives, including Executive Order 13985, “Advancing Racial Equity and Support Through the Federal Government,” dated January 20, 2021. See also Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis” (Jan. 20, 2021); Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad” (Jan. 27, 2021). The Administration’s emphasis on environmental justice also is reflected in EPA’s Strategic Plan for fiscal years 2022-2026 and EPA’s Draft EJ Action Plan, both published earlier this year.

Against this backdrop, EPA has taken a number of steps to integrate EJ goals into the Superfund program. In July 2021, EPA issued a memorandum directing the Regions to strengthen enforcement of CERCLA by prioritizing “early action and/or enforcement efforts on Superfund site operable units that most impact overburdened communities.” See Memorandum: Strengthening Environmental Justice Through Cleanup Enforcement Actions, from Larry Starfield, Acting Assistant Administrator, to Regional Superfund Division Directors and Deputies, et al. (July 1, 2021), at 2. EPA also issued a revised model RD/RA Consent Decree and Statement of Work in August 2021. Section 2 of the new model Statement of Work imposes expanded community involvement requirements on Settling Defendants. Finally, in its Draft EJ Action Plan, the Agency proposed to develop (1) guidance directing regional offices to consider and document EJ information during remedy selection, and (2) recommendations for expanding “emphasis on equitable redevelopment and community-wide revitalization during Superfund Redevelopment work with communities.” U.S. EPA, Draft EJ Action Plan, EPA 502/P-21/001 (Jan. 5, 2022), at 22-23.

EPA has also targeted funding from the November 2021 Bipartisan Infrastructure Law (“BIL”) to advance EPA’s EJ objectives for the Superfund program. Under the BIL, Congress earmarked $3.5 billion for the program, and EPA announced late last year that it would use the first $1 billion to clear its backlog of projects at 49 previously unfunded Superfund sites. According to the Agency, more than 60% of the sites are located in historically underserved communities.[1]

New state laws are influencing EPA’s implementation of EJ, too, and they provide a glimpse into where stakeholders can expect more regulatory activity. For example, in July 2021, Colorado enacted the Environmental Justice Act, HB 21-1266, which established criteria for identifying “disproportionately impacted communities” and prioritized outreach and state action to reduce environmental health disparities in those communities. The Act defines a “disproportionately impacted community” as, among other things, a community in a census block group where:

  • the proportion of households that are low income is greater than 40%;
  • the proportion of households that identify as minority is greater than 40%; or
  • the proportion of households that are housing cost-burdened is greater than 40%

See § 24-4-109(2)(b)(II), C.R.S. In March 2022, EPA Region 8 entered into a Memorandum of Understanding with the Colorado Department of Public Health and Environment to initiate a partnership and expand collaboration between the two agencies to strategically target environmental compliance inspections and enforcement actions in disproportionately impacted communities.

No federal law currently mandates consideration of environmental justice in the Superfund decision-making process, and EPA has not yet issued guidance on its EJ goals and considerations in remedy selection and five-year reviews. But EJ considerations are already relevant to remedy selection—“community acceptance” is one of the nine NCP criteria for evaluating remedial alternatives, and the NCP contemplates soliciting comments regarding the community’s position on alternatives. See 40 C.F.R. § 300.430(e)(9)(I). As for five-year reviews, we anticipate additional directives from EPA aimed at upgrading and expanding opportunities for community engagement.

The Administration’s EJ policies raise fundamental questions for the Superfund program, including what role communities should play in defining cleanup objectives for remedy selection. Many disproportionately impacted communities have faced historical underinvestment and underdevelopment. Contaminated properties present opportunities to begin alleviating historical inequities by developing otherwise unusable land to support the jobs, infrastructure, and open-space amenities these underserved communities clearly need to support residents and flourish. However, unattainable cleanup objectives—and the overengineered remedies implemented to try to reach them—lock up these properties and stymie development.

In May 2021, the National Environmental Justice Advisory Council, an advisory council to EPA, published a report recommending that EPA elevate communities’ needs and desired future uses in the Superfund decision-making process. See Superfund Remediation and Redevelopment for Environmental Justice Communities, NEJAC (May 6, 2021), at 12. The report reflects an obvious truth: Communities should be involved in determining cleanup objectives and remedial actions with an eye toward returning properties to the beneficial uses they believe they need.

There is real opportunity here for PRPs. Community engagement can help identify appropriate future uses of properties that are not tied to unattainable cleanup objectives and overengineered remedies that have plagued so many Superfund sites over time. In Jersey City, New Jersey, for example, a Superfund landfill site currently is being transformed into a much-needed community park and river access. See Marilyn Baer, “From toxic site to Jersey City park,” Hudson Reporter (Dec. 3, 2020). The Whitmoyer Laboratories Superfund Site in Pennsylvania is now home to several recreational facilities. See EPA Superfund Redevelopment Initiative, Recreational Reuse and the Benefit to the Community (Oct. 2020). Focusing on and leveraging community needs to support more practical cleanup objectives and remedies that actually achieve those objectives has obvious potential benefits for PRPs and local communities alike.

The Superfund program continues to change and mature. This series explored three initiatives—“Climate Resilience,” “Greener Cleanups,” and environmental justice—that are beginning to transform the Superfund decision-making process. From the rising frequency of extreme weather events to equity concerns in underserved communities, EPA must wrestle with how to achieve cleanup objectives while ensuring a more sustainable future for all. That leaves room for the regulated community to invoke sustainability goals to support community outreach and the selection of more sensible remedies to improve outcomes at Superfund sites, whether in remote landscapes or dense urban centers.

[1] Relevant to Parts I and II of this series, Congress also earmarked funds for projects related to climate resilience and clean energy, including $1.5 billion for wildfire resilience investments and $20 billion for clean energy demonstration projects.