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ARTICLE

How Do We Navigate Environmental Justice Concerns at Superfund Sites? Best Practices Based on Experience Across Multiple Sites and Regions

Alma Feldpausch and Scott S Shock

Summary

  • Increased engagement with communities changes how we investigate sites, assess risks, and identify remedies.
  • Recommended strategies focus on quality of community engagement and integration of community feedback.
  • Cumulative impact assessment should consider both beneficial as well as adverse impacts.
How Do We Navigate Environmental Justice Concerns at Superfund Sites? Best Practices Based on Experience Across Multiple Sites and Regions
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In January 2021, President Biden signed two executive orders, EO 13985 and EO 14008, expanding upon the 1994 EO 12898 which directs federal actions to address environmental justice (EJ) in communities of color and communities living with low income.

Further direction through EO 14096, the Justice40 Initiative, and changes to federal policy (e.g. NEPA Phase 2) and agency plans (e.g. EPA FY 2022-FY 2026 Strategic Plans) has demonstrated the intent to approach environmental justice through an “all of government” approach.

What authority does EPA assume to address EJ under CERCLA?

EPA’s authority to address EJ is not specifically outlined under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. However, EPA expresses the intention to address EJ through an ‘all of CERCLA’ approach, relying on authority to take action “necessary to protect the public health or welfare of the environment” in response to hazardous substances under CERCLA Sections 104 and 112.

Additionally, Section 121 indicates a need to meaningfully assess remedial actions, obtaining state and tribe acceptance (criteria 8) and community acceptance (criteria 9). In these instances, EPA can stress that public health must demonstrate inclusiveness of those who are disproportionately burdened by or susceptible to hazardous substances present at CERCLA sites, and, that remedies must specifically address EJ concerns raised by states, tribes, and communities.

What are some implications of enhanced EJ activity under CERCLA?

How EPA’s enhanced focus on EJ affects responsible parties will depend in part on what stage their site(s) is in the CERCLA process. However, regardless of stage, EPA has been clear in communicating a need for increased and enhanced efforts to engage with communities and obtain input, incorporating this input and community-specific exposure pathways and traditional ecological knowledge into site-specific studies, and allocating funding to technical assistance groups.,

How are communities influencing the CERCLA process?

We can see the influence of communities with EJ concerns on the CERCLA process by looking at how sites are delineated, identification of risk assessment exposure scenarios, and selection of site remedies. For example, site delineation may be modified to include investigation of a minimally impacted public beach where cultural gatherings are held, because the beach may represent a more important area of investigation than portions of the site that are more heavily impacted by historical operations. Providing investigation and health risk information to inform future beach use may be critical to gaining community acceptance of CERCLA studies and a proposed remedy for the site. EJ also influences the CERCLA process when community feedback is incorporated into the remedial design. A community’s desire to integrate greenspace through development of a nature-based remedy provides an opportunity to meaningfully incorporate community feedback into the CERCLA process.

What strategies are recommended to manage potential risks?

There are a number of strategies and best practices that can be used to manage potential reputational, workflow, and legal risks while navigating the CERCLA process in cases where there is not clear direction from EPA. These strategies are also effective when addressing other regulatory matters, such as permitting under Clean Air Act and Clean Water Act, and the National Environmental Protection Act. These practices can be focused on retrospective or prospective EJ activities performed under CERCLA, and include:

  1. Engage early and often with agency partners on EJ-related actions, even if there is reluctance to engage. Develop and document a plan of engagement, with the intention of supporting agencies as a partner in their community engagement efforts. Demonstrate willingness to educate and support agencies, who may have no or limited training and other resources to meaningfully engage with communities. Supporting (receptive) agency staff in fulfilling their responsibilities can contribute to improved agency relations as well as community relations.

  2. Know your community; utilize but do not exclusively rely on federal and state EJ screening tools. Recognize that environmental, social, and health indicators highlighted by EJ screening tools reflect a starting point to understanding potential community concerns and vulnerabilities. In reality, these indicators may have no relevance to the community. Community-specific feedback gathered through public meetings, surveys, interviews with spokespeople, and collected from social media posts should supplement screening results provided by EJ tools (e.g., EJScreen, CEJST, EJI). This feedback can lead to more meaningful engagement as well as provide valuable information used to proactively address community needs during investigation, mitigation, and remedy development.

  3. Integrate community feedback into CERCLA process planning. Input provided by communities can be used to identify additional opportunities for engagement and response and should not be discounted as it can have a significant impact on the CERCLA process (i.e., scope, schedule, budget). Demonstrate where and how community feedback is incorporated into CERCLA reports, noting where study scope and design, results interpretation, recommended actions, and communications have been informed by feedback solicited from communities. Documentation can and should be performed retrospectively, when possible, to create a historical record of past engagement activities.
  4. Consider beneficial, as well as adverse, disproportionate impacts. Who will bear the greatest (and fewest) benefits of each remedial option considered for your site? Where there may be a disproportionate adverse impact, it will be necessary to revise plans to mitigate this. Additionally, document where a remedy may benefit a community that is otherwise disproportionately, adversely burdened by environmental exposure risks. Site remedy selection may have a direct and obvious benefits to vulnerable communities, but it is also important to consider timeliness of actions. Working through the CERCLA process efficiently can also be shown as a benefit by avoiding prolonged exposure risk to vulnerable communities.

Advising clients on managing environmental justice concerns raised by communities living in and around Superfund sites can be daunting. In our experience, following these best practices has helped Ramboll and our clients effectively engage agencies and communities and to achieve better outcomes for all stakeholders.

Alma Feldpausch, MS, DABT is a principal toxicologist leading Ramboll’s Risk Assessment and Community Health Department and co-leads Ramboll’s internal multidisciplinary EJ Task Force. She integrates environmental justice technical analyses into health risk-based decision making for sites in the Americas.

Scott Shock, PE is a principal engineer leading site investigations and cost recovery analyses at CERCLA sites. He employs a variety of cost-benefit, economic, and uncertainty analysis methods to facilitate rigorous and defensible environmental risk and liability management decisions.

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