Two Superfund Environmental Justice Case Studies

by Joel S. Hirschhorn

Hirschhorn & Associates
2401 Blueridge Ave., Suite 411
Wheaton, MD 20902
TOXTRUTH@aol.com

Introduction

One of the environmental contributions of the Clinton Administration was Executive Order No. 12898 on Environmental Justice issued in 1994.(1) Environmental justice has received considerable attention in EPA's Superfund program. Many Superfund sites are located in or close by residential areas composed populated by ethnic minorities and people of the lowest economic status. Over the years, minority communities have often asserted that they have been treated more unfairly than predominantly white, middle class communities, with respect to the quality of environmental cleanups and the relocation of residents. The environmental justice claim is also that these communities have been intentionally placed in harm's way because of historical racial prejudice and injustice, meaning that either polluting industrial facilities were intentionally placed in minority neighborhoods or that residential areas for minority workers were built close to industrial facilities. This paper presents discussions of two Superfund sites where environmental justice issues have been very important, and it analyzes how specific parts of the Executive Order have been complied with in EPA's Superfund program.

Both sites are in EPA Region 4, and have certain similarities, including: both are in predominantly African-American neighborhoods where some residents were also workers at the former industrial facilities on the sites; both sites are contaminated by dioxins; the issue of contamination in the residential areas near both sites has been paramount; both communities have had difficult, confrontational relations with EPA; there were significant removal actions at both sites; both communities have sought intervention by EPA's National Ombudsman; and both have had activist community organizations using the services of a technical advisor (this author) funded through EPA Technical Assistance Grants. Also, at both sites there was community disappointment with the activities of the federal Agency for Toxic Substances and Disease Registry (ATSDR), and in both cases state government agencies played no significant role.

One significant difference between the two sites is that the Florida site has achieved a central community goal, permanent relocation of a large number of affected residents, albeit after many years of frustration and disappointment. At the Georgia site, the community has received virtually no satisfaction, even though EPA Region 4 gave special attention to the community in its environmental justice program. Another difference is that the Florida site is an EPA fund-financed cleanup, while the Georgia site is an enforcement site with a potentially responsible party playing a major role in site remediation. In terms of the Superfund program process, at the Florida site the relocation decision was taken as an interim remedial action prior to completion of the site studies and remedy selection, while at the Georgia site has the community became involved after the remedy had been selected.

Case Study 1: Escambia Treating Company Site, Pensacola, Florida

The Escambia site in Pensacola, Florida was formerly a wood treating facility at which pentachlorophenol was used; operations began in 1942 and continued through 1982. The site is in a mixed residential-industrial area. The areas is subject to severe weather patterns. The residential neighborhood, composed primarily of low income African-Americans, contains single-family, detached houses in one area and large low income, federally subsidized apartment buildings in another. A second Superfund site is located at the edge of the neighborhood. This factor complicated some aspects of the community's demands to EPA. The community group, Citizens Against Toxic Exposure (CATE), has addressed both Superfund sites but their focus has been on the Escambia site. CATE has been an extremely effective grassroots organization, able to deal forcefully with the government, able to obtain congressional support, newsmedia attention, and the assistance of national organizations.

Superfund History

Although the site has been in the Superfund program for some time, it has only recently advanced to the remedial cleanup stage and is now receiving a Remedial Investigation by an EPA contractor. For years, EPA's focus was on a very large scale removal action. The community received very little information about the removal action prior to its completion in 1992 and, to a large degree, became mobilized because of perceived health threats created by EPA's removal action. Also, in interviews conducted by EPA with local residents in 1992, the racial bias issue had emerged. The removal consisted primarily of a large site excavation of roughly 255,000 cubic yards of contaminated soil that resulted in the creation of a large pit and a large pile that became widely known as Mount Dioxin. It was one of the highest cost removal actions taken in the Superfund program, over $4 million. Oddly, EPA did not propose the Escambia site for the National Priorities List (NPL) until August 1994, which was inconsistent with all of the information about the site available to EPA years earlier. This fact and various statements made in EPA removal action decision documents in 1991 and 1992 suggested to this author that EPA Region 4 was apprehensive about securing federal dollars for a very expensive remedial cleanup and intentionally delayed NPL listing.

The position of the community was that the removal action created dangerous exposures to mobilized contaminated soil, principally through fugitive soil dust releases, and also through leachate from the pile of excavated materials left behind and covered with plastic sheeting. EPA had justified the removal on the basis of finding very high levels of site contamination, including very high levels of dioxins/furans, and contamination of shallow groundwater. New data on site contamination obtained as part of an early Remedial Investigation activity in 1996 clearly showed that the original removal action had left very high levels of site contamination all over the site, including in the open pits and the areas not covered by the pile of excavated materials. In other words, the removal action did not effectively remove the threat to shallow groundwater, given originally by EPA as the main basis for the action. Moreover, the removal action left highly contaminated surface soils as sources of continued releases into the environment and it did nothing to protect residents. In sum, CATE asserted that EPA's removal action had itself caused preventable health threats.

A key victory for the community was an agreement it obtained with EPA Region 4 in early 1995 by which EPA agreed to conduct extensive residential soil testing, including certain numbers of samples that could be designated by CATE's technical advisor, who would also be onsite, supervising all sampling activities by EPA's contractor. This sampling program focused not only on testing for dioxin, but also on testing for the full range of contaminants associated with the Escambia site. With the help of the National Ombudsman, CATE also obtained the oversight and review services of EPA's Environmental Response Team in New Jersey. This addressed the community's lack of confidence and trust in the integrity of the work done by EPA Region 4. It was the results from this test program that provided the key data on contamination of residential areas surrounding Escambia that was most effective in compelling EPA to agree to a large scale permanent relocation of residents in late 1996.

The Dioxin Issue

In 1992, after EPA had completed the removal action, it tested soil in a few residential backyards immediately over the site's fenceline and found dioxin, ranging from 34 to 950 ppt TEQ with an average of 316 ppt. Subsequently, CATE made an issue about the fact that such dioxin levels corresponded, according to EPA's own risk assessment data, to cancer risks over the 10-4 level of 200 ppt at which EPA is required by the National Contingency Plan to take action. But through early 1997 EPA has taken no action for this residential area. It used background samples taken very near these locations and on the Escambia site itself that had 14 ppt which also supported the citizens view that the dioxin contamination in residential areas had resulted from direct releases from the Escambia operations (principally surface water runoff). Three years later, EPA obtained more dioxin data showing even higher levels in residential soils (average of 587 ppt TEQ and maximum of 3 ppb in the area closest to the site). Four years after the original evidence of dioxin contamination in the residential area, EPA had not taken any action, such as soil removal, soil covering, or relocation of residents, to protect public health. The residents were not helped by ATSDR's Public Health Assessment in 1995 that raised no concerns about dioxin. In 1996 EPA Region 4 decided to use the 200 ppt level for dioxin cleanup for the offsite residential areas near the Escambia site, acknowledging that it corresponds to the 10-4 cancer risk level, but ignoring noncancer health effects.

The 1995 ATSDR Public Health Assessment for the Escambia site cited a safe level of 50 ppt for dioxin TEQ in soil, because of noncancer health effects. This was important to the community, because in addition to a high level of cancer deaths in the neighborhood, there were also many noncancer health problems reported by residents. But ATSDR said, "The levels of dioxin-TEQ in off-site soil are unlikely to cause noncarcinogenic health effects," even though the report gave the maximum level of 950 ppt from 1992 testing. The report also said, "Because the cancer risk in people from exposure to dioxin-TEQ is currently under scientific review [through EPA's dioxin reassessment], we do not know what carcinogenic health effects are likely." But the draft EPA dioxin reassessment did not nullify the EPA cancer risk information that EPA itself has continued to use, including for the Escambia site. The 50 ppt value has been ignored by EPA.

EPA's actions for the Escambia site in Pensacola also illustrate problems related to background contamination levels. The 1995 residential soil sampling provided data on four areas outside the immediate community but only a quarter a mile or less away. EPA has acknowledged levels of dioxin contamination of health concern only in a small portion adjacent to the Escambia site, where the average level was 587 ppt TEQ, but where several locations had levels above 1 ppb. The area a little further away from the Escambia site had an average of 70 ppt, and the next more distant area, 7.3 ppt. In the neighborhood closer to the second Superfund site, about a quarter a mile away from the Escambia site, the average was 12.4 ppt. For the four areas outside the residential community, a school yard had 7 ppt, a baseball field 7.5 ppt, a vacant lot 22.7 ppt, and a residential yard 7.8 ppt. Only the latter area is now included in the relocation commitment made by EPA, and CATE remains concerned that a part of the neighborhood (where the vacant lot data were obtained) is excluded, and has asked EPA to conduct more residential soil testing there.

EPA's original position, when only dioxin was considered, was that none of the areas, except the one adjacent to the Escambia site (where the 1 ppb level was exceeded) posed health risks and that they had not been impacted by the Escambia site. No data were obtained, however, to determine background levels in the Pensacola area. Nearly all dioxin levels were above the 2 ppt determined for residential exposure and 10-6 risk, including two areas where children spent time (the baseball field and school). It should also be noted that some residents were exposed as workers at the former Escambia operation, that the dioxin contamination of the residential soil had initially occurred many years before the site entered the Superfund program, that the EPA removal action that excavated an enormous amount of contaminated soil and piled it on the site had probably caused some releases of dioxin, that soils were contaminated by several other highly toxic chemicals, and there were pervasive health problems in the community as reported by CATE.

The issue of incremental dioxin risk was relevant as evidenced by an ATSDR Health Consultation for the Escambia site prepared in 1992 and its review by the ATSDR Health Activities Recommendation Panel. Because of "likely" worker exposures at the operating wood treating company and because "off-site exposures may have occurred," the panel recommended a health evaluation of residents living the site. Most importantly, it was to include physical examinations and laboratory tests. These were not implemented, however. The testing for dioxin in blood lipids could have provided important data regarding past exposures to dioxin among residents. ATSDR was more interested in conducting a conventional epidemiological study, but CATE rejected that approach on the grounds that only inconclusive results would be obtained, as previous experiences with small populations have found.

In 1996, ATSDR, at EPA's request, attempted to conduct some exposure surveys without first consulting the community. CATE had ATSDR halt its activities. According to CATE, there was too much distrust of ATSDR at the time and the community was afraid that EPA might manipulate the results to reverse its decision to relocate residents.

Focus on Permanent Relocation

In June 1995, the Escambia site was selected as EPA's National Relocation Evaluation Pilot site. The pilot was initiated "to test the extent of the Agency's authority under CERCLA and evaluate the range of EPA's decision making and implementation processes when conducting permanent relocations under Superfund."(2) CATE and other parties believed that the pilot project had been conceived, in large measure, because of the visibility of the demand for relocation at the Escambia site and several other Superfund sites with minority communities, and no other site was nominated by EPA regions for the pilot project. It was broadly understood to offer an opportunity for EPA to more fully invoke the CERCLA statute's authority to base relocation not merely on health threats, but also because of the law's explicit reference to protecting public well-being, as well as a cost-effectiveness argument for remedial alternatives. The Pensacola community hoped that EPA would consider broad social, economic impact and environmental justice issues, as well as traditional quantitative risk assessment data in its relocation decision.

In April 1996, EPA Region 4 issued a draft Proposed Plan for an interim remedial action consisting of permanent relocation of 66 households adjacent to the Escambia site, 21 of which were justified on the basis of health threats (because of dioxin contamination). In August 1996, an addendum was issued expanding the relocation to include 101 households. In October 1996, a full page advertisement ran in the Florida edition of USA Today newspaper focused on the plight of the Pensacola residents and was addressed to President Clinton. The ad featured endorsements by many diverse groups. Two days later the Region 4 Administrator announced an expanded relocation to include all 358 households, ending a two-year dispute with CATE. This was weeks before the presidential election, and after the Escambia site had already received considerable attention from both print and broadcast newsmedia. EPA later said that the "decision was based on a number of factors, including the contamination at the site, the potential uses of the site, the effect on the community of a partial relocation, and a number of other factors."(3)

This statement was not entirely consistent with the original news release by EPA Region 4 Administrator John H. Hankinson on October 3, 1996 that said the decision to relocate all residents was "based on the best scientific information available about the community's unique environmental, health and safety factors" and "the community's concerns, as well as our goal to protect the neighborhood's health, welfare and well-being." It was generally understood by CATE that EPA staff in both Region 4 and headquarters did not support the decision to relocate the entire community.

Activism Achieves Success

The head of CATE was an active member of EPA's National Environmental Justice Advisory Committee (NEJAC) effort. In May 1996, NEJAC held a Superfund Relocation Roundtable meeting in Pensacola which included a visit by participants to the Escambia site. The meeting contributed to higher visibility for the Escambia site within the environmental justice community and EPA. To a large extent, the relocation issue for Escambia was shaped into a significant signal for the entire environmental justice community concerned with Superfund sites. This visibility raised considerable concerns within EPA that providing permanent relocation for the Pensacola community could result in increased demands for relocation nationwide.

In November 1996, EPA Headquarters issued a memorandum to EPA offices(2) that was clearly designed to limit the precedent setting possibilities of the Pensacola relocation decision. The memo made it clear that EPA's national relocation policy would not be formulated until a later date and that, until then, EPA regional offices were expected to use existing EPA policy. The environmental justice community interpreted this as a directive to conduct business as usual, which meant resisting community demands for permanent relocation. There was a clear message that even though Pensacola had finally gotten the relocation decision it wanted, other communities would probably not receive the same treatment. It seemed that EPA was on track to portray the Escambia site as a special situation to avoid setting any precedents for relocation nationwide. Exactly how EPA would defend the Pensacola relocation decision would be very important for the national environmental justice movement. In the Record of Decision, signed in February 1997, EPA shifted its case for relocation away from reliance on health threats to "the cumulative impacts" of eight factors, "not because of any single factor." EPA's rationale for the Pensacola decision seems designed to be sufficiently site-specific to preclude other environmental justice communities from making similar demands. The ROD said: "The uniqueness of the site and the interaction of the many factors present here does not, in EPA's opinion, create a precedent for relocation at other Superfund sites." In some sense, a negative precedent was set in this ROD, because a risk of 10-4 was used as the basis for determining significant health risks instead of the more widely used 10-6 risk for residential areas and exposures. A somewhat positive precedent was the use by EPA of its own dioxin risk assessment data, rather than the higher "policy based standard" of 1 ppb that so frequently has been used by EPA in Superfund decisions.

Case Study 2: Marzone Inc./Chevron Chemical Company Site, Tifton, Georgia

A largely African-American residential area is close to this site in Tifton, Georgia. It consists of very low income people in trailer homes, more affluent middle class homes, and even some homes only recently constructed very close to the site. There were various pesticide formulation activities from 1950 to 1983 at the site. A major national company (Chevron) had a facility at the site from 1950 to 1970. Chevron became a cooperative potentially responsible party. Indeed, Chevron chose to use a special process for the Marzone site cleanup under Superfund. They formed the Marzone Project Team (MPT), which they and their contractors dominated, and on which EPA and the Georgia environmental agency joined as members. However, no representative of the community was given member status. The main objective of the MPT was to greatly accelerate the Superfund cleanup process. This would save considerable money for Chevron, but the community organization People Working for People (PWP), representing the community concerned about the Marzone site, told EPA that use of the MPT and the accelerated process had placed the community at a considerable disadvantage.

PWP's concerns included: the lack of community representation on the MPT that was making all key cleanup decisions; that EPA had compromised its independence and integrity by being a member of the MPT; that PWP's Technical Assistance Grant Technical Advisor was placed at a major disadvantage because of limited resources to address the fast-paced production of the Remedial Design/Remedial Action data and reports, which EPA had authorized the MPT to conduct simultaneously; and that the large public relations effort supported by Chevron and apparently sanctioned by EPA was misinforming the Tifton community.

Superfund History

There is little doubt that the acrimonious relationship between the Pensacola community and EPA Region 4 was raised to new heights in the Tifton community. This was largely because of the extraordinary close partnership between EPA and Chevron and the conduct of the MPT. PWP was knowledgeable of and had actively supported CATE's efforts in Pensacola. PWP was using the services of the same TAG Technical Advisor that CATE had used. PWP obtained an EPA grant for technical assistance much later in the Superfund process than had CATE (after rather than before the site's remedial studies and decisions). PWP was not as effective as CATE in challenging EPA positions. The presence of Chevron and the MPT, as well as a strong desire among EPA Region 4 officials to avoid another "Pensacola," was believed by PWP to contribute to it's failure to persuade EPA to conduct comprehensive residential soil testing, although it has continued its efforts to obtain the testing.

The one area where PWP was successful was in compelling EPA to focus on dioxin contamination at the Marzone site. In contrast to the Escambia site, where EPA had initially conducted testing for dioxins, EPA had totally ignored the dioxin issue for the Marzone site for ten years during which Chevron and other parties had conducted several removal actions, as well as a Remedial Investigation (RI). PWP's Technical Advisor quickly focused on the dioxin issue in early 1996 and eventually EPA required Chevron to conduct several rounds of supplemental RI soil sampling for dioxin testing. All of these efforts confirmed the presence of dioxins/furans at high levels in surface soils at the Marzone site. Because dioxin was found above EPA's 1 ppb action level, EPA was compelled to acknowledge the significance of the dioxin contamination. PWP's position was that EPA had been negligent in not having any testing for dioxins conducted earlier, because Superfund pesticide sites were well known to be associated with dioxin contamination. Moreover, PWP emphasized that EPA's own Superfund Preliminary Assessment in 1984 had identified three herbicides for the Marzone site, Silvex, 2,4-D, and 2,4,5-T, that have been associated with dioxin impurities.

All of the findings for dioxin contamination occurred after the 1994 Record of Decision (ROD) for the remedial cleanup of most of the Marzone site, defined as Operable Unit 1. This prompted PWP to demand that EPA reopen the ROD, make dioxin an official site contaminant, determine a cleanup level for dioxin, and reexamine the technology originally selected for the Marzone soil remediation, namely low temperature thermal desorption. In September 1996 EPA issued an Amended Proposed Plan and PWP suffered several losses, notably the selection of what PWP viewed as a high concentration level for the dioxin cleanup of 200 ppt corresponding to a cancer risk of 10-4 that would allow considerable dioxin contamination found at the site to avoid cleanup. EPA refused to change the cleanup technology (which has not been used for dioxin contaminated soils), and indicated that the most dioxin contaminated soils might be sent offsite for disposal. The actual Amended ROD had not been issued by EPA by the end of February 1997, at which time the U.S. Justice Department also withdraw the Consent Decree that had been waiting for final approval for some time. PWP protested to EPA that both circumstances warranted a halt to remediation activities by Chevron.

South Tifton Environmental Justice Study and Dioxin

The Tifton situation was complicated by the fact that EPA Region 4 had responded to community concerns about the presence of a large number of hazardous waste sites in Tifton by conducting the South Tifton Residential Area Investigation in March 1995. This effort was directly linked by EPA Region 4 to its environmental justice initiative. ATSDR played a role in the this study. Sixteen CERCLA sites were listed in the final report, three of which were actually part of the official Marzone Superfund site.(4) The investigation included a very limited number of samples for dioxin testing, especially near the Marzone site. When the study report was released in September 1995, the main message given to the Tifton community was that no significant residential contamination had been found.

However, after PWP obtained the services of its Technical Advisor, it discovered that the South Tifton study had actually found important evidence of dioxin contamination. The problem, from PWP's perspective, was that EPA had dismissed the findings of dioxin in all 14 samples solely on the basis that they were below EPA's action level of 1 ppb. PWP's analysis of the data found that the sample locations could be divided into three groups, based on distance away from the Marzone/Chevron Superfund site. It was found that the 5 residential soil samples closest to the site (about a quarter mile or less) had an average dioxin TEQ level of 65.2 ppt (with a maximum of 120 ppt). For the three locations further away the average was 5.9 ppt. For the 6 locations about one-half to a mile away the average was 2.6 ppt. However, the detection limits were unusually high for the 8290 method, suggesting systematic underestimates of TEQ dioxin. This was compounded by the procedure of ignoring all nondetects. EPA guidance is to use onehalf the detection limit. Correcting the EPA data resulted in TEQs for the three zones given above of 66.8, 14.4 and 10.5 ppt, with increasing distance from the Superfund site. PWP said this was strong evidence that dioxins (above background levels) had migrated from the site into the surrounding community by means of airborne transport of dioxin contaminated soil particles (from the cleanup site or from the original industrial operation at that site), and possibly also by surface water runoff. The corrected TEQs, moreover, indicated levels of health concern at all distances from the cleanup site, on the basis that EPA's risk assessment for dioxin at the Escambia site had found 2 ppt for cancer risk at the 10-6 level, and also that ATSDR scientists had published a paper supporting cleanup levels for dioxins as low as 40 ppt on the basis of noncancer health effects.(5)

Although ATSDR reviewed the data for EPA, it simply said that the levels found were below health concern, without providing any explanation or analysis, and ignored the 40 ppt level associated with noncancer effects, exceeded at three locations near the Marzone site. No problems with the data were noted. Neither EPA or ATSDR noted, at the time the South Tifton report was released, that no testing of dioxins had ever taken place at the two toxic waste sites fitting categories known to be likely to have dioxin contamination (pesticide and wood treating sites).

Site Dioxin Issue

Subsequently, in 1996, when testing showed widespread dioxin contamination at the Marzone/Chevron site, where EPA had previously established pesticide cleanup levels for 10-6 risk from residential exposure, EPA attempted to dismiss all findings below 1 ppb, choosing to focus on one area with levels well above 1 ppb (maximum of 3 ppb). For these test results onehalf detection limits were used for nondetects. The position that dioxin contamination in the main former pesticide factory surface soil was just background, and not a result of pesticides, was inconsistent with the average level of 45 ppt TEQ (maximum of 276 ppt), findings of dioxin in subsurface soil (greater than surface soil levels) and chemical storage tank contents, and the lack of measuring background TEQ in the Tifton area. Where subsurface dioxin levels were substantially greater than in surface soils, levels of site pesticides were also correspondingly greater than in surface soils, providing additional support for concluding that dioxin contamination was caused by some pesticides handled at the site. EPA Region 4 decided to use a cleanup level of 200 ppt for dioxin in soil, acknowledging that it corresponds to a 10-4 cancer risk for residential land use, even though the risk-based cleanup levels for pesticides at the Marzone site were based on 10-6 cancer risk for residential exposure.

An important dimension to the Marzone site dioxin issue is that both EPA and Chevron have stubbornly asserted that none of the dioxin contamination found at the Marzone site resulted from pesticide operations. PWP supplied EPA with information and analysis supporting its view that the dioxin contamination had resulted from pesticide materials and wastes, notably various herbicides. But EPA had accepted Chevron's assertions that the major dioxin contamination (i.e., above 1 ppb) had resulted from the burning of wood wastes, and that the contamination on the main part of the site, but below 200 ppt, was simply background contamination. At one point, EPA Region 4 sent PWP a letter that said that no herbicides had been used at the Marzone pesticide operations. But PWP was able to supply EPA with a remarkable amount of documentary evidence from official site documents that herbicides had been handled at the site. Nevertheless, neither EPA or Chevron changed its position. More recently, PWP has conducted extensive interviews with former pesticide workers at the Chevron operation. New information has emerged that contradicts several key positions of Chevron and accepted by EPA. These first hand accounts by ex-workers substantiate that the dioxin contamination found at Marzone resulted from pesticide materials, and PWP has petitioned the U.S. Justice Department for a criminal investigation and for assistance from EPA's National Ombudsman.

The Offsite, Residential Area Issue

An important distinction between the Marzone and Escambia sites is that the Tifton community did not raise the permanent relocation issue during the early history of the Marzone site and, in fact, as of early 1997, still had not. Although people live very close to the Marzone site, the situation was not as severe as at the Escambia site, where some homes were immediately over the site's fenceline. Moreover, some data on dioxin contamination in residential backyards had been obtained in 1992 as part of the removal action for the Escambia site. But at the Marzone site, none of the removal actions in the 1980s had included any site or offsite testing for dioxins. In Tifton, EPA's South Tifton study served to blunt community concerns about contamination in residential areas. In a practical sense, there was too little compelling data on residential soil contamination to support a widespread community demand for relocation. Instead, PWP employed a strategy of demanding more comprehensive and accurate residential soil testing, including obtaining support for it from ATSDR, but EPA refused. Another dimension to this situation should be noted.

Immediately adjacent to the Marzone site, on the other side of abandoned railroad tracks, is another hazardous waste site called Coastal Plains. A removal action had been taken there some years ago, but EPA had not placed the site on the National Priorities List so that a remedial cleanup would be done. The Coastal Plains site had been a wood treating facility and PWP's Technical Advisor examined the records for Coastal Plains, because EPA had sometimes invoked it as a source of the dioxin contamination found at the Marzone site. PWP focused on the fact that, according to EPA's records, there had been substantial contamination at Coastal Plains by pentachlorophenol, which was accepted as a major source of dioxin contamination at wood treating sites. PWP's Technical Advisor argued that there were probably very high levels of dioxin contamination at the Coastal Plains site, just as had been found at the Escambia site. Moreover, PWP argued that the Coastal Plains site was another likely source of dioxin exposure to the South Tifton neighborhood and it was probably the main reason that the South Tifton study had tested some residential soil samples for dioxin. PWP was concerned that the Coastal Plains site had never been fenced, was open to children, and was even closer to homes than the Marzone site.

In 1996, EPA reacted to PWP's demands for dioxin testing at the Coastal Plains site and conducted a special soil sampling, but it did so without notifying PWP or offering it any opportunity to review the sampling plan. Eventually, in early 1997, EPA provided the test data to PWP. The results showed very high dioxin TEQ levels not only on the Coastal Plains site (up to 24 ppb), but also around the site very close to homes. Shortly, thereafter, EPA Region 4 assigned a high priority for taking a removal action at the site. But PWP petitioned EPA to take no further investigative or removal actions and, instead, give a high priority to rescoring the site and proposing it for the NPL.

From an environmental justice perspective, PWP made an issue of the fact that at both the Marzone and Coastal Plains sites, EPA failed to obtain test data for dioxin contamination for many years, even though both sites fit Superfund site categories acknowledged by EPA to have high probabilities for dioxin contamination. Moreover, PWP also emphasized that EPA had ignored its own data on dioxin contamination in its South Tifton study. In many respects, the dioxin issue for Tifton has been much more of an environmental justice issue than in Pensacola, because there seems to this author to have been negligent and incompetent attention to dioxin contamination by EPA in three specific instances.

Another health and safety issue for the Tifton community is that EPA has been unresponsive to PWP concerns about potential dioxin air emissions from use of the thermal desorption equipment for the remedial cleanup, which will include treatment of soils with dioxin. PWP requested ATSDR to address this issue and it agreed to conduct a full health consultation on the safety and exposure concerns of PWP. A draft of that report was released at the end of February 1997. In early 1997, at PWP's request, ATSDR also obtained blood samples from a number of residents (selected by PWP) living near both sites for testing for dioxin and pesticides as part of an exposure investigation. Results were expected in March 1997.

Compliance With Environmental Justice Executive Order

After close examination of the history of these two sites this author concludes that the Executive Order (EO) on environmental justice has had little impact on actual Superfund program implementation. Indeed, all the discourse about environmental justice has largely ignored the basic fact that the EO had very few concrete requirements for Executive Branch federal agencies. Most EPA environmental justice activities have been in the realm of talk, meetings, and reports. However, these two case studies provide ample evidence that Superfund program administration has not explicitly focused on the support of environmental justice goals. Nor is there evidence of compliance with requirements in the EO.

The EO specifically required federal agencies to "ensure greater public participation." In the Tifton case, PWP strongly complained to EPA Region 4 that the official public meeting on the Amended Proposed Plan had been scheduled without consultation with PWP and that the notice of the meeting had not been sent to PWP's Technical Advisor, who was unable to attend the scheduled meeting. PWP argued that it required more time to assess the Proposed Plan and needed the active participation of its Technical Advisor. EPA Region 4 disregarded PWP's pleas for rescheduling the meeting and also subsequently refused to hold another official public meeting. Later, EPA also refused a request by PWP for a public meeting on the safety of the thermal desorption equipment and ATSDR's report on the issue. This behavior was clearly in contradiction to a basic requirement of the EO. In contrast, the experiences of CATE in Pensacola were much more positive, and EPA showed considerable responsiveness to requests for meetings, materials, and expanded opportunities for community participation.

Another example, from the Tifton situation, is that the EO referred to improved "data collection relating to the health of and environment of minority populations and low-income populations." Yet all of PWP's requests for comprehensive residential soil testing were denied by EPA. PWP's requests were based on several facts, including: limited evidence of dioxin contamination in the residential area; documented dioxin contamination in surface soils a short distance away at the Marzone site that had served as sources of fugitive dust emissions for decades; and a plausible case that the Coastal Plains site was probably also heavily contaminated by dioxins. PWP had also petitioned EPA to relocate an ambient air monitoring station in the residential area (that PWP had requested) because EPA had allowed Chevron to locate the station beneath a thick stand of trees. EPA did not honor the request. In contrast to what had occurred in Pensacola, EPA was unresponsive to community demands in Tifton.

A third example is that the EO said: "Environmental human health analyses, whenever practicable and appropriate, shall identify multiple and cumulative exposures." Moreover, EPA itself said in 1994 that its Superfund office "will develop tools for the site manager to factor in multiple exposures and unique risk scenarios in coordination with overall Agency efforts with regard to risk assessment."(6) In all the work at both the Escambia and Marzone sites, EPA refused to acknowledge the full range of multiple and cumulative exposures, particularly for dioxins. If it had, it would not have logically been able to defend using a cancer risk level corresponding to the 10-4 level, especially because the National Contingency Plan requires use of a 10-6 risk as the point of departure, nor would it have entirely ignored noncancer health effects. The use of the 200 ppt dioxin soil cleanup level appears quite contrary to the explicit requirement in the EO, because years of prior exposure to dioxins from the Superfund sites and other sources should logically lead EPA to use the more normal and stringent cancer risk level of 10-6 and 2 ppt. Interestingly, the risk assessment for the Escambia site derived a 10-6 risk based concentration for an industrial exposure scenario, and that dioxin level was 20 ppt. The levels found in the Tifton residential area were above even this concentration

Discussion and Conclusions

At the end of 1996 the environmental justice community perceived that the Pensacola community had achieved a major victory and would receive the permanent relocation of its affected residents as EPA had promised. In contrast, the Tifton community has not attracted comparable attention and concern within the environmental justice community, nor has it become a focus of newsmedia attention. In large measure, this is explained by the absence of demands for relocation in Tifton, where the main struggle has revolved around decisions for the cleanup of the Marzone site and requests for comprehensive residential soil testing.

The author believes that the Tifton community was negatively affected by the whole history of the Pensacola struggle, because EPA seemed to more strongly resist demands for residential soil testing. The unofficial message was that Region 4 had no intention of letting another Pensacola happen and that they understood that obtaining data on residential soil contamination was key to the success of the Pensacola efforts. Similarly, Region 4 staff chose the same dioxin cleanup standard for the Marzone site that they settled on for the interim ROD selecting permanent relocation of residents near the Escambia site (200 ppt TEQ corresponding to a cancer risk of 10-4 for residential land use). This choice for the Marzone site, however, was illogical, because EPA maintained its originally chosen remedial cleanup standards for pesticides, based on a cancer risk of 10-6. For the Escambia site, EPA could argue that it was using interim action levels (or Preliminary Remediation Goals) and that the final remedial cleanup standards had not yet been selected.

It is also significant that in Pensacola CATE was successful in obtaining the intervention of the Regional Administrator and in obtaining a change in EPA's site manager. But in Tifton PWP's request for a change in both the site manager and the community relations person was denied by senior Region 4 managers.

The strategy for the Tifton community shifted in 1996, because it had become clear that EPA Region 4 was not offering any flexibility on a host of key issues and demands, including residential soil testing. From an environmental justice perspective it is important to understand the unyielding positions of EPA as linked to the presence of a strong responsible party (i.e., Chevron) that EPA had become dependent on for financing of the Marzone site cleanup and, secondarily, to a bureaucratic commitment to avoiding another "Pensacola" relocation situation. Therefore, PWP made a strong request for assistance from ATSDR and by the end of 1996 had cooperatively worked out a number of details for exposure investigation activities by ATSDR. This was greatly facilitated by the involvement of the head of the agency, including a meeting in Tifton with community leaders. ATSDR also expressed openness to use its authorities to conduct residential soil testing, if necessary. Though nearly all Superfund site communities, especially ones where environmental justice issues were dominant, have had severe reservations about the effectiveness of ATSDR, the Tifton community believed it had created a major opportunity for ATSDR to demonstrate its new commitment to better serve community interests. Whether this happens awaits various ATSDR actions in 1997.

EPA's National Ombudsman has become a very important player in environmental justice struggles at Superfund sites, and he has enormous credibility and respect among grassroots community leaders. He was actively involved in the Pensacola situation for several years and attended several key meetings between EPA officials and CATE representatives. While CATE had little trust and confidence in EPA Region 4 staff, it had complete confidence in the Ombudsman who also helped in maintaining constructive relationships with the most senior Superfund officials in EPA Headquarters. At Tifton, PWP has also brought the Ombudsman into the situation, and his assistance was important in February 1997 in obtaining a commitment for a public meeting on the use of the thermal desorption equipment. This happened at the same time that the Justice Department withdrew the Consent Decree, ATSDR raised questions about the equipment, PWP petitioned EPA Region 4 to stop implementation of the cleanup, and Chevron decided to demobilize the equipment. The delay in implementing the cleanup at the Marzone site would provide time for the results of ATSDR's blood testing to become available.

In a real sense, both sites are works in progress, especially the situation in Tifton. Nevertheless, at this time what is most interesting is that the environmental justice issue has not been a significant positive factor in EPA's management of the sites. There simply is no evidence in the history of either site to indicate any positive impacts from President Clinton's Executive Order on Superfund decisions affecting public health and community concerns. In contrast, the African-American communities in Pensacola and Tifton have focused on the environmental justice issue, expecting that it would work in their favor. And this did happen to some degree for the Pensacola campaign to obtain permanent relocation of a large number of residents. But in Tifton, where the effort has focused on obtaining residential soil testing rather than relocation, the environmental justice issue has not yet contributed to success. There was a heightened sensitivity to the Pensacola community on the part of the most senior EPA officials, including the Region 4 Administrator and the two highest Superfund officials in EPA Headquarters, both African-Americans. This social dynamic has not yet materialized for the Tifton community, but if the blood testing of residents provides evidence of dioxin or pesticide exposure, then the situation may change significantly.

There are several lessons for the environmental justice movement. First, EPA is a science and technology based organization, and the Superfund program is focused on site remediation. Therefore, obtaining justice requires sound technical data. In this regard, both case studies demonstrate that a key step is obtaining comprehensive residential soil testing to quantify exposure to toxic chemicals and to link that exposure to health effects. A new focus on addressing community public health concerns by ATSDR and the results of the blood testing for the Tifton residents may also prove to be important.

Second, Executive Order 12898 has not changed the institutional culture in the U.S. EPA, nor the way a major program like Superfund is implemented by regional offices. Key Superfund decisionmakers show no particular understanding of, or sensitivity to, environmental justice goals. There is a real need for environmental justice training for Superfund's frontline managers, as well as for ATSDR staff. The environmental justice community involved with EPA needs to better understand the difference between talking about environmental justice with a limited number of EPA officials, versus having EPA program staffers and managers motivated, capable, and effectively implementing environmental justice principles and requirements.

Third, the Pensacola and Tifton case studies presented in this paper, and the details of the 1997 ROD for Escambia, illustrate the need for the environmental justice community to focus on the 1997 development of EPA's Superfund relocation policy.

Fourth, a more useful role for ATSDR in achieving environmental justice needs to be developed and the activities of ATSDR in Tifton are very important and should be watched closely by the environmental justice community.

References:
1. The White House. Executive Order 12898 - Federal Actions To Address Environmental Justice In Minority Populations and Low-Income Populations, Washington, D.C., February 1994.Back
2. Laws, E. P. Memorandum on Relocation Pilot Project at the Escambia Treating Company Superfund Site in Pensacola, Florida, November 13, 1996.Back
3. EPA Region 4. Record of Decision, Interim Remedial Action and National Relocation Pilot Project, Escambia Treating Company Site, Pensacola, Escambia County, Florida, February 12, 1997.Back
4. EPA Region 4. South Tifton Residential Area Investigation Report, Tifton, Georgia, September, 1995.Back
5. Pohl, H., et al. Public Health Assessment for Dioxins Exposure From Soil, Chemosphere, v.31, pp.2437-2454, 1995.Back
6. EPA. OSWER Environmental Justice Task Force Draft Final Report Executive Summary, Washington, D.C., 1994.Back

For Presentation at the Air & Waste Management Association's 90th Annual Meeting & Exhibition, June 8-13, 1997, Toronto, Ontario, Canada 97-MP15.01


Source: Joel S. Hirschhorn

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