Trump’s Superfund Nominee Spent Years Fighting for Polluters

Though he has openly disparaged much of his agency’s mission, Environmental Protection Agency Administrator Scott Pruitt has remained steadfastly enthusiastic about Superfund, the federal program responsible for cleaning up some of the country’s most contaminated industrial sites. The EPA budget brief released in February said the agency would “accelerate the pace of cleanups” and make an additional 102 Superfund sites and 1,368 brownfield sites “ready for use” by September 30, 2019. That move follows Pruitt’s creation of a “Superfund task force,” which laid out the program’s priorities in July and, in December, issued a list of 21 sites to be fast-tracked for cleanup.

Yet even as he’s offered up these promises, some of Pruitt’s budgetary and hiring decisions have threatened the possibility that he’ll be able to fulfill them. The EPA’s proposed 2019 budget would cut the enforcement staff necessary to track down polluters and hold them accountable.

Perhaps even more undermining to the program are the people Pruitt has chosen to run it. First there was Albert Kelly, a former banker who had contributed to Pruitt’s campaigns and whose bank had given him loans, appointed to head the Superfund task force last May despite the fact that he had no previous environmental experience. And now comes Trump’s nomination for Kelly’s boss at the office responsible for managing hazardous waste: Peter Wright, a man with an extensive history with Superfund — fighting EPA cleanups on behalf of polluters.

DEFENDING THE COMPANIES THAT CREATE THE HAZARDOUS WASTE

From the beginning, the government’s efforts to remediate lead smelters, mines, paper mills, refineries, landfills, and the like under the Superfund program have been dogged by delays. Superfund was created in 1980 to remediate the most egregious industrial messes that companies were unable or unwilling to clean up themselves. At first, the program was mostly paid for by a tax on the chemical and oil industries. But the rate of cleanup got infinitely worse after 1995, when Congress allowed that tax to expire, leaving taxpayers to foot the bill. The number of completed Superfund cleanups (of sites not owned by the federal government) dropped from 80 in 2000 to 13 in 2013, according to a 2015 report by the Government Accountability Office. While presidential administrations have come and gone, hundreds of communities have awaited the removal of dangerous chemicals for decades as they languished on the ironically named “National Priorities List.”

Scott Pruitt promised to fix that. But his first step was to appoint someone to head up his Superfund reform initiative whose experience with Superfund sites seemed to be limited to living near one. Like about half of the more than 1,300 Superfund sites, the Wilcox Oil site in Albert Kelly’s hometown, Bristow, Oklahoma, was polluted by companies that no longer exist. It’s been 96 years since Albert Rollestone sold Continental Petroleum, one of the companies that originally operated on the land that is now the Wilcox site. In the early 1900s, Rollestone shared a house with Kelly’s grandfather, a banker whose fortune came partly from oil. Both men profited from the Bristow oil boom. Rollestone, whose bank eventually merged with one the elder Kelly ran, went on to live “on a prominent Easy Street corner,” as the magazine Petroleum Age wrote at the time, and Kelly’s community bank, now known as SpiritBank, remains in operation.

While Continental and the six other companies that originally operated on the land have long since ceased to exist, their pollution remained. On a chilly Tuesday last month, it took the form of black goo that had oozed up from the ground and hardened into tarry patches dotting Glen Jones’s backyard. Jones, 73, hoped for a peaceful retirement on his 20-acre property when he bought it 14 years ago. That was before the EPA found elevated concentrations of lead, arsenic, 2-methylnaphthalene, and the carcinogen benzo(a)pyrene in the 125-acre swath of Bristow that includes his backyard and, in 2013, declared it a Superfund site.

For most of the past year, while the position above him has remained vacant, Kelly, the grandson of Rollestone’s business associate, has been running the $1 billion program that oversees the cleanup of Superfund sites, including the one in Bristow. While Kelly is new to this professional world, Wright, Trump’s nominee to head the EPA’s Office of Land and Emergency Management, has an extensive track record with hazardous waste: For the last quarter-century, he has defended companies responsible for some of the biggest of these industrial disasters, including Dow Chemical, where he has worked for more than 18 years, and Monsanto, where he worked for seven years before that.

The Senate has yet to schedule Wright’s confirmation hearing. If confirmed, he would oversee emergency response as well as cleanups under the Superfund program, which is mostly used for abandoned industrial sites, and the Resource Conservation and Recovery Act, which is designed for sites that are still in use. Together, Dow and DuPont, which merged in 2017, are responsible for the remediation of nearly 200 Superfund sites and more than 300 sites being cleaned up under other laws, including the RCRA, according to DowDuPont’s Securities and Exchange Commission filing. Monsanto is associated with at least 100 Superfund sites and seven RCRA sites, according to the EPA website. A spokesperson for Monsanto could not confirm the number of sites the company has been involved in remediating.

While Pruitt has promised to speed cleanups, as an attorney representing companies that have to pay cleanup costs, part of Wright’s job has been to avoid liability. Among the complicated environmental messes Dow is now cleaning is Rocky Flats, where the company manufactured triggers for nuclear weapons. An EPA and FBI raid of the plant in 1989 led to discoveries that plutonium and tritium had leaked into local water — and spurred the environmental agency to add the site to the Superfund list that same year. Thousands of residents have since sued. In an emailed statement, Dow spokesperson Rachelle Schikorra noted that the EPA closed the Rocky Flats cleanup project in 2006 and that legal cases associated with historical operations of this site have settled.

But it is a mess in Michigan, surrounding Dow’s headquarters in Midland, that is the company’s “largest and most significant environmental matter,” as Wright’s bio on an industry consulting group webpage points out. The company has released highly toxic dioxins and furans into the Tittabawassee River and other local waters since at least the 1930s, and waste from its Vietnam War-era production of the herbicide Agent Orange added to the river’s chemical stew. The contaminants have flowed into the nearby Saginaw River, the Saginaw Bay, and Lake Huron, ending up at least 50 miles from the plant where they originated.

Ethics experts say Wright should recuse himself from work on the Midland site. “You’d worry, potentially, that given the magnitude of the issue and its importance to Dow, that in this revolving-door situation he might favor Dow’s point of view,” said Bruce Green, director of the Louis Stein Center for Law and Ethics at Fordham University. “If I were in his confirmation hearing, I would ask whether he plans to recuse himself.”

Kathleen Clark, a professor of legal and government ethics at Washington University School of Law, added that Wright’s role as managing counsel at Dow would seem to trigger more sweeping restrictions on his work. “Legal ethics standards would make it a lifetime ban, if, as is almost certainly the case, he’s learned confidential information from Dow about this,” Clark said. She says the restrictions should go even further. “If he participated or had confidential information in the proceedings involving any of DowDuPont’s other sites, he may need to recuse himself from government work on those as well.”

In her statement, Dow’s Schikorra said that Wright was unavailable to comment for this piece but described him as “directly involved in negotiating 14” cleanup agreements with the EPA. “Peter Wright has been the steadfast voice at the table on the mid-Michigan dioxin issues. His in-depth understanding of both regulations and real-world solutions was instrumental in resolving this highly complex legacy issue,” Schikorra said.

Schikorra’s statement also said that the company has made “tremendous progress in resolving the mid-Michigan dioxin issue” and noted that Dow is “working cooperatively with, and under the direction of regulatory agencies, to remediate and restore areas impacted by our historical operations. We are focused on resolution and remain committed to protecting the health and well-being of the communities in which we live and work.”

While Wright has served as its managing counsel, Dow has argued against strengthening the cleanup standard for dioxin at the Michigan site, slowed the pace of the river’s cleanup, and withheld results of its own research from the state. When the EPA tried to force the company to speed up its process, Dow fought back hard.

A decade ago, an EPA regional administrator named Mary Gade got fed up with the company’s resistance to addressing the dioxins in Michigan. In January 2008, Gade, whose region included the Dow headquarters, decided to stop negotiating with the company, which had declined to do some testing requested by the state and the EPA. Gade instead tried to use her emergency powers to compel Dow to clean up the most contaminated waterways. Weeks after the decision to stop negotiating, Dow officials, including Peter Wright, met with Susan Bodine, then an EPA assistant administrator who worked at the agency’s Washington headquarters. According to an emailed letter they sent Bodine after the meeting, the Dow officials requested her help putting matters “back on a constructive track.” In May 2008, Gade said EPA headquarters had told her to resign or be fired; she resigned. Gade didn’t return calls from The Intercept, but at the time of her ousting told the Chicago Tribune, “There is no question, this is about Dow.”

Dow spokesperson Schikorra said no one at Dow had any role in Gade’s departure from the EPA.

While Wright’s nomination is pending, Susan Bodine is already back at the agency. After spending several years as a lobbyist, she was confirmed to run the EPA’s enforcement office in December.

TRACKING DOWN POLLUTERS

Challenging as it is for the EPA to force known polluters to take full and prompt responsibility for cleanups, the agency’s job is considerably more complicated when no company is clearly liable for the contamination. EPA workers with titles like “civil investigator” and “cost recovery expert” are tasked with sorting through the messiness that impedes cleanups in such instances. While it’s easy to find celebrated titans of industry — in Bristow, for instance, pictures of Rollestone and the Kellys hang in the town square — it is considerably more difficult to follow the trail from defunct companies to existing, solvent ones, especially since corporations often purposefully confound it.

It has become standard corporate practice to dodge cleanup costs using a range of strategies, including bankruptcies, mergers, and corporate name changes. “To the extent that companies can confuse the matter, they do,” said Leo Mullin, who worked at the EPA tracking down polluters of Superfund sites for 24 years before retiring in 2013. “Their basic line is, ‘It’s not me.’”

Monsanto, which produced several chemicals that have led to Superfund cleanups — including PCBs and glyphosate, the active ingredient in Roundup — undertook a dizzying corporate transformation in the 1990s, when Wright was serving as one of the company’s environmental attorneys. In 1997, a spinoff company called Solutia acquired Monsanto’s chemical business and liabilities and subsequently went bankrupt, while the profitable part of the company merged with Pharmacia and Upjohn and was ultimately acquired by Pfizer.

“In places where there was no institutional memory” of this elaborate series of maneuvers, “they got left off the hook,” said Mullin.

“Under our agreements with Pharmacia and Solutia, today’s Monsanto manages many of the legacy liabilities from the former Monsanto’s operations before 1997,” a spokesperson for the company wrote in a statement to The Intercept. “Where Monsanto has been determined to have responsibility relating to PCBs, we’ve met those obligations and we’ll continue to do so. In addition, since the 1950s there has been and continues to be a Monsanto at our headquarters address here in St. Louis. The EPA knows where to find us.”

The need for forensic accountability became more pressing in 1995, when Congress allowed the tax on the chemical and oil industries that had paid for cleanups to expire. Without replenishment, the “Superfund” for which the program was named was depleted by 2003. To cover the rest of the cost of the massive environmental damage, it had to rely on investigators like Mullin to track down polluters and force them to pay.

Mullin and his colleagues were trained to treat the defilement of the soil, air, and water as both a solvable mystery and a serious crime. “We had someone who was former SEC and DEA. We had two retired Philly cops, five ex-IRS people like myself, and a private investigator,” Mullin said of the Philadelphia office where he and others scoured databases, pored over property records, and dug through historical documents in their efforts to nab companies that were trying to escape and minimize their environmental liability.

When done well, the work is extremely lucrative, accounting for one of the agency’s few income streams. Mullin estimated that the projects his team worked on brought in more than $600 million during the 24 years he served as a forensic investigator in the Superfund program. During fiscal year 2016, Superfund enforcement cost the government $150 million, while bringing in more than $1 billion in responsible party commitments to perform cleanups and another $147 million in payment of government costs.

While the EPA’s job of tracking pollution liability always involved some level of detective work, the corporate deceptions have become more sophisticated, fast-moving, and difficult to crack in recent years, according to Mullin. “The issue of buying and selling assets to get out of an industry — all that stuff can change in an instant now with the speed of commerce.”

Yet, as the liability trail became vastly more complicated, the funding to pay investigators to follow it has dropped. The number of investigators in the Philadelphia office peaked at 10 when the Superfund budget overall peaked — in the early 1990s — and is now three, according to Mullin, who keeps in touch with his colleagues in the office. Trump’s proposed budget for fiscal year 2018 included 37 percent reductions in funding for Superfund enforcement and suggested cutting the program overall by 30 percent. Last week, Congress rejected those cuts, voting to keep funding for EPA flat and add $66 million for Superfund sites. The EPA did not answer questions from The Intercept about the current number of investigations at the agency.

The proposed budget for 2019, which was released in February, slashed the EPA’s overall funding by 26 percent compared to 2017, the most recent period with accurate spending totals. While funding for Superfund cleanups remained relatively flat, the administration is seeking to cut some of the budgetary lines that pay for both the investigators who trace the pollution back to its origins and the lawyers who can then force corporate entities to pay for cleanups in its signature program. The 2019 budget would also reduce funding for the Department of Justice, which pays for government lawyers to force companies to clean up hazardous waste at Superfund sites. (Pruitt had previously tried to eliminate the DOJ funding altogether.)

To be sure, the damage to Superfund in the coming budgets isn’t as dramatic as overall cuts to the EPA proposed in Trump’s most recent budget. But cuts to Superfund enforcement don’t just undermine the program’s ability to track down polluters and hold them responsible; they also upend the fiction that Trump’s EPA has any interest in environmental protections.

“It is just a stunning action by the guy who keeps trying to say he is really concerned about public health and safety and touts that he’s returning the agency to basics,” Betsy Southerland, who spent 10 of her 30 years at the EPA working on the Superfund program, said of the proposed reductions. “That same champion of Superfund, he’s asking for cuts in enforcement.”

The cuts to the staff that can make polluters pay for their own messes are part of a larger trend away from enforcing environmental laws and regulations taking place under this administration. In addition to cutting some of the enforcement necessary for Superfund cleanups, the proposed budget also includes cuts to monitoring used for enforcement as well as funding for criminal enforcement. By law, the EPA office that investigates environmental crimes is supposed to have 200 agents. But the criminal enforcement division currently has 143 agents, according to an agency spokesperson, and cuts to its budget would likely whittle its staff further. Meanwhile, the budget would completely eliminate an enforcement division dedicated to oil spills.

Environmental enforcement cases have already dropped sharply in the past year. According to Public Employees for Environmental Responsibility, “The 2017 case referrals to the Department of Justice for prosecution are below annual levels going back to 1990. The pace EPA is setting through the first half of FY 2018 would be the lowest in 30 years.” In the first 12 months of the Trump administration, the EPA collected almost 60 percent less in penalties from environmental polluters than the agency did during Obama’s first year in office, according to a February report from the Environmental Integrity Project. The report also showed a precipitous drop in the amount spent on pollution controls by companies the EPA has cited for various violations. Under Trump, these companies spent $966 million on pollution controls such as equipment upgrades, monitoring and maintenance, less than a third of the $3.3 billion that violators paid for these things in the first year of the Obama administration. The EPA declined to comment for this story.

While enforcement activities, including Superfund, are a wise investment of tax dollars, the money that corporations put into diffusing their responsibility at Superfund disputes is also well spent. The agency contacted several companies about their potential liability for pollution at the Superfund site in Bristow, Oklahoma, including Kinder Morgan, ConocoPhillips, and Chevron. Though all have some corporate connection to the original companies, having subsumed or merged with them or their successors, all denied their responsibility for cleaning up the site.

After the EPA approached ConocoPhillips about the site in 2013, Phillips66, which spun off from ConocoPhillips in 2012, responded with a 29-page letter complete with stock certificates from 1920 that argued the company had no responsibility for the mess. Chevron sent the EPA a 90-page response denying its responsibility. And Kinder Morgan, which acquired El Paso Energy Corporation in 2012, which was itself a successor to one of the original companies operating on the Oklahoma Superfund site, Wilcox Oil, sent the EPA a more than 1,100-page response to its inquiry. Meanwhile, the bulk of the work getting rid of the waste in Bristow awaits an agreement with a responsible party.

The cleanup of waterways near the Dow headquarters in Michigan has also proceeded at a glacial pace. After first denying that it had produced dioxins found in the water, Dow later said that the chemicals weren’t dangerous at the levels they were found in Michigan waters, though studies had already found them to increase the rates of all cancers in humans and affect reproduction. (As recently as 2005, Wright argued that environmental exposure to dioxins didn’t pose a threat to human health.)

Dow’s statement said that the company “has undertaken considerable efforts to reduce dioxin emissions” and is “on track to complete the cleanup of the Tittabawassee River and floodplain by 2020.” But the dioxins and furans remain in the water — and some local environmentalists question when, if ever, they’ll be fully cleaned up.

“Dow totally derailed the cleanup plan,” said Michelle Hurd Riddick, a nurse and member of the Lone Tree Council, a Michigan environmental group that has been working to get Dow’s chemicals out of local waters for almost 20 years. “They’ve just thrown up more and more roadblocks to slow down the process.” Hurd Riddick says she has no confidence that, once he’s at EPA, Wright will clean up any highly contaminated site. “We’ve had the highest level of dioxins in the country,” she said. “If he didn’t take our contamination seriously, he won’t take any site seriously.”

This article was reported in partnership with The Investigative Fund at The Nation Institute, now known as Type Investigations.