Using Institutional Controls in Anticipation of Superfund Site Disasters

• Pages: 10162-10172
• Date: 01 March 2025
• Published date: 01 March 2025
• Author: Maureen Hartwell
• Subject Matter: Environmental Law

55 EL R 1016 2 ENVIRONMENTAL LAW REPORTER MAR/APR 2025

USING INSTITUTIONAL

CONTROLS IN ANTICIPATION

OF SUPERFUND SITE DISASTERS

by Maureen Hartwell

Maureen Hartwell is a 2025 J.D. candidate at Pace University’s Elisabeth Haub School of Law.

About 73 million people live within three miles of

a Superfund site.1 Compared to the genera l popu-

lation, the population within this range is lower-

income, ha s more Indigenous people and people of color,

and is more burdened by other environmental stressors

(e.g., poor air quality, lead paint, etc.).2 When natural

disasters occur a round toxic sites, the results can be cata-

strophic. For example, dioxins—chemicals that can cause

cancer and liver and nerve da mage—were dumped in and

around the San Jacinto River near Houston by paper mills

in the 1960s.3 ough the responsible parties installed a

temporary cap over the waste in 2011, during Hurricane

Harvey in 2017, heavy da mage to the cap resulted in hig h

levels of dioxins detected in the area.4

Natural haza rds caused approximately 17,000 toxic

material releases bet ween 1990 and 2010.5 Flooding events

(inland and coasta l) were most numerous and caus ed about

26% of the total number of releases. Similarly, another

20% were the result of hurricane exposure, many resu lt-

ing from major episodes in 2005 and 2008.6 Storms, wind

events, wildres, earthquakes, and temperature-related

events were responsible for releases of toxic materials.7

Overall, the number of contaminant releases resulting

from natural hazard exposures has increa sed over the past

three decades, co-occurring with enha nced potential for

serious human and environmental impacts. 8 ese impacts

are not limited to the immediate area around a site, as

1. U.S. Environmental Protection Agency (EPA), Supporting Environmental

Justice at Superfund Sites, https://www.epa.gov/superfund/supporting-en-

vironmental-justice-superfund-sites (last updated Feb. 6, 2025); E-

 L I (ELI), I C  U (1995),

https://www.eli.org/sites/default/les/eli-pubs/d7.02.pdf; ELI, P-

 P H  S S: C I C

M  C (1999), https://www.eli.org/sites/default/les/

eli-pubs/d10.01.pdf; Comprehensive Environmental Response, Compen-

sation, and Liability Act (CERCLA), 42 U.S.C. §§9601-9675. is Com-

ment uses the terms “CERCLA” and “Superfund” interchangeably.

2. U.S. EPA, supra note 1; Chloe Reichel, Toxic Waste Sites and Environmental

Justice: Research Roundup, J’ R. (Sept. 24, 2018), https://jour-

nalistsresource.org/environment/superfund-toxic-waste-race-research/.

3. Climate Change Could Spell Disaster for Superfund Sites, C R-

 P (Feb. 17, 2022), https://www.climaterealityproject.org/blog/

climate-change-could-spell-disaster-superfund-sites.

4. Id.

5. Hatice Sengul et al., Analysis of Hazardous Material Releases Due to Natural

Hazards in the United States, 36 D 723 (2012).

6. Id. at 723.

7. Id.

8. Kevin Summers et al., National Hazards Vulnerability and the Remediation,

Restoration, and Revitalization of Contaminated Sites, 67 E’ M. 1029

(2021).

downwind and downstream communities a re also at risk.

For example, there is a three-mile stretch of the Black R iver

in New York contaminated with polychlorinated biphenyls

(PCBs).9 e site includes wastewater discharge from the

Carthage a nd West Carthage Water Pollution Control

Facilities, which are upstream from the contamination.10

Understanding the nearly impossible task of containing

contaminants from Superfund sites, it is imperative to nd

solutions in anticipation of disasters that scientists project

will only increase in ma gnitude and frequency.11 is Com-

ment proceeds in six parts. Part I identies the challenge

of increasing natural disasters and their impact at Super-

fund sites, which are toxic havens. Part II identies eorts

that the U.S. Environmental Protection Agency (EPA) and

other federal agencies have taken to make Superfund sites

more climate-resilient.

Part III identies and explains institutional controls

(ICs) as a potentially underutilized tool for mak ing Super-

fund sites more climate-resilient. Part IV identies specic

land use policies that municipalities and site managers

can implement as ICs to achieve climate resilience at and

around Superfund sites. Part V provides recommendations

for implementing ICs throughout dierent stages of the

cleanup process. Part VI concludes.

I. Natural Disasters Near Superfund Sites

Natural disasters a nd the consequences thereof will only

increase in frequency and intensity in the coming years.

Over the past ve years, the United States has experienced

an average of 18 billion-dollar climate disasters each year.12

In 2024 (as of September 10), there were 20 conrmed

weather/climate disaster events, with losses exceed ing $1

9. U.S. EPA, Superfund Site: Black River PCBs Town of Champion, NY, https://

cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0206296 (last visited

Feb. 10, 2025).

10. Id.

11. Sonia I. Seneviratne et al., Weather and Climate Extreme Events in a Chang-

ing Climate, in C C 2021: T P S B.

C  W G I   S A R

  I P  C C 1513 (V. Mas-

son-Delmotte et al. eds., Cambridge Univ. Press 2021), https://www.ipcc.

ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Chapter11.pdf.

12. Penny Gusner, Natural Disaster Facts and Statistics 2025, F (Jan.

3, 2025), https://www.forbes.com/advisor/homeowners-insurance/natural-

disaster-statistics/.