Cross-posted from Valpo Law Blog.
On September 3, the EPA entered into a consent decree with two major companies to clean up lead and arsenic contamination in a residential area near the USS Lead Superfund site in East Chicago, Indiana.
The consent decree was filed with the US District Court for the Northern District of Indiana in Hammond (less than three miles due west of USS Lead).
Under the decree’s terms, which are subject to public comment and court approval, DuPont and Atlantic Richfield will perform some $26 million worth of cleanup, removing up to two feet of contaminated soil from an area that includes hundreds of residences, numerous parks, an elementary school, and the Carmelite Home.
The contamination came from lead-rich baghouse dust that was piled in the open air at the smelter site and blown by the wind into the neighborhood. The smelter began operations in 1920, converted to lead battery recycling in 1973, and closed in 1985.
The settlement was reached under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act), specifically 42 U.S.C. §§ 9606 and 9607(a).
Better known as the “Superfund law,” CERCLA draws one of the widest circles of liability anywhere in the law. Under CERCLA, any “potentially responsible party” can be held liable for the cost of cleaning up a designated Superfund site.
The sweeping scope of liability under CERCLA can seem unfair, especially when it’s your door that the EPA comes knocking on. But the rationale is straightforward.
Without such a rule, the EPA would have no one to pursue in cases like this: USS Lead itself went bankrupt decades ago. Yet someone has to pay to clean up the mess, and someone made money from the practices that led to the mess. It’s only fair, the logic goes, that those two someones should be the same.
Northwest Indiana is no stranger to CERCLA cleanups, but this cleanup is unusual in covering such a large residential area. As one local reporter learned, many of those in the path of the contamination were entirely unaware of it. Many probably still are.
The complaint (filed on the same day as the settlement) contains the following map of the affected area:
That’s approximately half a square mile of densely populated land. (The current settlement covers only Zones 1 and 3; any relief for the hundreds of people living in Zone 2 remains under discussion.)
Study after study has found that environmental contamination correlates more closely with the race of the people affected than with their income or other attributes. In essence, the darker your skin, the more likely your neighborhood is to be used as a dumping ground.
And it isn’t just contamination in general that correlates with race: lead contamination in particular disproportionately affects African-American communities. This is of particular significance as we learn more about the correlation between childhood lead exposure and violent crime.
In view of that pattern, even if there is no obvious arrow of racial causation here, it comes as no great surprise that the neighborhood downwind of USS Lead (unlike East Chicago as a whole) is overwhelmingly African-American.
Since this is after all a law school blog, let’s close with a hypothetical. Imagine for a moment that USS Lead is still in business. And imagine that a close review of crime data for East Chicago shows sharply elevated levels of violent crime precisely within the boundaries of the lead contamination. In that case, would there be any way for crime victims to recover from the polluter?
Should there be?