I served as Regional Administrator of Region 2 Environmental Protection Agency (EPA) consisting of New York, New Jersey, Puerto Rico, and the US Virgin Islands during the second term of former President George W. Bush.  Trumpist authoritarian members of my former Republican Party have accused me of “going native” and being influenced by the career professionals of Region 2 EPA.  To that charge, I enter an emphatic guilty plea.

Now I never contravened a single Bush 43 policy or executive order.  And I must emphasize that the EPA headquarters in Washington in the Bush 43 administration never restrained me in any way from instituting or continuing with any enforcement proceeding.

If a professional on my staff, however, recommended an enforcement or regulatory action that I felt furthered the goal of accelerating the pace of environmental protection while maintaining economic competitiveness, and if this was in an area of enforcement or regulation in which the Bush 43 administration EPA headquarters was silent, I would not hesitate to take such action.

At Region 2 EPA, I had the finest professional staff I had ever worked with at any agency of government.  Three individuals stood out: George Pavlou, the most effective Regional Superfund director in EPA history, whom I elevated to Regional Deputy Administrator before I retired; Walter Mugdan, a former Region 2 EPA General Counsel and an environmental lawyer of both incomparable competence and ethics; and Bonnie Bellow, a supremely masterful Director of Communications.

Now the Superfund area was of prime importance to me.  Its enactment was primarily the achievement of former New Jersey Governor Jim Florio while serving as a member of the US House of Representatives.  Its passage in 1980 as the

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), in my view, qualified Jim Florio as both the most significant New Jersey member of the US House of Representatives during the 20th century and the most impactful member of either the House or Senate on environmental policy in American history.

Under CERCLA, activities to clean up hazardous substances are characterized as either “removal actions” or “remedial actions.”  Generally, removal actions are interim emergency response actions to clean up or remove hazardous materials.  Remedial actions are efforts to permanently remedy the presence of hazardous materials.  Both these functions can most accurately be referred to as “Jim Florio Superfund legacies.”

A Superfund remedial action is enforced by EPA and its state delegatees as well to compel polluters to clean up and restore to beneficial use contaminated land and bodies of water throughout our nation. In cases where no solvent polluter exists with regard to the specific contaminated property, Superfund provides the financing for government to accomplish the remediation.

A removal action is conducted either by 1) EPA directly, financed by the Superfund, or preferably; 2) EPA or its state delegatee overseeing and enforcing actions conducted by responsible private parties at their expense.  At Region 2 EPA, George Pavlou institutionalized the Jim Florio removal action legacy as a matter of boiler plate, to enable the removal of the hazardous release to proceed thoroughly and with all deliberate speed.

The initial task of the Pavlou emergency response system is the designation of the governing authority responsible for enforcement and the private party financially responsible for removal.  It should take no more than a day or two to make these designations.

In cases where the state did not appear to have the capacity or expertise for an immediate effective response, George would have EPA retain the lead enforcement function.  The designation of the lead governmental enforcement body and the private party responsible for removal of the hazard is the first and most fundamental task of the Jim Florio removal action legacy.

In the case of the East Palestine, Ohio Norfolk Southern derailment, the Biden EPA tragically ignored the Jim Florio removal action legacy, resulted in both an environmental and political disaster.  When I speak of the “Biden EPA,” I am including both the office of the National Administrator Michael Regan and Region 5 EPA, which includes the State of Ohio.

Their neglect of the Florio legacy was exemplified by the initial foolish EPA deference to the State of Ohio as the lead agency and the unpardonable EPA delay in ordering Norfolk Southern to perform the removal and cleanup.

The State of Ohio proved to be woefully incompetent to enforce the removal and associated cleanup. The derailment took place on February 3, and it took EPA a full 18 days until February 21 to designate Norfolk Southern as the responsible party for the performance and financing of the emergency response.

The negative environmental impacts are still being received and determined, but the deleterious consequences are already evident.  The derailed train was carrying vinyl chloride, a carcinogenic chemical.  It is not surprising that there have been widespread complaints from East Palestine residents of bronchitis, headaches, nausea, rashes, and other respiratory issues.   It is estimated that over 43,000 aquatic animals have died as a result of the chemical release from the train derailment.

I interviewed George Pavlou, and his first response regarding the East Palestine derailment was that EPA, not Ohio, should have taken charge of enforcement and issued the removal order to Norfolk Southern on Day One.  He elaborated as follows:

This is a classic case of EPA retaining the lead for the emergency response. I just do not see how Region 5 EPA allowed the State to have the lead without negotiating for itself a more substantial role besides air monitoring. 

We are dealing with a known carcinogen, vinyl chloride, that can explode under these circumstances in confined spaces. Inhalation is the pathway to exposure and I understand why people are scared and do not trust anybody.  I would not want to breath the air in this situation either.

Fortunately, vinyl chloride has a high vapor pressure and it is a gas at atmospheric pressure and breaks down within two to three days when on the surface of waters or soils.

For this reason, I would have authorized an immediate and temporary relocation of seven days and using those seven days to undertake a complete and thorough sampling program of all media, including the houses (indoor air) in a ring way fashion.

All data would be automatically posted on the web.

We would have the OSCs (On Scene Coordinators) and community affairs specialists stationed in the community to answer all questions and respond to citizen concerns.

The good news for Region 2 EPA is that Joe Biden has appointed as Regional Administrator Lisa Garcia, an outstanding professional whose career has been one of exquisite environmental accomplishment.  I have no doubt that she will emphasize the Jim Florio Superfund Legacy and follow the Pavlou system.

Yet there is a frightening unintended consequence of the Biden East Palestine environmental debacle.  Donald Trump and his acolytes are using this tragedy for a political purpose:  The exacerbation of racial conflict in America.

The Trump visit to East Palestine was both ironic and highly hypocritical, for no American president has been more anti-environmental than Donald Trump.  He ran for president on a pledge to abolish the EPA, , and while he did not implement this promise, he did largely eviscerate the EPA regulations designed to protect public health.

When it came to environmental enforcement, the Trump administration was a playground for polluters.

Eric Schaeffer, Executive Director of the Environmental Integrity Project and former Director of Civil Enforcement at EPA, described environmental enforcement under Trump as follows:

“The results released today and over the past four years confirm the long-term decline in federal enforcement of environmental law, whether compared to the record under the Obama Administration or over the past two decades.”

“These declines in environmental enforcement can be found in the number of cases brought against violators; the number of inspections to check on whether industries are complying with federal environmental laws; the penalties that polluters are required to pay for breaking those laws; and the amounts that responsible parties are required to spend to clean up abandoned dumpsites under Superfund, or to install pollution control equipment needed to stop illegal emissions of air or water pollution.”

Given Trump’s massive disinterest in the environment during his administration, his visit to East Palestine on February 22 initially caught most political observers off-guard.  His administration had also been a catastrophe for rail safety as well as the environment.

The Obama administration initiated processes that would have set rules on minimum crew sizes and established a requirement of new electronic braking technology on trains carrying large volumes of hazardous flammable liquids.  The Trump administration scrapped both these measures.  Norfolk Southern was heavily involved in lobbying the Trump administration for the rescission of these regulatory proposals.

Furthermore, Trump did not visit a single train derailment site, including fatal ones, during his administration.

Yet within days, the purpose of Donald Trump’s journey to East Palestine became evident.  It had nothing to do with environmental or rail safety concerns. It was all related to igniting an ugly race war, led by Trump MAGA personages Charlie Kirk and Fox prevaricator-in-chief Tucker Carlson.  . The following verbiage from Carlson is the essential message of the Trump East Palestine race war:

“East Palestine is overwhelmingly white, and it’s politically conservative,” he said recently. “That shouldn’t be relevant, but it very much is.”

Carlson went on to describe East Palestine as a “poor benighted town whose people are forgotten, and in the view of the people who lead this country, forgettable”. He highlighted the indisputable suffering of local residents who were forced to evacuate a two-mile area and since they have returned home remain fearful about the quality of the air and water.

Then Carlson contrasted such hardship with what he called the “favored poor” who live in “favored cities” such as Detroit and Philadelphia – a clear euphemism for urban centers, often led by Democratic mayors, with large Black populations.

Trump and the MAGA movement will stop at nothing to promote racial conflict that promotes their political fortunes.  Even environmental catastrophes are not exempt as arenas for their attempts at racial polarization.

It must be said also that while Biden was justified in visiting Ukraine, he first should have visited East Palestine.  His failure to do so gave fuel to the America First isolationist foreign policies advocated by Trump and the MAGA movement, the same policies that enabled the Nazis to conquer Europe and implement the Holocaust.  Knowledge of history is not a strong suit of either Donald Trump or his MAGA followers.

The ultimate environmental lesson of East Palestine is that the Florio Superfund legacies should always be strictly followed. They provide a good guide to an enhanced environment, free from political distractions.

Alan J. Steinberg served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.