Birmingham Bribery Trial Ends, but Who Should Pay for the 35th Avenue Superfund Site?
October 4, 2018 by mjb443
By Jie Yang, staff contributor.
Over the summer, a big firm lawyer and a coke company’s senior executive were both convicted of bribing a former state legislator in order to prevent the EPA from listing the 35th Avenue Superfund Site located in north Birmingham, Alabama on the National Priorities List. How did this corruption happen, and what were the underlying causes?
On July 20, 2018, a federal jury found Balch & Bingham lawyer Joel Gilbert and Drummond Company’s vice president David Roberson guilty of bribing a former Alabama legislator Oliver Robinson in order to prevent the Environmental Protection Agency’s (“EPA”) proposed action in Birmingham, Alabama. Robinson pleaded guilty in September 2017.
This case arose from the EPA’s proposal of adding the 35th Avenue Superfund Site located in Birmingham to the National Priorities List (“NPL Listing”) in September 2014. The 35th Avenue Superfund Site has been identified by the EPA as consisting of residential soil contamination of benzo(a)pyrene, arsenic and lead. The NPL listing would have allowed the EPA to use the federal Superfund Trust Fund to conduct long-term remedial actions at the site provided that Alabama agreed to fund 10% of the cleanup costs. Such contribution from Alabama would have cost millions of dollars. However, the EPA and Alabama could attempt later to recover the costs from companies determined to be responsible parties through negotiation or litigation. ABC Coke, a division of Drummond is one of the five companies identified by the EPA to be a potentially responsible party, and could have faced tens of millions of dollars in cleanup costs and fines.
To oppose the NPL listing, defendants allegedly conspired to bribe Robinson through a valuable consulting contract. He was allegedly asked to pressure state officials and residents to oppose the EPA’s proposal, to meet with the EPA representatives, and to vote on a joint resolution in the legislature objecting to the EPA’s proposal. Robinson’s theory was that the NPL listing would hurt the residents because potential litigations could last for decades, and the residents would be considered living in a dump site that could cost them a lot to move forward. On the witness stand, Robinson admitted that there were residents who needed their soil tested for harmful toxins, but he had used his influence as a public official to convince them not to. Because of Alabama’s opposition, the 35th Avenue Superfund Site has not been placed on the NPL until now.
After the jury verdict, Lance LeFleur, director of the Alabama Department of Environmental Management (“ADEM”) representing Alabama, maintained ADEM’s position to oppose the listing because the site did not pose a health hazard to people living there. LeFleur stated that if the EPA could not reach an agreement with the potentially responsible parties to fund the cleanup, Alabama would be unable to provide the 10% cleanup share because ADEM was in the midst of a series of budget cuts from the Alabama legislature. He expressed that even though ADEM opposed the NPL listing, he was glad the EPA reaffirmed its commitment to cleaning the site.However, it was unclear whether ADEM’s original opposition to the EPA’s proposal was tainted, because its formal letter to the EPA opposing the NPL listing was later revealed to have been written by defendant Gilbert, representing Drummond.
Despite the bribery charges, the crux of the issue lies on the lack of funding: neither Alabama nor Drummond would like to pay for the cleanup costs. ADEM claims that it did not have the financial resources to pay for the cleanup costs due to budget cuts. Drummond, also refuses to pay. This leaves the EPA to bear all of the costs up front. However, President Trump’s proposal slashes the EPA’s budget by more than 23%. Consequently, the EPA might be forced to cut off funding for Superfund site cleanups, or defund Superfund litigations, the last resort to force polluters to cover the cleanup costs.
Lack of funding, on both the federal and state level, thwarts EPA’s effort in combating environmental harms on Superfund sites. It breeds corruption between government officials and private interested parties, and leaves residents living in contaminated sites continuously suffering from toxic substances. Without adequate funding, the reality here is not “polluter pays” but taxpayers pay.
*Updates to the case as of September 27, 2018: Defendants Gilbert and Roberson both moved for acquittal and/or a new trial on August 20, 2018. Robinson was sentenced to thirty-three months on September 27, 2018.
 See Ivana Hrynkiw, Balch & Bingham lawyer, Drummond Executive Convicted in Federal Bribery Case, AL.com (July 21, 2018), https://www.al.com/news/birmingham/index.ssf/2018/07/verdict_reached_in_federal_bri.html.
 See id.
 Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) in 1980. CERCLA is informally called “Superfund,” which allows the EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work. See What is Superfund?, U.S. Envtl. Protection Agency, https://www.epa.gov/superfund/what-superfund (last visited Sept. 27, 2018).
 See Indictment at 5, United States vs. Gilbert, No. 2:17-cr-00419 (N.D. Ala. Sept. 27, 2017).
 See National Priorities List (NPL) Proposed Site 35th Avenue Birmingham, Alabama, U.S. ENVTL. PROTECTION AGENCY (Sept. 2014), https://semspub.epa.gov/work/04/11121096.pdf.
 See Indictment at 5, Gilbert, No. 2:17-cr-00419.
 See id.
 See id. at 6.
 See id. at 4.
 See id. at 8.
 See id. at 4-27.
 See Indictment at 25, Gilbert, No. 2:17-cr-00419.
 See Kyle Whitmire, Dirty Business: How Alabama conspired against its own people, AL.com (July 29, 2018), https://www.al.com/news/index.ssf/2018/07/dirty_business_how_alabama_con.html.
 See 35th Avenue Birmingham, AL Cleanup Progress, U.S. Envtl. Protection Agency, https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.schedule&id=0410750 (last visited Sept. 27, 2018).
 The Governor of Alabama designated ADEM as the State of Alabama’s representative on issues concerning the potential listing of the 35th Avenue Superfund Site on the National Priorities List. See Indictment at 6, Gilbert, No. 2:17-cr-00419.
 See Dennis Pillion, Embattled ADEM director: Handling of north Birmingham Superfund site was ‘by the book’, AL.com (Sept. 5, 2018), https://www.al.com/news/index.ssf/2018/09/alabama_superfund_response.html.
 See id.
 See id.
 See id.
 See Brady Dennis, Trump budget seeks 23 percent cut at EPA, eliminating dozens of programs, Wash. Post (Feb. 12, 2018), https://www.washingtonpost.com/news/energy-environment/wp/2018/02/12/trump-budget-seeks-23-percent-cut-at-epa-would-eliminate-dozens-of-programs/?utm_term=.c120e5253ed6.
 See Id.; Charlie Savage, E.P.A. Threatens to Stop Funding Justice Dept. Environmental Work, N.Y Times (Sept. 27, 2017), https://www.nytimes.com/2017/09/27/us/politics/scott-pruitt-epa-justice-department-funding.html.
 Motion for Judgement of Acquittal and for a New Trial at 1, United States vs. Gilbert, No. 2:17-cr-00419 (N.D. Ala. Aug. 20, 2018); Defendant David Roberson’s Motion for Judgement of Acquittal Under Rule 29(c) or for a New Trial Under Rule 33(A) at 1, United States vs. Gilbert, No. 2:17-cr-00419 (N.D. Ala. Aug. 20, 2018).
 John Archibald, This bribed politician’s sentencing was like no other, AL.com (Sept. 27, 2018), https://www.al.com/news/index.ssf/2018/09/this_bribed_politicians_senten.html.