EPA's Flood of 'Environmental Justice' Dollars May Harm Cleanups in Underserved Communities

You would think that an infusion of tens of billions of tax dollars to the Environmental Protection Agency would be greeted with unqualified jubilation by agency personnel. But not by Sean O’Donnell. He’s EPA’s inspector general, and if the official in charge of oversight has reservations about his office’s ability to oversee the massive windfall, Congress and the public should take note.

At a recent hearing of the House Science, Space, and Technology Committee, O’Donnell fretted about his office’s capacity to oversee the new money for environmental justice and other programs added by recent legislation. For example, “the [Inflation Reduction Act] gave the EPA over $40 billion for entirely new programs that are going to entirely new recipients,” he stated. Yet “Congress didn’t fund oversight of this … That’s faster money to newer recipients and we are very concerned about … the ability to do effective oversight.”

That much additional funding for programs with no additional resources for the IG to monitor how it is spent is bound to create increased potential for waste, fraud, and abuse. Will this influx divert the IG’s attention to the new dollars at the expense of overseeing existing programs? This could be a recipe for disaster for some communities.

For example, the Superfund program, EPA’s ongoing effort to remediate hundreds of the most polluted sites in the U.S., requires stringent oversight. Ironically, many of the sites are in underserved communities that logically would be a focus of environmental justice programs, which are a priority for the Biden Administration. These don’t receive national headlines but are prime targets to suffer from government overreach, possible misconduct, and shifting priorities.

One of the most expensive Superfund cleanups may already have been a victim. The Diamond Alkali site along New Jersey’s Lower Passaic River has an estimated cost approaching $2 billion and has been on the priority list for decades.

On the Diamond Alkali cleanup, EPA implemented a method of allocating costs among “potentially responsible parties” (entities determined to have contributed to the pollution) eerily similar to one the agency had twice proposed to Congress in the 1990s and that Congress had twice rejected. That proposal, which a long-time career EPA official took credit for designing, employed a “third-party neutral” to negotiate with PRPs in assigning financial responsibility.

The U.S. Supreme Court’s recent decision in West Virginia v. EPA sought to limit the agency from asserting power that Congress had considered and decided not to grant it. Yet, on one of the most expensive sites in Superfund history, the EPA appears to have done just that.

To add a wrinkle to this tale, the lead negotiator for the third-party neutral at Diamond Alkali was none other than the same former career EPA official, now in the private sector, who designed the method presented to, and rejected by, Congress. In addition, this former official appears to have participated in matters involving this site both during and after federal service in a way in which my organization believes violates federal ethics rules and that was the subject of a recent complaint filed with the EPA IG.

The Biden Administration may be compounding the oversight issues. More than two years in, despite providing billions more to the Superfund program, the administration has so far failed to install political leadership at the helm of the Office of Land and Emergency Management, which is responsible for overseeing the program. Its original nominee recently left EPA after failing to advance through committee and the President has not nominated anyone else for the role. In a recent interview, a Clinton-era leader at the office declared, “You need that political leadership for that office to implement the priorities of this administration,” adding, “I can imagine it can be frustrating and pretty demoralizing for staff in that office at this point.”

The situation can be frustrating for more than merely the staff in one office. Those who are interested in fighting waste, fraud, and abuse, those who would like to see contaminated areas cleaned up, and those who believe that government and federal officials should play by the rules are getting pretty frustrated, too.

Michael Chamberlain is director of Protect the Public’s Trust.