The U.S. Environmental Protection Agency has a history of pledging to be transparent. As EPA Administrator Michael Regan said, “Robust dialogue with the public enhances the quality of our decisions.” 

Unfortunately, the EPA has engaged in no dialogue with the public regarding its proposed settlement with companies that polluted the Passaic River. That needs to change. 

After receiving dozens of public-comment letters objecting to the settlement, the EPA, through its Justice Department attorneys, told the federal court overseeing the case that it is considering whether to modify, withdraw or seek court approval of the proposed settlement, which would let 85 polluters walk away from their responsibility for the cleanup in exchange for a collective $150 million.  

As the only company that has stepped forward to perform cleanup work in the Passaic, OxyChem believes the EPA needs to answer some fundamental questions about this settlement, starting with, what will each of the settling companies actually pay? 

This is important. Federal Superfund law requires the EPA and, eventually, a judge to assess whether a settling company’s payment bears a reasonable relationship to its responsibility and is adequate given the cleanup’s total costs. 

What EPA is not saying 

To date, the EPA has not disclosed how much each of the settling companies will pay. All the agency has said is that the settlement is $150 million in total, a sum the EPA admits is a “minor share” of the $1.82 billion the EPA estimates the cleanup will cost. 

Another unanswered question: How will the settlement benefit New Jersey residents and the Passaic River? 

In announcing the settlement last December, EPA Region 2 Administrator Lisa Garcia promised this deal “brings us closer to a cleaner healthier river that can be enjoyed by those who live near its banks.” How? The settlement doesn’t commit any of the funds received by the EPA to actual river cleanup work or the 85 companies to do any of the work. The EPA has only stated it would use at least $70 million to pay its own costs. This is a staggering departure from the EPA’s long-standing — and statutorily mandated — approach to Superfund settlements, which prioritizes doing or paying for actual cleanup work. 

How, then, did the EPA determine the settlement’s dollar value? 

The short answer is that each company handed in its own estimates and documentation. The companies were then allowed to edit the report used by the EPA to decide whether to accept the bulk settlement. Not surprisingly, the EPA’s reliance on settling companies to self-report how much pollution they dumped in the river resulted in a settlement that represents a fraction of the estimated $1.82 billion cleanup cost for the 17-mile section of the river. 

In taking this course, the EPA ignored multiple offers by OxyChem to fully fund the river’s cleanup. 

Implications for taxpayers 

For seven years, OxyChem has been working collaboratively with the EPA to design the cleanup of the Passaic’s lower portion. Nearly two years ago, OxyChem offered to design and implement the EPA’s selected remedy for the river’s upper nine miles. OxyChem also offered to enter into a series of agreements to implement cleanup of the Passaic’s lower portion. This amounted to one of the most comprehensive cleanup proposals ever made by one company in the Superfund program’s 42-year history. 

Our offers were contingent on a simple request — that the EPA not block us from exercising our legal right to seek contributions to the cleanup from companies that polluted the river. This approach would have cost taxpayers nothing. Equally important, it would have allowed the cleanup of the upper nine miles to begin in early 2022. 

The EPA never responded to OxyChem’s offer. 

Instead, it has needlessly put New Jersey taxpayers at risk of having to pay substantial amounts for the cleanup themselves. 

That’s because, if approved, the settlement would shift the cleanup cost to parties not included in the settlement, including companies like OxyChem, taxpayer-funded entities like the Passaic Valley Sewerage Commission and four dozen New Jersey municipalities. 

Those municipalities face large legal exposure because they own the sewer systems the private, settling companies used to transport polluted waste into the Passaic. 

OxyChem is not alone in opposing this attempt to shift liability from private parties to the public. The PVSC told the Department of Justice in a letter last March that its “principal concern with the [settlement] is that it exposes the public, vis-à-vis PVSC and its 48 municipal constituent members” to “catastrophic monetary risk which they cannot satisfy because of their lack of resources.” 

Exposing New Jersey taxpayers to “catastrophic monetary risk” and turning away voluntary offers of help isn’t good for the Passaic or the people of New Jersey. 

If the EPA disagrees, it should explain why. The time for a “robust dialogue with the public” on this settlement is long overdue.