Washington, DC —A controversial decision by Biden’s Environmental Protection Agency may compromise the protectiveness of radiation cleanups across the country, yet the agency will not release the material explaining the basis for this decision, according to a federal lawsuit filed today by Public Employees for Environmental Responsibility (PEER). The suit seeks to find out why EPA allowed a landfill at Oak Ridge, Tennessee, one of the nation’s largest nuclear waste sites, to pollute local waters over the objections of its top legal experts.

The Tennessee Department of Environmental Conservation (TDEC) had objected to plans by the U.S. Department of Energy (DOE) to build a landfill for radiological wastes and debris from demolished structures from the Y-12 National Security Complex and Oak Ridge National Laboratory. TDEC protested that wastewater from the landfill would contaminate Bear Creek, a tributary of the Clinch River. EPA’s acting Regional Administrator agreed with the state.

DOE then elevated the dispute to Trump’s EPA Administrator, Andrew Wheeler, who, on December 31, 2020, in his last month in office, sided with DOE and reversed EPA’s position. The final decision, however, would rest with Biden’s EPA Administrator, Michael Regan, who, to the surprise of many of his staff, upheld the Wheeler decision on September 30, 2022.

EPA staff who had prepared briefing material for Regan suspected that the many concerns they had raised did not make it through a cordon of holdover senior staff who remain in place today. On December 12, 2022, PEER submitted a Freedom of Information Act (FOIA) request for the materials Regan viewed before upholding the Wheeler decision. To date, that material has not been produced, and the same senior EPA officials handling the request have refused to provide a timeline for their release. Today, more than 10 months after its request, PEER sued in the U.S. District Court for the District of Columbia to compel production of the responsive documents.

“Superfund aims to clean up toxic hot spots, not create more of them,” said PEER Executive Director Tim Whitehouse, a former senior EPA enforcement attorney, noting the array of clean water protections, such as antidegradation. “The core issue is that Superfund cleanups must be done in accordance with, not in violation of, the Clean Water Act.”

While the terms of the Wheeler decision are limited to the 34,000-acre Oak Ridge Superfund site, the DOE is now lobbying to extend this waiver to its Superfund site in Paducah, Kentucky.

PEER is campaigning to strengthen the rigor of EPA Superfund oversight, especially over government nuclear waste sites, such as Hunters Point Naval Shipyard in San Francisco. The EPA division housing Superfund has not had a Senate-confirmed leader under Biden, leaving the program in the hands of holdover staff. Since noted environmental justice advocate Carlton Waterhouse was denied confirmation, there has not been a new nominee for the job.

“We believe that this lawsuit will unearth a prime example of how EPA’s Superfund has become a victim of regulatory capture, especially by defense agencies,” added PEER Pacific Director Jeff Ruch, who has been pursuing the Oak Ridge FOIA. “In order to achieve President Biden’s environmental justice goals, the Superfund program needs to start exhibiting a backbone.”

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Read the PEER suit

View Superfund sites that could be affected by Wheeler decision

Examine law review article by former EPA counsel outlining concerns

Explore background of the Wheeler decision

Look at Hunters Point cleanup malaise