Dupont & DEP Hammered Again in Pompton Lakes – EPA Takes Charge
[Update 1/28/10]: minor victory for CCPL – see point #1 below. Bergen Record: Officials say Pompton Lakes residents can use own contractors
Another packed hearing of hundreds of residents was held last night in Pompton Lakes NJ (see this for December hearing coverage on cancer cluster findings).Â For today’s Bergen Record coverage: Pompton Lakes cancer study widens
In remarkable “60 Minutes” level testimony, the former Mayor spoke about the history of how he disclosed the Dupont contamination in the late 1980′s. He challenged State DEP officials who said they were legally powerless to require that Dupont sample homes. He noted that he was able to set up local programs that required Dupont to compensate homeowners for lost property values, subsidize their mortgages, and take other steps to protect residents. But, as he demanded more from Dupont, he said he came under intense pressure and intimidation. He received death threats and devices were exploded on his front lawn [1/29 deleted. See comments]. Since then, for almost 20 years local officials have looked the other way as the cleanup stalled. Some even helped Dupont keep the contamination quiet, in naive hopes or possibly corrupt plans that a promised Dupont major development and resort golf course will lower their property taxes.
But now residents themselves are fighting back. They are demanding that US EPA take over the cleanup, due to imminent and substantial health risks and over 20 years of delay in cleanup, which has led to a deep lack of trust in both NJ DEP and Dupont.
A federal court found that similar risks and delays at a Honeywell chromium site in Jersey City violated federal law. The Honeywell Jersey City chromium case set national precedent on RCRA citizen lawsuits on “imminent risk to human health and environment” – see an excerpt of that case below from my June 1, 2006 testimony to NJ legislature: (view full testimony here):Â Â
“Echoing these conclusions, in a case involving an â€œimminent risk to human health and environmentâ€, a federal Circuit Court judge expressed no confidence in the DEPâ€™s oversight of a highly contaminated chromium site in Jersey City, concluding
…[T]he court finds that the evidence demonstrates a substantial breakdown in the agency process that has resulted in twenty years of permanent clean-up inaction. [ICO v. Honeywell. US Third Circuit Court. 2004]
In August 2009, an EPA audit found major problems in NJ DEP oversight and lack of enforcement of toxic site cleanups (see: EPA AUDIT RIPS NEW JERSEY DEP PERFORMANCE â€” Corrective Actions Never Implemented for Toxic, Wetlands and Other Programs .
Before that, a June 2008 EPA Inspector General’s Audit of NJ DEP cleanup program found complete breakdown. Amazingly, EPA was told that NJ DEP takes Dupont consultants “at their word” without independent field verification of facts (see: EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS â€” State Failures to Enforce Law Lead to Worst Delays in the Country
As a result, EPA has taken over control of cleanups at several NJ sites due to multiple massive failures by NJ DEP. Residents are demanding that EPA take similar control over the Dupont site (see: New Obama EPA Regional Administrator Plants a Flag in NJ).
Last yearâ€™s disclosure that chemical vapors from contaminated groundwater were seeping into hundreds of homes triggered outrage – the proverbial straw that broke the camels back.
Residents, led by then Council members Ed Meakem and Lisa Riggolio started asking questions about Dupont’s control, lax DEP oversight, and cleanup delays, which then led to the formation of a watchdog group called Citizens for a Clean Pompton Lakes,Â CCPL. This group forced the state to conduct a health study. That study found elevated levels of cancer associated with chemicals from Dupontâ€™s site. (see this story for how CCPL started)
Last nightâ€™s meeting was EPAâ€™s first step towards their promise to do more at the site in response to citizenâ€™s demands. EPA has agreed to assume “co-lead” status for certain limited aspects of the cleanup, but not to list the site under the federal Superfund program. EPA prefers the RCRA “Corrective Action” program as the mechanism for federal oversight. EPA also pledged to begin a formal community involvement initiative.
But EPA assured residents that final decisions on EPA’s role have not been made.
EPA’s current limited commitment needs to be expanded significantly.
Residents must keep the pressure on EPA. In addition to establishing a 24/7 presence in the community and deploying mobile sampling equipment, the key indicators of whether EPA is serious in fulfilling their promise to the people of Pompton Lakes are:
1) EPA must legally take complete control over the technical aspects of the site, including direct hiring of contractors and consultants to collect data, finish the remedial investigation, conduct the cleanup, and install vapor mitigation systems that homeowners agree to (with no liability waiver). EPA scientific and technical control must be the same as that at so called EPA lead Superfund “orphan sites” – Dupont and DEP have grossly abused their power and have absolutely no trust in the community. Dupont can have no role in future cleanup activities, other than to write checks;
2) EPA must send a bill Dupont for all the work and credibly threaten (in an enforceable order) to file a lawsuit to recover triple damages if they refuse; and
3) EPA must issue a formal enforcement documentÂ (under RCRA or Superfund) that:
a) sets a mandatory and enforceable schedule for project activities,
b) forces Dupont to pay for them,
c) imposes large enforcement fines; and
d) seeks huge natural resource damages and property and health damages that reimburse the people of PL who suffered injuries to health and property values.
4) commit to work with ATSDR to assure that a scientifically valid epidemiological study is conducted in the entire town, and to secure funding for residents’ health monitoring and appropriate medical testing.
Here are some resources to help assure that EPA does that:
The types of administrative orders that can be issued under authorities provided by RCRA are as follows:
- RCRA Section 3008(a) Orders (“Compliance Orders”) — Used to require any person that is not in compliance with the requirements of RCRA to take steps immediately or within a stated time period to return to compliance. The order can contain penalty provisions up to $32,500 per day per violation and can suspend or revoke a facility’s permit or interim status. When EPA issues a compliance order, the person issued the order can request an administrative hearing on the factual provisions of the order.
- RCRA Section 7003 Orders – Used when there is evidence that the past or present handling, storage, treatment, transportation or disposal of hazardous or nonhazardous waste may present an “imminent and substantial endangerment to health or the environment”. Section 7003 Orders, issued to any past or present entity (i.e., generators, transporters, or owners or operators) who is contributing (or has contributed) to the problem can order that steps be taken to clean up the facility or location or to change or stop the operating procedure causing endangerment.
- RCRA Section 3013 Orders — Used to evaluate the nature and extent of a problem or potential problem through monitoring, testing, and analysis when it is found that the presence of any hazardous waste at a facility or site where hazardous waste is or has been treated, stored, or disposed or where such waste from any facility or site may present a substantial hazard to human health or the environment.
Under RCRA Section 7002, citizens are authorized to bring enforcement actions against potential or actual RCRA violators and against EPA in the federal District Court system. Citizens are generally required to provide notice to EPA, to the state in which the violation occurred, and to the alleged violator. (See Regulations at 40 C.F.R. 254 )
Â§ 264.4Â Â Â Imminent hazard action.Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to section 7003 of RCRA.
[45 FR 33221, May 19, 1980, as amended at 71 FR 40272, July 14, 2006]
We note the continuing support of Senators Frank Lautenberg and Bob Menendez, who again sent representatives last night.
In closing, we note that several residents spoke that they were appalled by the behavior of the mayor and DEP Assistant Commissioner Kropp.
Residents accused Kropp of being disrespectful, arrogant, and condescending. Maybe the meds weren’t working, but I agree that Kropp’s continuous smug grin and haughty tone of voice were completely unprofessional and inappropriate. Several times, she flat out blamed residents for delays in installation of vapor intrusion systems in homes. She also refused to meet with certain groups or individuals, implying that they were effectively outside agitators and did not represent “the community”. I found these remarks divisive and outrageous.
I also must note that both Kropp and the Mayor confirmed that they had met privately prior to the meeting. I assume this was an attempt to get their stories straight. Again, this covert type of one sided communication destroys all trust. This is just another reason that DEP must cease to be involved in the cleanup.