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home for sale in Pompton Lakes, NJ (7/9/08) -

[Update: EPA reply below]

The Bergen Record reports today that EPA is using twitter and facebook to interact with residents of Pompton Lakes on the Dupont site. (and see this).

I don’t want EPA tweets. I want EPA enforcement actions, financial resources, and strict oversight of NJ DEP.

So, I thought I’d test that EPA commitment to social networking and go directly to EPA with this baker’s dozen of easy questions. We will keep you posted on EPA’s reply:

Dave – a few questions:

1. have PL residents filed NJ Spill Fund claims to receive compensation for property value reductions associated with DuPont contamination?

2. Are residents aware that they are eligible to do so? DEP not likely to provide that advice, because they are seeking to minimize claims against that fund. Outrageously, DEP complained in December 14, 2009 legislative testimony about how new notification requirements to residents near toxic sites were increasing Spill Fund claims. Spill Fund revenues come from a very small surcharge on major corporate polluters, primarily the oil and chemical industry. If DEP cared about protecting people, they would publicize this information and inform residents. But instead, DEP protects polluters by keeping the Spill Fund a secret to avoid public pressure on raising the surcharge when it becomes obvious that claims greatly exceed funds. DEP Guidance to the public on how to file a Spill Fund claim is limited. (See the above link to Spill Fund regulations and below end note for Spill Fund eligible reimbursements for “damages“.)

3. Is EPA willing to help residents with real estate appraisals to document these reductions? (see Bergen Record’s “Pompton Lakes Plume Hurts Property Values”

4. At the Jan. 25 public hearing, there were many questions about why it took so long (until May of 2008) for DEP to “discover” the vapor intrusion problem and notify residents. Do residents understand that the “phased approach” under the NJDEP Vapor Intrusion Guidance (and RCRA guidance) is what caused the delays?

5. Are residents aware that DEP knew of the vapor problem and that then existing groundwater standards and remedial approaches (i.e. passive remedy) were not protective of public health risks – on a statewide basis and at the Commissioner’s level – way back in February 2002 (I worked for the Commissioner at the time on this and still have the warning memo to Commissioner Campbell. Glad to share it if you are interested – or view the 2002 DEP Vulnerability Assessment – see page 5, final paragraph “Indoor air from contaminated groundwater“).

6. Are residents and EPA aware that NJ DEP adopted changes to the VI Guidance to accelerate indoor air sampling at “sensitive receptor” sites (i.e homes, schools, daycare center) in August 2009, but reversed those changes in November 2009?

7. So, is EPA willing to modify the RCRA VI Guidance’s “phased approach” (also known as “outside/in”) and accelerate indoor air sampling in Pompton and elsewhere in NJ for sites that may impact “sensitive receptors”, at least to the degree that DEP did in August 2009 Guidance revisions? Or pressure DEP to revise NJ VI Guidance and restore the August improvements?

8. Has EPA examined potential vapor migration along subsurface infrastructure? Why would vapor only follow plume and not infrastructure? If vapors are close to surface, don’t they seek path of least resistance, like all fluids? If so, vapor is omni-directional.

9. Do you have the side by side comparison of RCRA Corrective Action program versus Superfund cleanup I requested at the public hearing? BTW, has NJ received full EPA delegation for the RCRA Corrective Action program?

10. Do you have information on the details of any EPA and DEP enforcement act against Dupont that I requested at the hearing? (e.g. fines, penalties collected) Have any RCRA or Clean Water Act enforcement actions been taken by EPA? Has DEP issued ANY NJ Spill Act or Water Pollution Control Act violations against RP Dupont?

11. Has NJ DHSS agreed to do a comprehensive epidemiological study, as I requested at the hearing?

12. Has NJ DHSS agreed to provide health screening medical physicals and sampling of blood, urine, hair, fingernails, and tissue to assess historic exposures?

13. Has EPA made a final decision on RCRA versus Superfund? If not, When will that decision be made?

Appreciate your favorable consideration and timely written replies.

Here is what damages are eligible for compensation under Spill Fund:

“Damages” means all cleanup and removal costs and all direct and indirect damages actually incurred, no matter by whom sustained, arising in connection with a discharge of a hazardous substance, or in connection with a threatened discharge, which costs and damages include, but are not limited to, the following:

1. The cost of restoring, repairing or replacing any real or personal property damaged or destroyed by a discharge, any income lost from the time such property is damaged to the time such property is restored, repaired or replaced, and any reduction in value of such property caused by such discharge in comparison with its value absent the discharge;

2. The cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge;

3. Loss of income or impairment of earning capacity due to damage to real or personal property, including natural resources destroyed or damaged by a discharge, provided that such loss or impairment exceeds 10 percent of the amount which the claimant derives, based upon income or business records, exclusive of other sources of income, from activities related to the particular real or personal property or natural resources damaged or destroyed by such discharge during the week, month or year for which the claim is filed;

4. Loss of tax revenue by a state or local government for a period not to exceed one year, due to damage to real or personal property proximately resulting from a discharge (which one-year period, in the case of lost real property tax revenue, commences on the effective date of the first reduction in the assessed value of real property for damage proximately resulting from the discharge);

5. Interest on loans obtained or other obligations incurred by a claimant for the purpose of ameliorating the adverse effects of a discharge pending the payment or settlement of a claim;

6. Such sums as may be necessary to reimburse a local unit for costs incurred in an emergency response action taken to prevent, contain, mitigate, cleanup or remove a discharge or threatened discharge of a hazardous substance; and

7. Costs for legal services necessary for remediating contamination, including attorney’s fees for contracting or obtaining permits, drawing of ordinances, acquisition of land and rights of way, drawing and administering construction contracts, and for legal work connected with necessary financing for the construction by a municipal utility authority of a new water system. Damages do not include costs normally associated with the listing, sale and transfer of property which is the subject of a claim.

[Update: to his credit, Dave Kluesner from EPA replied immediately, although he dodged all the substance and by failing to commit to a timetable to provide responses, he attempted to shift the onus on me to monitor EPA’s followup. I asked several of these questions at the public hearing weeks ago. Yes they are relatively technical questions, but Dave works for EPA, a technical regulatory agency. These are not good signs:

Bill – Hi.  All very technical questions that I will send to EPA and NJ DEP technical team working on Pompton/Dupont.  It may take a bit of time to respond due to the nature of the questions and the current work load that the project team is managing.  Please nudge me if you don’t hear back in your desired timeframe.
_______________________________________________________
David Kluesner  –  Public Affairs
U.S. EPA  –  Manhattan Office
290 Broadway, 26th Floor  /  NY, NY 10007
212.637.3653  /  http://www.epa.gov/region2