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Dupont Caught Exploiting DEP Loophole on Toxic Cleanup Oversight

NJ DEP still does not have delegation from EPA to implement the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?

[Update: 11/16/10 – I’ll write something and post photos later today, but this is good story on last night’s hearing by Jim O’neill of the Bergen Record: DuPont’s permit-change request irks Pompton Lakes residents – literally  a killer quote:

“Vojo Congura, who lives directly across the street from the DuPont property on Barbara Drive, grew emotional as he described his efforts to test the groundwater under his own house as he cared for his wife, who he said died of cancer at 46. Referring to DuPont, he asked the DEP to “step on their throats like they stepped on ours.”]

This story is complicated and needs a little background and context. But I don’t want to get into the weeds and rehash the whole story – those interested can read prior posts (see this and this and this).

DEP will hold a public hearing Monday night (11/15) in Pompton Lakes on a Dupont “permit by rule” (PBR) for the groundwater remediation pump and treat system’s discharge to groundwater.

The hearing is only being held because alert residents read the fine print in the legal notices section of the local newspaper and protested.

Initially, DEP ignored residents’ concerns and downplayed the issue as a purely minor administrative permit matter.

Then, after more informed local protests, DEP rejected requests for a public hearing but agreed to extend the written public comment period for 60 days. 

But then PEER intervened with a letter to US EPA, which prompted EPA oversight and basically forced DEP to agree to hold a public hearing on the PBR proposal.

The Dupont toxic site has massive groundwater contamination and a plume has travelled off site and is now under 450 homes in Pompton Lakes. Chemical pollutants in groundwater are migrating into homes – a process know as “vapor intrusion”.

The long known and ignored vapor intrusion problem was disclosed to residents only recently, which sparked outrage and renewed demands that the site be cleaned up.

Residents were especially frustrated by a cozy relationship between Dupont and DEP, lax DEP oversight, and a pattern on secret dealings between DEP and Dupont. That process under NJ’s “streamlined” cleanup laws led to residents having been virtually shut out of cleanup decisions at the site for over 20 years.

In response, NJ DEP pledged to do more, while NJ Department of Health officials conducted a study that found elevated cancer rates in Pompton Lakes that were associated with the toxic chemicals in groundwater.

Elevated cancer risks only added to the outrage and prompted residents to demand that the site be listed on the federal Superfund National Priorities List (NPL) so that oversight of the cleanup could be taken away from NJ DEP and shifted to US EPA.  

In response, US EPA and NJ DEP officials pledged to work with the community. Both EPA and DEP pledged to work openly with residents and imporve transparency and Dupont accountability.

But EPA recommended against Superfund listing, purportedly on the basis that Dupont was a financially solvent responsible party and federal EPA supervised RCRA cleanup oversight would be the better option. Despite our requests -  voiced at public hearings and in writing -  no written rationale was ever provided by EPA to support this EPA policy decision to rely on RCRA, not Superfund.

But now we learn that this may have not been the real reason for not pursuing the Superfund option. The real reason may be due to the fact that EPA’s Superfund risk ranking method, known as the HRS for “Hazard Ranking Score”, does not consider risks from the vapor intrusion exposure pathway. This issue also recently came to light in chromium exposure in basements in Garfield NJ.

But back to the Dupont cleanup – Given the EPA and NJ DEP pledges, of course residents’ expectations were raised.

So that’s the background and context for the Dupont PBR hearing.

In terms of the PBR, DEP created a statewide PBR option for certain NJPDES permits back in 2005 as a means of streamlining oversight of cleanups, given scarce resources. Polluters were given the option to ask DEP to grant approval so that an individual NJPDES permit could be replaced by a “permit by rule”, which entails less DEP oversight. 

The proposed Dupont PBR would rescind the current individual NJPDES discharge to groundwater permit, renewed on a 5 year cycle, and replace it with a permanent approval.

The PBR option was designed for minor, low risk, mainly administrative purposes. Certain facilities were NOT eligible for the PBR alternative under DEP’s own rules. For example, RCRA hazardous waste facilities and “corrective action” cleanups are NOT eligible for a PBR under DEP’s own rules.  The RCRA facilities also are  not eligible due to federal RCRA requirements.

Dupont is an EPA regulated  RCRA facility undergoing corrective action, and therefore is not eligible and should never even have requested as PBR. Given that Dupont is NOT eligible for a PBR, DEP should never have issued the draft PBR for Dupont.

The Dupont draft PBR – especially after it was discovered by residents in the fine print of the legal public notices buried in the back of the newspaper – totally undermined prior EPA and DEP openess commitments.

Procedurally, the current NJPDES individual permit is renewed on a 5 year basis. This allows residents an opportunity to comment on the permit in light of new information.

For example, some Pompton Lakes residents claim that the DEP approved pump and treat discharge to groundwater is not the best cleanup technology and is exacerbating the vapor intrusion problem by increasing local groundwater elevations and pressures, by forcing groundwater and vapors to migrate more quickly into residents basements. It is not clear whether cleanup alternatives and that potential problem have been technically evaluated. Therefore, the individual NJPDES permit renewal process and public hearing becomes an opportunity to raise these kinds of issues.

The DEP NJPDES permit regulations also require that DEP respond in writing to all concerns raised by the public. This is an important accountability measure.

Additionally, DEP regulations allow residents – at any time - to petition DEP to modify or even to revoke the NJPDES permit, in light of new information, or omissions or errors in the original permit.

All these opportunities to hold Dupont and DEP accountable would be lost under the PBR approach.

One more point before the press release and the various documents in the belwo PEER press release.

I was suprised by the EPA reply letter. EPA basically said that – after more than 20years - EPA has not issued a final RCRA cleanup permit, not taken enfrocement actuion, and does not know the source of the contamination at the Dupont site. EPA claimed: 

However, it is currently unclear whether the groundwater contamination is coming from RCRA-regulated units or other of the more than 200 solid waste management units (SWMUs), also referred to as Areas of Concern (AGCs) in documents submitted by DuPont. …

 Final cleanup requirements will be incorporated into the EPA corrective action permit, subject to public review and comment. If necessary, post-closure conditions applicable to the RCRA-regulated units could be imposed via a separate enforceable instrument (e.g., a postclosure permit or an order).

 

I found those admissions by EPA quite troubling.

Congress directed EPA to implement RCRA corrective action requirements at RCRA facilities way back in in 1984 (26 years ago), in the “Hazardous and Solid Waste Amendments” (HSWA).

I supervised the development of NJ DEP’s RCRA HSWA corrective action program as my first assignment at DEP back in 1985.

Dupont Pompton Lakes was a high priority RCRA/HSWA corrective action land disposal facility back in 1985.

NJ DEP still does not have full delegation from EPA to implememt the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?    

For Immediate Release: November 12, 2010
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

AFTER 20 YEARS NEW JERSEY TOXIC SITE REMAINS REGULATORY SWAMP — EPA Assurance Adds to Confusion about Fate of DuPont Pompton Lakes Clean-Up

Trenton — The U.S. Environmental Protection Agency has issued a new promise that it will require complete and proper “closure and post-closure care” for one of New Jersey’s most notorious toxic sites, according to a letter posted today by Public Employees for Environmental Responsibility (PEER), but EPA’s assurance raises more questions than it answers. At the same time, the New Jersey Department of Environmental Protection (DEP) will hold a public hearing in Pompton Lakes on Monday evening, November 15th, on its proposed “oversight streamlining” that has residents up in arms for fear that contaminated groundwater and vapor intrusion from the DuPont plant will not be effectively addressed.

For more than 90 years, the E.I. DuPont De Nemours & Company manufactured blasting caps, copper and aluminum shells and other metal products on the 600-acre site which straddles two parallel valleys of the Wanaque River and Acid Brook which run through the site. Back in 1992, EPA first issued a “corrective action permit” to clean up the DuPont plant which ceased operation in 1994. The subsequent nearly two decades of federal and state remedial involvement, however, have yet to produce a definitive remedy.

Residents and environmental groups have objected to a DEP proposed “permit by rule” that would give permanent approval for the current pollution discharge to groundwater permit associated with the groundwater cleanup. The DEP “permit by rule” would eliminate the ability of the public to seek revisions or revocations in light of new information, or even to comment on the renewal of the current permit. In a September 3, 2010 e-mail to EPA Regional Administrator Judith Enck, New Jersey PEER Director Bill Wolfe laid out concerns that DEP handling of the site violated federal law, including requirements that public hearings for residents be held.

In an October 14th reply to PEER, Regional Administrator Enck wrote “you have my commitment that DuPont will fulfill its [legal] obligations for this facility [including] a comprehensive compliance schedule for all of the on and off-site areas requiring remediation.” Ms. Enck also indicated that based upon consultation with DEP, the residents “will be afforded opportunity for comment.” Shortly thereafter, DEP noticed a public hearing for this Monday.

“We appreciate EPA’s assurances but after all these years EPA has yet to issue a final corrective action permit or take enforcement action at DuPont,” stated Wolfe, a former DEP analyst. “We believe that the DEP is clearly violating federal law at Pompton Lakes but EPA is sidestepping that question.”

Most curiously, Ms. Enck’s letter concedes that after all these years the source of the contamination has not been isolated. In addition, EPA did not disclose that its current Superfund risk scoring methodology does not consider vapor intrusion exposure, an issue central to the community’s demand to list the site under Superfund. Approximately 450 Pompton Lakes homes suffer harmful vapor intrusion.

“At Pompton Lakes, state and federal agencies are engaged in a marathon arm wrestling contest, allowing the polluter to exploit the conflict and leaving the residents on the sidelines without a program,” Wolfe added. “At this rate, the Pompton Lakes clean-up will drag on for another 20 years.”

###

Read the EPA letter 

See the PEER e-mail which prompted it 

View the 11/15 Pompton Lakes public hearing notice 

Look at the vapor intrusion regulatory vacuum 

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

 

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  1. Gene Walsh
    November 14th, 2010 at 20:51 | #1

    There seems to be an emerging pattern of high tolerance for the abuse of the common man in favor of rich polluters both in Pa and in NJ. It seems that as we have become more ‘conservative’, our country seems to no longer care either about our environment or the health, welfare and safety of middle class families that suffer from corporate abuses.

  2. November 16th, 2010 at 17:10 | #2

    PLEASE CALL TODAY!

    Please just make one important phone call today! Call NJDEP Commissioner Bob Martin at 609-292-2885. Please let Commissioner Martin know that it is not in the best interest of the residents of Pompton Lakes to approve DuPont’s Permit-By-Rule Application and asked that he deny this application!

    True hands-on oversight is needed and has been non-existent for over two decades. Instead of weakening (a five-year renewal will no longer be required and less testing, monitoring and reporting will occur) what already exists to regulate environmental clean-up remediation, the citizens deserve and are in dire need of serious action to strengthen monitoring of work being performed by DuPont. Therefore it is unacceptable to the residents of Pompton Lakes for the permit changes to even be a consideration. Thank you. Lisa Riggiola, Executive Director, Citizens For A Clean Pompton Lakes

  1. November 17th, 2010 at 16:50 | #1
  2. March 1st, 2011 at 13:14 | #2
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