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Crown Vantage landfill – scar on Delaware River

[Update below]

I attended and spoke at the EPA public hearing last night in Milford, on the proposed cleanup plan for the Crown Vantage Landfill Superfund site.

The Crown Vantage site is on the banks of the Delaware River, just south of another industrial Superfund site  known as Curtis Specialty Papers, and less than a half mile north of the old Riegel Paper Company landfill. (Google maps).

Crown Vantage, Curtis Specialty Paper, and the Riegel Landfill are all geographically close, as well as historically operationally inter-related with each other.

According to the EPA site history, from the 1930’s to the 1970’s, the Crown Vantage Landfill received industrial waste from the nearby Curtis Specialty Paper Company and 4 other nearby Riegel Paper Company Mills.

The Riegel Paper Co. Landfill is known to have received the same industrial wastes as the Crown Vantage Landfill, yet there is virtually no attention paid to the proper closure and cleanup of the Riegel paper Co. site by the NJ DEP.

The Riegel Paper Co. Landfill is the site where NJ DEP notoriously claimed that leachate discharging into the River was “natural“. DEP subsequently corrected that error and conducted sampling (I have not reviewed the data and don’t recall media reports on the results of that effort).

One [Crown Vantage] site is a federal Superfund, the other site – same wastes disposed, same sensitive riverbank and adjacent D&R Canal Park location, and actively discharging leachate to the Delaware River – essentially nothing, not even State NJ DEP landfill closure enforcement.

I asked EPA people about this and they passed the buck to the NJ DEP.

Anyway, lets get back to Crown Vantage.

As a result of flooding and erosion, contaminants from chemicals disposed and drums buried on site have migrated off site and polluted the Delaware River, river sediments, and terrestrial and aquatic ecosystems.

Crown Vantage Superfund site, just feet off the D&R Canal path (view from standing on the path)

The site is located between the Delaware River and the extremely popular D&R Canal State Park, and thus poses additional risks to recreational hikers, bikers, birders, hunters, and fishermen. Of course, given its proximity to the Park and secluded riverfront, the site is a magnet for trespassers (ATV’s, kids, stealth campers, ramblers, beer parties, etc).

This sensitive situation prompted EPA to force the Responsible Parties (Georgia-Pacific and International Paper Company) to excavate and remove over 2,000 drums, fence and post warning signs at the site, and install a wall to prevent further flooding erosion. Those measures removed the immediate threats and stabilized the site, during which time, EPA required that the RP conduct a full remedial investigation and a feasibility study, outlining alternative final cleanup plans for public review.

The Superfund law establishes what is know as a “preference for permanent remedies”. The law mandates that cleanups must use permanent solutions to the maximum extent practicable (see discussion at page 7).

Yet, despite the statutory preference and mandate for a permanent cleanup (e.g. removal of all buried drums, contaminated soil, et al), a permanent remedy  was not even an alternative that EPA proposed for public comment.

EPA proposed 2 alternatives: no action and their preferred alternative, which is stabilization of the site by existing forested cover, a previously constructed flood wall, and deed restrictions to prohibit future development.

Some choice! Do nothing or do it our way.

In this case, EPA says the trees on the site basically comprise a cap and containment system. EPA usually requires an engineered cap, so I never heard of that before and asked EPA to justify that approach.

I was pleased that the Express-Times reporter picked up on that important point (see: EPA unveils plans for Crown Vantage Landfill Superfund site in Milford)

EPA Remedial Project Manager Alison Hess said the site presents no imminent risk to public health, and the proposed plan will ensure it stays that way.

“The remaining wastes are considered low-level threat wastes,” she said. “Containment is appropriate for those wastes.  …

Bill Wolfe, of West Amwell Township, said he feels capping the site is more appropriate for larger landfills and that the EPA should have considered further removing the remaining pollutants.

“Your first alternative should be to dig it up and take it away, and if it’s found not be feasible, then you consider capping and containing,” he said.

In addition to concerns about failure to propose a permanent remedy for public comment, I noted the following concerns:

1) Like most old landfills, there is little or no reliable data on historical waste disposal. So, EPA really doesn’t know exactly what, where, how much, when, and what kinds of chemical wastes were disposed there. Additionally, methods of investigation (review of historical aerial photos, geophysical technique to probe subsurface looking for buried drums, dug test pits, borings, etc) are inherently uncertain.

These uncertainties argue in favor of complete removal, yet EPA seems confident that they have removed the “principal threat” and are leaving only small volumes of low risk materials on site. I asked EPA to reconsider, and at a minimum better document and justify these conclusions.

2) despite off site sediment samples that exceeded the NJ DEP ecological risk screening criteria, EPA did not fully investigate potential  impacts to fish and aquatic ecosystems. EPA did look at birds and mammals and found no significant risks.

Given documented off site release and sediment data, I asked EPA to conduct an evaluation of fish and aquatic life impacts and work with federal partners to look into seeking compensation and/or restoration for natural resource damage injuries, including loss or impairment of recreational uses of the River and D&R Canal Park.

3) The site was abandoned in Bankruptcy proceedings, so there is no legal owner at this time.

I therefore questioned EPA’s proposed plan to allow the Responsible Parties to voluntarily negotiate a deed restriction to prohibit future use of the site. Instead of reliance on voluntary measures, I strongly urged EPA to issue a unilateral Order to the Responsible parties to set specific deed conditions and a deadline for this deed to be finalized.

4) I questioned the wisdom of the remedial objective, which is limited to exposure control (not permanent cleanup and elimination of the risk).

A deed restriction can only prevent some (but not all) future uses of the site itself, and EPA is unable to control future land use adjacent to the site.

NJ has brownfield redevelopment policies that actively provide incentives to redevelop contaminated sites. So no risk from future development can not be assumed. These future land use changes could change the exposure and risk assumptions and conditions upon which the EPA cleanup decisions are based. These uncontrollable future conditions argue in favor of a permanent remedy as the best and only approach to assure long term protectiveness of the cleanup.

5) There is a small area of the site (0.25 acre) where lead levels exceed NJ soil screening levels. I urged that these soils be excavated and removed, instead of being allowed to be left in place on site, as proposed by EPA. Long run, they will migrate off site and further harm the sensitive local envrionment.

6) I agreed with other residents who asked why insurance companies have not be involved in funding and questioned how EPA would finance and guarantee the long term monitoring and maintenance of the site.  There is currently no enforceable agreement on these issues.

EPA responded to these questions by saying that those key issues would be the subject of a future EPA negotiations with RP’s on implementing the selected cleanup option.

I urged EPA not to rely on voluntary negotiations but instead issue a unilateral enforcement order.

Very few members of the public realize, despite a multi-year remedial investigation and numerous informal EPA meetings on the site (which can lull the public into a stupor and winnow out involvement over the years), that there is only one legally mandated official on the record public hearing where public comment is meaningful and can actually have an impact on EPA cleanup decisions. That time is now. The public comment period closes on July 30, 2011 (see this for how to comment).

[Update #2 – 1/31/12 – Well, today we read that a lot of water has gone under the bridge since July! Always great to learn about stuff from the newspaper! (snark!)

In September, EPA and DEP both approved the ROD.

The EPA response blows off all my comments.

And worse, it looks like EPA still has not entered into the ACO for deed restrictions, long term OM&M, cost recovery et al as promised.

And EPA was supposed to have been providing email reports and updates since July! Despite having made that commitment to do so more than once at the July hearing (see the transcript), EPA failed to do so.

Since I was the most knowledgeable and critical commenter at the July public hearing, I spoke with EPA coordinator Pat Seppi after the hearing, and was quoted in the newspaper sort the next day, there is NO way that EPA failure to keep me in the loop was an accident.]

Update 1: This could be why the DEP is not interested in the leachate flowing into the Delaware River from the Riegel Paper Co. landfill:

Approximately six years after Crown purchased the landfill, it filed for bankruptcy protection in the Northern District of California. As part of those bankruptcy proceedings, it filed a motion under 11 U.S.C.A. § 554 to abandon its interest in this landfill, as well as several others that it owned and operated. The DEP objected to this abandonment because of the potential risks to the environment posed by abandoned landfills. To secure the DEP’s agreement to this motion, Crown agreed to pay $1 million to the DEP to be used “to investigate, close, clean-up, or otherwise remediate any environmental condition on any and all property” of Crown in New Jersey. Based upon this payment, the DEP withdrew its objection to the motion, and the bankruptcy court entered an order on March 2, 2001, authorizing the abandonment of this property. The order entered by the bankruptcy court simply referred to abandoning the property and did not mention the 1991 agreement that structured the manner in which the landfill was to operate, nor did it convey title to the underlying land.

Following entry of that order, the DEP used a majority of the funds from Crown to close up another of Crown’s landfills that it considered to require immediate attention. The DEP did no more with the Warren Glen landfill than to periodically visit it and to mow the grass to keep it from becoming overgrown. –

And how’s this for DEP’s ability to monitor its permits and know what the hell is going on – sound like there was illegal leachate discharge to the Musconetcong River:

FiberMark eventually determined, however, in or around November 2005 that it was no longer economically viable to operate the paper mill and began to explore shutting it down and disposing of it and its equipment. Closing the mill of necessity involved closing the treatment lagoons into which leachate from the landfill was continuing to flow.

FiberMark did not immediately contact the DEP about its plans, and the DEP learned of them through newspaper reports in early 2006 and began the process, internally, of considering how to proceed. In April 2006, the DEP hired a consulting team formed by The Louis Berger Group, Inc. and Sadat Associates, Inc. (“Berger/Sadat”) to investigate conditions at the Warren Glen landfill, with a particular focus on the potential for erosion, the condition of the landfill’s cap, which appeared to contain cracks, and leachate from the landfill. – end update

Christie Government Of, By, and For the Corporations

[Update: 7/18/11 -  I missed the implications of this in my initial reading of this story. It is a pretty revealing (and incredibly stupid) statement (to a reporter), announcing a clear intent to act in an official governmental capacity to cut private back room deals, frustrate transparency and accountability, and exploit OPRA. This is an outrageous abuse of power and a shocking admission coming from Guadagno, who is a lawyer and should know better: 

“McDaniel stressed that the non-profit could accomplish what state officials could not.

The non-profit can “wine and dine” firms who may relocate to New Jersey, Guadagno said. 

Conversely, McDaniel is not copied on any e-mails, because that would make the non-profit subject to Open Public Records Act laws. “It becomes an OPRA issue,” Guadagno said.

“Best to stay away,” McDaniel added. But the group shares updates on developments in person. Guadagno also attends Choose New Jersey events.

This admission by Gudagno herself confirms precisely the abuses I wrote about last February, which bears repeating:

The Lt. Governor is given powers to work behind closed doors and block regulations  in a way that is sharply at odds with the due process, transparency, and public participation requirements of NJ’s Administrative Procedures Act. This unaccountable power literally invites abuse by private interests. The Lt. Governor is given powers to change decision standards and gut laws enacted by the Legislature that delegate powers to State Departments, like DEP, to protect the public’s interest in the environment, not necessarily promote the narrow private business interests of friends of the Governor. – end update]

Don’t say we didn’t warn you – early and often – about this long ago. See:

• Christie Regulatory Czar Given The Power and Tools To Rollback Environmental and Public Health Protections
• Democrats in Legislature Join Christie “Red Tape” Environmental Rollback Juggernaut
• Red Tape Rollback Rolls at Montclair
• Christie “Red Tape” Rollback Bills Re-Emerge – Backed by Democratic Legislators
• Regulatory Update: DEP Dead in the Water; Enviro’s AWOL; Press and Dems Asleep
• Christie Red Tape Review Spawns More Red Tape

Lt. Gov. and Regulatory Czar, Kim Guadagno, takes the Oath of Office

So we were disappointed but not surprised by today’s Star Ledger and Bergen Record coverage of an important story, about the next phase of Christie “Regulatory Czar” Lt. Governnor Guadagno’s power grab: Guadagno embraces new clout her office may get.

That news coverage may be too little too late, but it’s a huge improvement on reporting about Guadagno’s hurt feelings.

The story begins with this warning:

Unless the Legislature blocks the move, Guadagno — a Republican and the only lieutenant governor in the nation who also serves as a secretary of state — assumes broad powers over critical areas where businesses want advantages: planning and zoning guidelines, business retention programs, including possible tax incentives, and the struggle for balance between development and environmental rules.

On June 29, Governor Christie issued reorganization plans that move three key agencies — the Office of Smart Growth, the state Planning Commission and the Business Retention and Attraction Division — under Guadagno’s State Department.

The shift only adds to her growing stable of powers. Through executive orders issued last year by Christie, Guadagno already recommends pruning kinds of state regulation through her leadership of a Red Tape Commission.

So now Guadagno assumes statewide planning powers – for all functional and programmatic plans, including the NJ State Development and Redevelopment Plan , and federally mandated NJ DOT’s Transportation Improvement Program and regional  MPO’s and NJ Transit/MPO plans.

This power includes various key DEP plans like the Water Quality Management Plan, the Water Supply Master Plan (and Action Plan), the Global Warming Response Act Plan, and maybe even NJ’s federally mandated Clean Air Act State Implementation Plan –  in addition to her Regulatory Czar role.

This must be blocked by the Democratically controlled Legislature and US EPA, as some of Guadagno’s powers violate federal environmental laws because DEP functional plans are federally mandated.

As is so typical, the land use planning community is out to lunch and reluctant or down right afraid to challenge Christie on policy grounds.

Worse, a Rutgers planning professor is supporting home rule! Yikes! What the hell was he thinking? Home rule is the bane of sound planning!

Many in the planning community who support the changes say they are watching the concentration of power in the executive branch. Some caution that the state’s clout should not be allowed to overshadow the ability of towns to govern their business growth.

“Municipalities are as critical partners in economic development as the state,” said Stuart Meck, director of the planning practice program at Rutgers University’s Bloustein School. “Anything that gets in the way of towns’ power to develop their own plans would be a step backward.”

And DEP’s head promoter of economic development has the belly laugh quote of the day:

As the lieutenant governor can intervene with towns, so developers may soon file objections to environmental regulations.

Michele Siekerka, the deputy commissioner at the DEP, interacts with the Business Action Center. She said developers often ask about a proposed rule allowing certain DEP regulations to be waived: “We expect that will come into effect in the fall,” she said.

“But that rule change will not be a tool to get around our state regulations.”

Right.

NJ Spotlight held an energy policy forum last Friday on “NJ’s Thirst for Power”.

I attended and planned to write about what I heard in the context of the Christie Administration’s proposed changes to the energy policies in the Energy Master Plan.

But today Tom Johnson reports on some of the panel discussion, and does some of the heavy lifting for me (see: A Decade into Deregulation, Where are NJ’s New Power Plants?  Debated at the NJ Spotlight forum: Do subsidies motivate new construction or saddle ratepayers with bigger bills?

So let me make a few brief points on Tom’s article. I will hold off on writing a more thorough analysis until sometime before the upcoming public hearings on the EMP.

First off, a huge thanks to NJ Spotlight for shedding light on a key set of issues. They are the only game in town in terms of credible news coverage of the energy issue.

I came away from the panel discussion with the sense that:

• the field is rife with misinformation;
• the facts contradict much of the rhetoric and Christie policy premises;
• the complexity of the issues and inside baseball deliberations have frustrated any possibility of public involvement or transparency in huge economic and environmental policy decisions made behind closed doors with energy industry insiders driving the policy;
• energy markets are rife with “market failure” and energy deregulation has been a failure. This has caused NJ consumers to pay a huge price for energy while cheaper cleaner energy sources are marginalized;
• huge subsidies to and the true costs of fossil fuels – in terms of public health, environmental impacts, and global warming – are not considered at all;
• the global warming issue is not even on the table in policy deliberations.

Here are just a few issues raised by the panelists:

1. Huge Surplus Power

Governor Chrisitie’s energy policy is driven my two (competing and contradictory) policies:

• the need to lower the cost of energy that is purportedly driving away jobs, private investment, and economic development. This is to be done primarily by eliminating “socialized” “subsidies” like the SBC and RGGI charges and promoting “free markets”; and
• to build more instate fossil power capacity to meet what is described as a reliability crisis, resulting from a severe mismatch between rising energy demand and a deficit of power.

PSEG has gone further and said that due to energy shortfalls, NJ may face blackouts and rolling brownouts and must build expensive and environmentally destructive new transmission lines to import more power.

PSEG’s disengenuous scare tactics may reflect the fact that PSEG earns a significant share of their profits on transmission investments, not power generation or demand management.

But, to the contrary, the experts agreed that NJ and the PJM grid have a HUGE SURPLUS POWER CAPACITY.

Tom Johnson reports a 14-18% surplus, but that is the LOW end of the surplus (known as “reserve capacity”) – I heard one panelist claim that it is in the range of 25-30%.

“Fremont argued the reason no new generation is being built in the state is probably related to an oversupply in capacity margin in the region, as evidenced by reserve margins (the amount of capacity available above what is needed) ranging from 14 percent to 18 percent.”

Of course, such excess capacity makes PSEG claims of rolling blackouts and need for more transmission lines big lies, no?

2. Huge Industry Subsidies Hidden in “Capacity Payments”

To provide “incentives” (subsidies) to build even more costly excess capacity, to assure that the power generation is located nearby the sources of energy demand, and to promote grid reliability, PJM imposes what are called “location based” “capacity payments“.

NJ consumers pay more than $1.2 billion per year in these charges, which dwarf RGGI and SBC charges.

The huge costs of the PJM capacity payments makes Governor Christie’s attacks on solar subsidies, costs of RGGI, and SBC Clean Energy program seem absurd and disengenuous, no?

Ditto the Christie EMP policy changes to promote construction of more in state fossil power. Why do we seek to build new in state capacity when we have  a glut and energy demand is shrinking?

In addition to what Tom Johnson reports about the excess capacity (“reserve margin”), one panelist claimed that 6,900 MW of capacity didn’t “clear” the bidding process and had been retired from the PJM grid. Basically, that measn fossil plants are shutting down because they are not economic.

3. NJ Exports Lots of Power to NY City

We have far too much power and we are exporting tons of in state generated power to NYC –  According to PJM, the following NJ power exports are planned or underway:

• 1,200 MW (Bergen, proposed)
• 300 MW (Linden under construction)
• 200 MW (Linden, proposed)
• 660 MW (Neptune to Long Island, existing)

So why do we need to pay $1.2 billion in capacity payments – on top of the huge infrastructure costs to distribute that power to NYC?

4. Energy Demand – Flat or Declining

This issue was not discussed by the panelsits, but I understand that demand is flat or declining, due to NJ’s longstanding investments in a succcessful suite of energy conservation, efficiency, and demand management programs.

This is a real decline (not just a reduction in the projected rate of growth) and is independent of and in addition to dampened demand due to the economic recession.

So much for NJ’s so called “thirst for power”.

5. Deep Policy Contradictions

Energy policy must balance conflicting objectives of economic efficiency, ratepayer costs, environmental protection, and promotion of renewable power and green jobs.

Computer models can only guide – not dictate – those policy decisions.

In addition to the tremendous economic costs of excess capacity, readers also should know that the PJM economic enery planning model that generates the capacity payments has policy problems.

The model is biased in favor of fossil fuel capacity and it undermines demand management and conservation (negawatts). This capacity is far cheaper, far cleaner, and produces far more jobs, than traditional fossil and transmission systems.

I recently read a PSEG document that bragged that PJM capacity payment subsidies were what kept NJ coal plants open! (at over $1 billion in new pollution control costs, paid by ratepayers, not PSEG shareholders and investors).

WTF are we doing?

The Christie policy is insane. The facts contadict all the policy premises!

More to come on how this all relates to the Christie draft Energy Master Plan.

Corporate Interests Dominate Christie DEP – From the Inside

[Update: 7/12/11: Kozinski’s bio at the Saul Ewing website has been scrubbed – as were other websites with pdf’s of her bio. What do they have to hide? That’s why I printed the full text below. On Friday, we filed an OPRA request for all DEP ethics review documents and Kozinski disclosures and recusals. In reecord response time, surprised to learn today that none have been filed and are not expected until August 1, which I was told by DEP OPRA Office is her start date at DEP. At a minimum, this means Kozinski was hired without any ethics review. We look forward to seeing DEP ethics review documents and all the recusals from all DEP business relating to prior clients – in detail, to include such restrictions as leaving DEP management team or permit or enforcement meetings when those issues are discussed, and having no role in chain of command decisions relating to those interests. Given the list of business interests and clients she represented in her Saul Ewing capacity, Kozinski should be spending lots of time doing absolutely nothing under strict recusal – end update.]

DEP Commissioner Bob Martin, a former corporate consultant, announced the appointment of a new Assistant Commissioner for Environmental Management.

This is a key management position in DEP, because it oversees critical air quality, solid and hazardous waste, and environmental health and safety programs.

Martin appointed a fellow private sector corporate advocate, Jane Kozinski, as Assistant Commissioner for Environmental Management.

Kozinski was a corporate lawyer for Saul Ewing, “a full service firm that serves businesses throughout the United States and internationally, including recognizable names in corporate America: – here is her bio:

Jane Kozinski is a Senior Climate Change Policy Advisor for the British Embassy and a member ofaul Ewing’s Project and Resource Development Department. In her work for the British Embassy, she works with United States businesses and state governments to develop their support for federal climate change and energy legislation and US participation in international actions to address climate change.

In her legal practice, Ms. Kozinski brings to clients a thorough understanding of federal environmental laws and regulations, including CERCLA, the Clean Air Act, RCRA, the Clean Water Act, and comparable state laws, including New Jersey’s ISRA and Solid Waste Management Act. She counsels clients in regulatory compliance and environmental issues arising from business and real estate transactions, and also represents clients in commercial litigation. Her clients range from large Fortune 500 companies to small- to medium-sized businesses in a variety of industries, including solid waste, electric and gas, natural gas transmission, pharmaceutical, mining, commercial real estate development, metal fabrication, fragrance and flavors, retail fuel, and more.

Ms. Kozinski’s experience in environmental litigation includes the defense and prosecution of numerous private party cost recovery actions under CERCLA and comparable state law in New Jersey and New York, as well as defense of government CERCLA cost recovery actions. Most recently, she represented clients in the defense of CERCLA actions that involve unique theories of corporate successor liability and derivative parent liability. She also has experience in the defense of class actions and environmental citizen suits.

In recent years, Ms. Kozinski led the Firm’s climate change practice. She has counseled clients on carbon off-sets, disclosure of climate change risk, and the advantages/disadvantages of proposed federal climate change legislation. She is frequently asked to write and speak on global climate change, reducing greenhouse gas emissions and related environmental issues.

Prior to joining Saul Ewing, Ms. Kozinski was an Associate at Bingham Dana & Gould in Boston. Before pursuing her career in law, Ms. Kozinski was a hydrologist at the United States Geological Survey.

Kozinski, who will oversee DEP issuance of solid and hazardous waste permits, previously represented NJ garbage industry giant Waste Management, Inc. Waste Management Inc. is regulated by NJ DEP.

Kozinski is another abuse of the revolving door, as it swings open at DEP and puts former advocates for polluters in charge of regulation of those same polluters.

So we assume that the Waste Management Inc. conflict and all other conflicts of interest resulting from her former clients have forced Kozinski to file ethics disclosure statements and multiple recusals.

Kozinski has represented private corporate interests in class action and citizen suits. This is a bad sign in terms of an ability to fairly represent and defend the public interest at DEP and promote citizen involvement in DEP decisions.

Kozinski also has written about the numerous loopholes in state and federal law that allow “sham recycling” to flourish. Sham recycling loopholes have been created as a result of lobbying by corporate lawyers like Kozinski.

EPA data shows that sham recycling operations have caused major environmental problems, including the creation of 120 Superfund sites, 22 RCRA “imminent and substantial threat” sites, and serious pollution of soils, surface and ground water, and natural resource damages at 800 other sites nationally.

Kozinski’s former corporate clients – like Waste Management, Inc. – and her advocacy of regulatory loopholes raise serious red flags and troubling question for a DEP manager that will oversee air, waste, and environmental health and safety regulatory oversight.

This appointment is particularly troubling in light of the Christie adminsitration’s deregulation and privatization policies, and Commisssioner Martin’s edict that DEP should promote economic development.

Kozinski joins Commissioner Martin and other DEP managers who are private sector sharks – the proverbial foxes in the henhouse.

Kozinski will be closely monitored.

First off, my apologies for missing the June 20 “real community advisory group” meeting. Breaking events and I got stuck in Trenton and had to write about this and this and this and this.

In the last 24 hours, friends in Pompton Lakes have sent me three documents. Our thanks to Edison Wetlands Association for filing the OPRA records request and doing the DEP file review to produce some of these important documents.

Each one, individually, would be a cause for concern.

But all three at once – especially given the high profile self described commitments by US EPA and by NJ DEP to the Pompton Lakes community – make my head explode and therefore demand a public accountability and shaming. Thus this brief note.

First, is the EPA so called “unannounced” inspection of the Dupont site that Dave Kluesner of EPA distributed via email on July  6.

That document, on EPA letterhead, dated June 8, 2011, described a May 5, 2011 “RCRA Site Visit and Assessment” by the EPA RCRA enforcement and compliance office.

This is a sham effort by EPA to create the false appearance of some on scene presence at the Dupont site and enforcement oversight.

But it is just manipulative bullshit, my friends.

• Why is EPA relying on the verbal representations of Dupont officials regarding compliance and environmental conditions at the site?
• Why is EPA not conducting field sampling to verify claims and determine compliance?
• Why are EPA RCRA field enforcement staff just getting “familiar” (that is EPA’s word to describe the purpose of the visit) with the Dupont site, after a RCRA permit was issued by EPA almost 20 years ago, back in 1992? Could this possibly be their first inspection there?
• Why was the EPA site inspection not based on a punch list that tracks back to enforceable specific RCRA facility permit requirements and the RCRA regulations? This is how all other site inspection and compliance and enforcement oversight actions I am aware of are conducted.

Second is the EPA’s 1982 Superfund Hazard Ranking Score (HRS) for the Dupont site. That 1982 EPA document was conveyed by US EPA Region 2 to NJ DEP via a March 8, 2009 letter.

That’s a very relevant document, given the longstanding debate about listing the site on Superfund or continuing to manage it under joint NJ DEP and EPA RCRA Corrective Action Program oversight.

The HRS scoring is a pre-requisite to Superfund listing. Scores are based on risk to human health and the environment. Scores above 28.5 qualify for Superfund. The Dupont site scored 3 times higher than that, even without risks from vapor intrusion into homes considered.

Again, this illustrates total bullshit.

Why are we just finding out about this document now? Why did EWA have to file an OPRA records request and do a file review to find it and force its disclosure?

The 1982 HRS document was sent from EPA to NJ DEP back in March 2009.

• Why did both EPA and DEP not subsequently release it to the public during the course of the intensive and controversial RCRA v. CERCLA debate?
• Why did both agencies let the public mistakenly believe that no HRS was done? I erroneously wrote that here at Wolfenotes as well.

Both NJ DEP and US EPA were asked point blank about this HRS issue from day 1. I can only assume either:

• gross incompetence
• bad faith and cover up
• combination of both

Someone needs to ask NJ DEP Commissioner Martin and US EPA RA Enck those questions

Third, is a document  I just got and was asked to review, titled “Acid Brook Delta – Revised Corrective Measures Implementation Workplan” (December 2010).

But before I even look at it, I must note that the regulatory RCRA Corrective Action cleanup decisions were made by Dupont and approved by EPA and DEP way back in October 2009 (see: RASR/CMS at page 2).

[Update: There seems to be some manufactured confusion about how the public is limited due to prior DEP and EPA regulatory approvals of Dupont’s cleanup plans. So let me lay it out more clearly. Dupont unilaterally selected the cleanup objectives, alternatives, and selected cleanup approach. Then EPA and DEP approvals were issued for Dupont’s cleanup plan without any public notice or public comment. Dupont is now just telling us how they are going to implement EPA and DEP approved plans. This is a sham. Public comments can only tinker around the margins, but the public can have no impact on cleanup alternatives or the basic scope and technical approach to the cleanup. In contrast, under Superfund, Dupont is not in the driver’s seat. The public is provided an opportunity to comment on cleanup alternatives, cleanup goals and technical approaches before EPA (not Dupont) selects the cleanup option. That’s why Dupont opposes Superfund – EPA can select a costly cleanup option preferred by the community (one example: the geographic scope and impacts of off site contaminant migration. Dupont has limited that to portions of ABD and lakefront uplands). But Dupont still remains in control. Proving this, here is text from page 2 (see also response to comment from Ms Kachur):

A Remedial Action Selection Report/Corrrective Measures Study (RASR/CMS) was prepared [by Dupont] to identify the remedial options for the Acid Broook Delata Area (ABD). The RASR/CMS included Remedial Action Objectives [defined and selected by Dupont] to achieve protection of human health and the environment and an evaluation [conducted by Dupont] (sic) potential remedial measures, with removal selected [by Dupont] as the preferred remedial approach. In October 2009, the NJ DEP and US EPA approved the RASR/CMS. Therefore, this document has been developed [by Dupont] to outline the remedial approach to be used [by Dupont] to implement removal of sediment and soil from the ABD and surrounding uplands [delineated by Dupont] to achieve the Remedial Action Outcomes [defined and selected by Dupont].

Get what’s going on yet? – end update]

So what can be done now?  It’s far too late to change the scope of the cleanup. Best case is rearranging deck chairs on the Titanic.

This too looks like manipulative window dressing.

Given all the political rhetoric and EPA commitments about enhancing community involvement in historically back room cleanup decisions made by Dupont and rubber stamped by the NJ DEP, this is especially disgusting.

Over and out.