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EPA Violates Its Own Policy and Agrees with Dupont

[Update: 2/7/12: Josh Fox got a lot of mileage from the scene in his movie “Gasland”, where the tap water explodes.

But that’s chump change compared to the situation at the Dupont Pompton Lakes facility – Watch the Youtube!.

For over 90 years, Dupont manufactured millions of tons of explosives, using mercury fulminate. In addition to the air and water discharges of mercury from manufacturing operations, Dupont exploded tons of surplus or off spec explosives in a small “shooting pond” and burned high level hazardous waste with no emissions controls in two open burning areas.

Take a look at how mercury fulminate behaves – and think of all the mercury dispersed across the Dupont site and surrounding areas; Watch the Youtube and eat your heart out Josh Fox!  ~~- end update]

The Bergen Record today finally wrote the story on the Dupont Acid Brook Delta cleanup plan (see: Cleanup may put wildlife at risk)

That could be the worst headline I’ve ever read – it is Dupont’s mercury emissions that “put wildlife at risk”, not the cleanup!

But aside from the horrible headline, the story itself is pretty good – that’s a self compliment, as we pitched the entire story, soup to nuts, and spent hours briefing reporter Jim O’Neill and providing all the various Dupont and DEP documents (see: DUPONT POMPTON LAKE POLLUTION MAY BE HEADED DOWNSTREAM — DEP Scientists’ Questions Could Prompt Feds to Expand DuPont Cleanup Scope

But you wouldn’t know any of that from reading the story, which makes it appear like all we did was post documents that Ed Meakem previously had been given under OPRA.

While noting the Meakem OPRA, I find it curious that the story fails to note that DEP denied me access to these same scientific documents under the state Open Public Records Act, claiming they were “deliberative”, despite the fact that DEP previously had released these same documents to Ed. The fact that DEP selectively hid the documents from me ought too tell you something about the lack of integrity at DEP.

I must note that the story left out a key point: DEP scientists found that Dupont’s science was “misleading” regarding fish tissue mercury concentrations. The fish tissue concentrations in Pompton Lake and downriver are the lynchpin to the whole argument about Dupont’s mercury emissions as the source.

To his credit, reporter Jim ONeill clearly understood and nailed that issue:

A state scientist expressed alarm about elevated mercury levels in fish downstream from the lake in a May 2008 internal email and named DuPont as the likely source. “It is clear that fish in Pompton Lake are elevated in mercury relative to the rest of the watershed,” wrote Gary Buchanan, chief of the state Department of Environmental Protection’s natural resources science bureau.

“All the weight of evidence points to the Acid Brook Delta mercury (i.e., DuPont) as the source of elevated mercury in the fish,” Buchanan wrote. “Of particular note is the elevated levels of mercury in fish directly downstream of Pompton Lake. This raises a flag about downstream transport of mercury.”

Dupont explicitly restricted the scope of the cleanup to just 26 acres of the Acid Brook Delta and expressly refused to consider downriver sediments and impacts, so that “flag about downstream transport of mercury” finding is HUGE.

The fact that fish tissue mercury concentrations are significantly higher in Pompton Lake and downriver than the surrounding region is the smoking gun that points to Dupont as the cause of the problem.

Dupont tried to misrepresent that critical data and the DEP called them on it.

That is HUGELY SIGNIFICANT.

One other point warrants followup is the issue of “background” mercury levels.

I was extremely disturbed by this EPA statement, which agrees with Dupont’s misrepresentations about the “background” levels of mercury:

“The removal of the sediments from the delta will capture nearly all of the mercury contamination that can be directly attributed to DuPont’s discharge,” said DEP spokesman Larry Ragonese.

Ariel Iglesias, the EPA’s regional deputy director of environmental protection and planning, agreed. “The rest of the lake’s mercury concentrations are more representative of background concentrations, even above the lake,” Iglesias said.

That is bullshit, my friends.

And as I previously wrote, EPA’s Iglesias’s statement contradicts EPA’s own Office of Solid Waste and Emergency Response Guidance on how to derive “background”.

According to the USEPA, background refers to constituents that are not influenced by the discharges from a site, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. “Role of Background in the CERCLA Cleanup Program.” Office of Solid Waste and Emergency Response.

NJ DEP takes the same scientific position on background.  According to NJ DEP’s Ecological Evaluation Guidance:

Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.

The issue is such fundamental importance that I was compelled to write EPA Region 2 Administrator Judith Enck and US FWS the following letter:

Dear Administrator Enck:

Last week, I conducted a file review of the Dupont RCRA issues at the NJ DEP RCRA Enforcement field office.

Please be advised that I saw records that Dupont had two “open burning areas” – 500 lbs of mercury and lead containing hazardous waster per day were permitted to be “cooked” there, with no emission controls.

Other significant mercury sources include the shooting pond (a RCRA regulated land disposal unit) and local air and water emissions from manufacturing operations.

Dupont, NJ DEP, and EPA claims about mercury “background” levels have no supporting data, no scientific basis, and are inconsistent with EPA’s own definition and OSWER Guidance on how to derive “background” levels.

Specifically, according to the USEPA, background refers to “constituents that are not influenced by the discharges from a site“, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. “Role of Background in the CERCLA Cleanup Program.” Office of Solid Waste and Emergency Response.

According to NJ DEP Ecological Evaluation Guidance:

“Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.”

EPA’s statements on mercury background do no reflect the mercury data for the emissions I just summarized above.

Dupont has not provided data on the age of sediments or speciated metals within the sediments to provide some indication of historical background and deposition.

With all that in mind, I take strongest exception to this EPA statement from today’s Bergen Record:

“The removal of the sediments from the delta will capture nearly all of the mercury contamination that can be directly attributed to DuPont’s discharge,” said DEP spokesman Larry Ragonese.

Ariel Iglesias, the EPA’s regional deputy director of environmental protection and planning, agreed.“The rest of the lake’s mercury concentrations are more representative of background concentrations, even above the lake,” Iglesias said.”

We expect better science from EPA and now look to US FWS to correctly analyze this issue.

Bill Wolfe