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EPA Playing Superfund Games at Dupont Site

EPA Puts Politics Above Risks To Human Health and Environment

EPA Rejects Residents’ Superfund Request in Advance of RCRA Permit

Over 1,000 sites were listed on the NPL before State concurrence policy began in 1995. EPA does NOT need Governor Christie's permission to its the Dupont site

 

Disgusted by exclusion from cleanup decisions, lax oversight by NJ DEP, and the slow pace of cleanup, residents of Pompton Lakes have waged a campaign to pressure EPA to list the Dupont site as a Superfund site. More than 10,000 people have signed a petition in support of their efforts.

The campaign began when residents learned that the Dupont site scored an extraordinarily high 70 on the EPA’s Hazard Ranking Score (HRS) back in 1982, a fact that EPA denied and was withheld from residents for over 2 decades.

And the site was scored 70 WITHOUT considering indoor toxic vapor intrusion risks at over 450 homes.

A site qualifies for Superfund if the HRS exceeds 28.5 – so Dupont clearly qualified for Superfund listing a long time ago (Technically, it is important to note that the 1982 HRS was conducted before the 1988 NJ DEP ACO and current RCRA Corrective Action oversight began, so there was no excuse not to list the site long ago).

Residents have received support of Congressman Pascrell and Senator Menendez – Menendez wrote a strong letter demanding an EPA explanation of why they have not listed the site on Superfund given this HRS score. (see the wonderful press Menendez received for his efforts:  Superfund designation sought for Pompton Lakes pollution sites

For over 2 years, EPA has merely listened respectfully but not taken any action to list the site in lieu of relying on the RCRA program to manage the cleanup in partnership with NJDEP.

On August 7, 2012, this petition recently was delivered to Gov. Christie to seek his support.

In the latest move, residents had a meeting with EPA Regional Adminsitrator Enck on August 22, 2012.

For over 2 years now, since residents initiated this Superfund listing request of EPA, Enck repeatedly has said she would not list the Dupont site on Superfund “at this time”.

The “at this time” phrase has left the door open, raised expectations, and encouraged residents to spend time and energy in hopes of changing Enck’s mind.

EPA officials explicitly reaffirmed this “at this time” policy as recently as the August 1, 2012 RCRA presentation, where I asked them specifically about that.

Well, apparently, Enck’s mind is now made up – and it likely has been made up from day one.

If Enck is unwilling to fight internal EPA politics and Governor Christie, that is not a good indicator that she will be willing to take on Dupont and mandate a complete cleanup  in the upcoming final RCRA permit regarding the cleanup of the Lake (Acid Brook Delta).

The August 22, 2012 meeting notes indicate that EPA RA Enck said the following:

Ms. Enck responded with the fact that a Superfund designation has never happened in history without a Governor’s request. She also explaied that some lawyers think it is possible to do this without the Governor’s request BUT she is not willing to be the first to do it. Going to war with the state over a Superfund designation is not going to get us results or cooperation. It has never been done before in the whole country.

Ms. Enck’s EPA statement has now made it absolutely clear that EPA is putting politics before risks.

Enck’s comments prompted my letter below to her to clarify the issues that are so misleadingly summarized in that excerpt:

Dear Regional Administrator Enck –  I just received notes of your August 22 meeting with Pompton Lakes residents.

I would like to focus on point #4, which characterizes your response. If this summary is accurate, you must know that your comments were deeply misleading and the epitome of a lack of EPA leadership. Three quick points and a concluding observation:

1. At the outset, there is fundamental distinction between EPA initiating an NPL concurrence request to the Governor (which is how I read EPA policy), versus waiting for a State to take the initiative and ask EPA to list a site. The latter appears to be your policy approach in Pompton Lakes. The Governor of NJ would be hard pressed to publicly state a rationale for rejecting EPA’s request to list Dupont.

Have you written that letter to NJ Gov. Christie?

2. The “federalism” policy under Superfund (which is what you rely on and is now called State concurrence) originated in FY 1995 budget riders during the Gingrich 104th Congress and President Clinton’s political concession response in Executive Order 13132 (and yes, I still have my copy of Al Gore’s Report on “Reinventing Government“).

a. Congress has not attached similar budget language since FY 1996 (see below)

b. EPA has found that EO 13132 does NOT apply to NPL listing decisions (see below)

. Applicable EPA regulations (NCP – 40 CFR 300.425) vest the final NPL listing decision firmly and exclusively within EPA discretion and clearly emphasize risk as the primary basis for the exercise of discretion.

Those rules not only do not require state concurrence, they say NOTHING about that. The role of State’s in NPL listing is clearly circumscribed by the provision to allow exclusive NPL listing discretion (no HRS required) request role to a single site. While the rules put EPA in charge and are silent on a State role in listing, they do very clearly require state role on delisting. (see rule text)

Have you written a policy memo with recommendations to EPA HQ that lays out this legal and policy landscape, backed up with recent HRS scores for Dupont site?? 

I have praised you repeatedly, not based on personal knowledge of you or your work, but simply your affiliation with Eliot Spitzer.

Were Spitzer EPA RA, he surely would not unilaterally surrender to and be bound by the flawed political policy you defend. 

He would have gone to the matt with EPA HQ and he would have put NJ Gov. Christie in a box on this.

And, after having lost that battle, he would have been honest with the people who got screwed.

This is the kind of pushback you would have received had I been at that meeting.

Bill Wolfe

Sources:

Point #1

Congressional Research Service Report for Congress

13 P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of concurrence from the governor of a state prior to listing a site in that state on the National Priorities List. P.L. 104-134 (an FY1996 appropriations bill) provided similar direction. EPA, as a matter of policy to further enhance the role of states in the Superfund program, continues to request a governor’s letter of concurrence prior to NPL listing. 

Point #2

Fed Reg./ Vol 77 No. 51/ March 15, 2012 (@ 15277)

Executive Order 13132, entitled ‘‘Federalism’’ (see: 64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.’

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it does not contain any requirements applicable to states or other levels of government. Thus, the requirements of the Executive Order do not apply to this final rule.

The EPA believes, however, that this final rule may be of significant interest to state governments. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA therefore consulted with state officials and/or representatives of state governments early in the process of developing the rule to permit them to have meaningful and timely input into its development. All sites included in this final rule were referred to the EPA by states for listing. For all sites in this rule, the EPA received letters of support either from the Governor or a state official who was delegated the authority by the Governor to speak on their behalf regarding NPL listing decisions. 

Point #3 

 Full Report:

Superfund: Overview and Selected Issues

Relevant excerpt

The National Priorities List.

Sites that score high enough on the HRS are eligible for the National Priorities List (NPL), which is generally considered the official list of the most hazardous sites in the nation. Only a small percentage of the sites assessed are placed on the NPL. Over Superfund’s history, EPA has placed 1,547 sites on the NPL. Of these sites, 309 have met cleanup goals and were subsequently removed (deleted) from the NPL.9

The NPL has been described as the centerpiece of the Superfund program, and thus it has been a focal point for criticism of the program. As noted in a comprehensive report prepared by Resources for the Future (RFF)10 (hereafter referred to as the RFF Report):11

“The expense and pace of cleaning up NPL sites has been, and continues to be, a contentious topic among followers of the Superfund program…. [E]ven though more than half of all NPL sites have been deemed “construction complete” — meaning that all physical remedies are in place and immediate risks posed by the site have been addressed — there remain hundreds of sites placed on the NPL during the early years of the program where cleanup remedies have still not been fully implemented. “

Some interest groups have questioned the listing process itself and the slow pace of cleanup at NPL sites. The decision to list a site on the NPL is ultimately at EPA’s discretion.12 Many factors, other than the HRS score, influence whether a site is proposed for listing — for example, state support,13 community concerns,14 and Superfund budgetary issues.15 EP A has stated that

“The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Neither does placing a site on the NPL mean that any remedial or removal action necessarily need be taken.16 “

(footnotes for this text:

10 Congress directed RFF to generate the report in the FY2000 VA-HUD-Independent Agencies appropriation (P.L. 106-74) conference report.

11 Probst,Katherine,etal.,2001,Superfund’s Future: What Will It Cost?,Resources for the Future, p. 31.

12 The process has been called “more art than science.” Probst, Katherine, 2005, “Superfund at 25 – What Remains To Be Done?” Resources, Fall 2005, p. 20.

13 P.L. 104-19 (an FY1995 appropriations bill) directed EPA to obtain a letter of concurrence from the governor of a state prior to listing a site in that state on the National Priorities List. P.L. 104-134 (an FY1996 appropriations bill) provided similar direction. EPA, as a matter of policy to further enhance the role of states in the Superfund program, continues to request a governor’s letter of concurrence prior to NPL listing.

14 An NPL designation generally carries a stigma, and local communities often worry about the effects an NPL site will have on nearby property values.

15 For example, EPA might be hesitant to list “mega sites” on the NPL, unless the parties responsible for the site have been identified. RFF Report, p. 89.

16 See, for example, U.S. EPA, “National Priorities List for Uncontrolled Hazardous Waste Sites,” 70 Federal Register 54329, Sep. 14, 2005.

17 40 CFR § 300.425(b)(1).

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  1. September 9th, 2012 at 12:22 | #1

    Bill Wolfe:

    I cannot thank you enough for all you do to try and help us here in Pompton Lakes. We need someone to step “out of the box” and do what is necessary to clean-up the community of Pompton Lakes once and for all. We must make sure our families are safe. Our future children and our enviroment will suffer once again if the right steps are not taken here in Pompton Lakes NOW – 30 years is a long time to wait!

    PLEASE for those reading this article – WE REALLY NEED YOUR HELP! Please continue to sign and share our petition. 10,839 signatures and counting but we need this petition to go to a viral stage and we can’t do it without your help.

    Stop DuPont Chemical from Poisoning New Jersey Families
    http://www.change.org/petitions/stop-dupont-chemical-from-poisoning-new-jersey-families

  2. Karen Dean
    September 10th, 2012 at 05:19 | #2

    I too thank you very much for all you do. I woke up to this this morning and I am so saddened and disgusted. Everyone of us have a story and the stories seem to worsen. This is my home for 60yrs it’s gone. I still feel if we were in a more affluent area this would not be happening. I really beleive Judith was the one the strong person she seems to be but maybe I was wrong. I have learned to trust no one……………….

  3. Ed Meakem
    September 10th, 2012 at 09:03 | #3

    Once again a Great in your face letter of facts come on EPA do the right thing PLEASE.

  4. Michael A. Keough
    September 11th, 2012 at 05:26 | #4

    The same old story; The same old tale. The USEPA, The NJDEP, and the Politicians are playing both sides against the middle; But the playing field is owned and tilted towards the BIG MONEY Polluters! And who knows what “Military Secrets” are being swept under the contaminated rug! Its outright disgusting how the bureaucrats keep eminating a false efficacy to the people and at the expense of the people’s health and well being. Not to mention an economic travestyas well.

  5. Michael A. Keough
    September 11th, 2012 at 05:32 | #5

    Its the same old story; The same old tale. The USEPA, The NJDEP, and the Politicians are playing both sides against the middle; But the playing field is owned by and tilted towards the BIG MONEY Polluters! And who knows what “Military Secrets” are being swept under the contaminated rug! Its outright disgusting how the bureaucrats keep eminating a false efficacy to the people and at the expense of the people’s health and well being. Not to mention an economic travesty as well.

  6. Ed Meakem
    September 12th, 2012 at 11:36 | #6

    Any thing from Ms. Enck?

  7. September 12th, 2012 at 11:53 | #7

    @Ed Meakem

    Ed – she sent me an immediate email reply that said “Thank you for the information”.

    Right.

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