EPA Issued Dupont Final RCRA Permit for Cleanup of Mercury in Pompton Lake
EPA approved partial cleanup, with no compensation for natural resource injuries
[with updates inserted as I read the documents]
[Update 12/21/12 - NJ Spotlightdoes their usual good reporting: U.S. EPA Commits to More Dredging at Pompton Lake - Joe T. got one of the big points I was trying to make:
On his website, Bill Wolfe of Public Employees for Environmental Responsibility (PEER) noted that the EPA is still allowing DuPont to make some determinations critical to the course of future action, such as an ecological risk assessment. ~~~ end update]
Today EPA issued the final RCRA Corrective Action permit to Dupont for the cleanup of mercury contaminated sediments in Pompton Lake.
According to the EPA press release,
(New York, N.Y. – December 19, 2012) The U.S. Environmental Protection Agency today announced its plan to remove mercury contamination from the sediment of the Acid Brook Delta of Pompton Lake in Pompton Lakes, New Jersey to levels that meet stringent standards to protect people’s health and the environment. The plan will go into effect as a modification of a permit, which legally requires the E.I. du Pont de Nemours & Company, Inc. to fund and perform the work. Under the permit modification, the EPA will require DuPont to dredge at least 100,000 cubic yards of mercury contaminated sediment from the bottom of a 40-acre area of Pompton Lake and remove at least 7,800 cubic yards of contaminated soil from a shoreline area of the lake affected by DuPont’s past discharges. All of the sediment and soil will be sent to a licensed disposal facility.
Like the draft RCRA permit for which EPA was criticized for issuing in the midst of the holiday season last year, again the final permit comes less than a week before Christmas, making it difficult for a busy public and press.
The final Dupont permit and the EPA’s response to comments on the draft permit are not yet available. EPA issued a press release with few details, making quick analysis and response virtually impossible.
[Update 1 - the final permit and response documents are now posted on EPA website - we are reviewing.]
However, per the EPA press release, it looks the lake sediment cleanup area will be expanded from 26 to 40 acres and 35% more sediment will be removed.
That expansion is clearly a victory for residents who opposed the original Dupont plan – including a vindication of our claims about flaws in Dupont’s science and ecological impacts.
EPA also is requiring additional shoreline restoration, to restore the soil between Lakeside Avenue and the edge of the lake.
But this is NOT a complete cleanup we called for and I see no mandate for Dupont to compensate for Natural Resource Damages.
Dupont is required to conduct an ecological risk assessment, but they already did one and it was not based on current science. Given Dupont’s prior failure, why would EPA put that extremely important task – which drives the mercury cleanup – back in their hands? Federal partner USFWS has the expertise and should conduct that work and bill Dupont.
Dupont is allowed to leave mercury in Lake sediments but is not required to compensate for the known adverse ecological impacts of that. I thought USFWS was willing to pull the trigger on that.
It looks like EPA kept the door open on additional future cleanup requirements, after additional study:
Plans to clean up the remaining areas of contamination will be proposed through future permit modifications after ongoing investigations by DuPont have been completed and reviewed by the EPA and the New Jersey Department of Environmental Protection.
[Update 2- Like PCB in the Hudson river, we argued that mercury in Lake sediments likely was moving downstream. EPA "shares our concern". Addressing that concern, we note that the final permit requires that Dupont collect new data - sediment samples downstream from the Dam to determine whether contaminated sediments have in fact travelled. This is very good, but should also include sampling of tissues in fish and wildlife.
Additionally, there are new remediation and restoration plan requirements in the "Upland Soil Area" - USFWS review and approval is required. Sounds good, but I'm not sure of the scope of the "Uplands" right now, so reserve judgement. But again, this responds to our criticisms.]
Instead of allowing Dupont to leave mercury in the lake sediments, EPA should bite the bullet and simply mandate complete cleanup instead of a phased two step process. Dupont will mobilize cleanup equipment and disrupt the community – it makes no sense to repeat this effort.
At a more fundamental level, during the public hearings on the draft permit, numerous residents demanded that the scope of the Lake cleanup be dramatically expanded, to address all source of toxic pollution still remaining on the Dupont site that were draining to the Lake. It appears that EPA has simply ignored those objections.
[Update 3 - EPA made a huge concession to Dupont by argreing with Dupont's claim about "natural" mercury "background" levels at 0.5 ppm in lake sediments - this EPA finding is based on flawed science and severely limits the scope of Dupont's future cleanup obligations.
On a very positive note, EPA rejected Dupont's claims that other sources were responsible and agreed with us and concluded that "elevated levels of mercury can almost exclusively be attributed to [Dupont] PLW historical mercury discharges to Pompton Lake via the Acid Brook ” (but again, EPA narrowed the scope of this responsibility by limiting the route to Acid Brook, thereby ignoring atmospheric deposition and physical transport.]
Finally, the EPA’s issuance of this final RCRA permit essentially means that the debate about Superfund listing is effectively over.
We need to review the final permit and the response to comments document to determine how EPA addressed our concerns.
More to follow.
[Update 4 - the EPA discussion and conclusions on bioaccumulation are based on Dupont's original flawed analysis - this is too technical to go into here. But, the bottom line is that the EPA put a band aid on this huge flaw by a phased process, which requires Dupont to conduct a new ecological risk assessment and additional cleanup if warranted.
EPA directs Dupont to “closely coordinate” this ecological work with USFWS – that is just not good enough given Dupont’s history – lousy work – and economic stake in the outcome of this investigation.
USFWS should be doing the work on their own. The only Dupont role should be to write the check to pay for it.