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EPA Issued Dupont Final RCRA Permit for Cleanup of Mercury in Pompton Lake

December 19th, 2012 1 comment

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.

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NEW JERSEY YET TO COME TO GRIPS WITH POST-SANDY FLOOD RISKS

December 19th, 2012 1 comment

[Update: 12/20/12 – Asbury Park Press editorializes on our assessment: Rush to rebuild could be costly

Base flood elevation maps show how high properties should be built to avoid flood damage.The maps released by FEMA Saturday, however, were drawn prior to Sandy and without using the latest scientific data on climate change and rising sea levels. …
Communities and homeowners alike will be free to challenge FEMA’s new official maps. But they should not wholeheartedly embrace these limited incomplete advisory maps. No one in the state can ignore the evidence of what Sandy has wrought, nor the larger issue of steadily rising ocean waters. Willful ignorance is not a winning strategy for the future.   ~~~~  end update]

update

As Congress debates whether to approve, how much to approve, and what kind of strings to attach to the Obama Administration’s proposed $60 billion special appropriation for Sandy Response, the below national press release is from our friends at PEER

This is not just a federal issue – In addition to the FEMA flaws, see NJ Senator Gordon’s oversight questions of NJ DEP Commissioner Martin regarding NJ DEP flood maps, which he slammed because they date to “the Jimmy Carter era”.

 

NEW JERSEY YET TO COME TO GRIPS WITH POST-SANDY FLOOD RISKS

Coastal Maps Do Not Account for Climate Change Effects; Inland Maps Decades Old

Trenton — As New Jersey struggles to recover from the devastating effects of Hurricane Sandy, it does so without accurate gauges of future flooding risks, according to Public Employees for Environmental Responsibility (PEER).  New federal maps underestimate the risks of coastal flooding while state inland flooding maps have not been updated for at least a generation.

Last week, the Federal Emergency Management Agency (FEMA) updated its 30-year old advisory flood maps for 10 New Jersey counties covering 194 municipalities in Atlantic, Bergen, Burlington, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean and Union Counties.  While these new maps show heightened danger of floods and higher flood levels, these new maps understate the risk because they –

  • Do not take the effects of climate change, such as rising sea levels, into account.  A FEMA policy statement reflects that the agency is still coming to grips with how to quantify and display the effects of climate change on a consistent basis nationally;
  • Do not factor in the horrendous storm surges from extreme weather, as the maps were composed before Hurricane Sandy revised what was known about storm surges; and
  • Are restricted by FEMA regulations that expressly bar consideration of “future conditions” in revising base flood elevation determinations, hampering integration of changing weather patterns.

At the same time, new research from the National Oceanic & Atmospheric Administration (NOAA) indicates that extreme weather events such as Sandy will become more frequent.

“In deciding how to recoup from Sandy, New Jersey is still flying blind,” stated New Jersey PEER Director Bill Wolfe.  “We have little reliable guidance as to whether reconstruction plans will put more people and property in harm’s way.”

State maps for inland flooding from rivers are even less reliable, however.  At a December 3, 2012 hearing, state Senator Gordon (D-Bergen) pinned Department of Environmental Protection (DEP) Commissioner Martin down concerning the failure to update inland flood maps.  Sen. Gordon said he found current DEP maps were 30 years old and based on 40-year old data and exclaimed “We can’t have maps that go back to the Jimmy Carter era.”

Sen. Gordon said he investigated several Bergen County projects currently pending before local planning boards that would make flooding worse.  He has sponsored legislation to mandate update of the maps but DEP appears to oppose the measure based upon fiscal grounds.

“Sandy should have been a wake-up call that our planning must be updated to face harsh, new realities,” Wolfe added.  “It is irresponsible for authorities to bury their heads in the sand, especially sand at risk of being washed away.”

###

View new FEMA flood maps 

See aspirational FEMA policy statement on climate change

Look at new NOAA research on growing extreme weather patterns 

Read the DEP admission about outdated inland flood maps

Review crippling Sandy impact on state drinking water facilities 

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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Chemical Blackmail In Toxic Train Wreck

December 18th, 2012 No comments

Chemical Industry Threatens Plant Shutdowns and Layoffs – Just 2 Days Later, Bridge and Rail Line Reopened Without Safety Reviews or Bridge Replacement

I just learned that the Conrail bridge that caused the toxic train derailment in Paulsboro is open and that trains loaded with chemical cars are again running on the line (see South Jersey Times: Paulsboro trains are back, but how safely?

The SJ Times reports that the line reopened and trains starting running again on Sunday, even before the NTSB “preliminary report” was issued. The NTSB “preliminary report” is a total joke anyway – there are no findings or recommendations, just a less than 1 page description of the accident:

Four trains, the Unified Command said Monday, successfully traversed the bridge between 1:15 p.m. Sunday and 7 a.m. Monday.

The ancient bridge has not been replaced.

There has been no forensic engineering analysis of what caused the accident.

There have been no fines and penalties issued to those that caused this accident.

There have been no chemical safety prevention and emergency planning investigations along the lines that we have requested be conducted by the Coast Guard and US EPA Inspectors General.

The rail line reopening comes just two days after chemical industry spokesmen met with the Unified Command and complained about the pace of cleanup and impacts on their bottom line due to the lengthy rail line closure.

Because of  delays and lengthy closure, which have blocked shipments of products to nearby chemical plants, industry spokesmen threatened to close down NJ chemical plants and lay off workers.

Threats included a possible relocation out of NJ entirely.

On Saturday, December 15, the Philadelphia Inquirer reported on a Friday meeting between industry and the Unified Command:  Paulsboro train wreck backs up businesses along the rail freight line

Two Salem County, N.J., chemical plants that require shipments of vinyl chloride have temporarily shut down as a result of last month’s train derailment in Paulsboro, which spewed the toxic chemical into the air and blocked a critical railroad bridge, a chemical trade association said Friday.

As many as 400 people are employed at the OxyVinyls and PolyOne Corp. plants in Pedrickstown, according to the association. The companies use vinyl chloride to make and distribute products including plastics, pipes, and floor materials. […]

Representatives from about 30 Gloucester County businesses dependent on shipments on the now-closed CSX rail line met Friday with officials from Conrail and the unified command leading the cleanup effort. The companies were eager to learn when trains might again cross the Mantua Creek bridge, where seven cars derailed Nov. 30.

The businesses employ a total of about 5,000 people, a county official said.

Hal Bozarth, NJ's Grandfather of Toxics (Source: Bill Wolfe)

“When the artery is cut, there’s a cascading series of negative events,” said Hal Bozarth, executive director of the Chemistry Council of New Jersey, a trade group whose members include OxyVinyls and PolyOne.

Chemical plants typically stockpile a week’s worth of material, Bozarth said. Sixty trains would ordinarily have passed through Paulsboro in the two weeks since the derailment, he said.

People are waiting for an awful lot of material,” Bozarth said.

Companies that own more than one plant can divert manufacturing when one cannot operate, he said. But any plants that close risk permanently losing product lines, which could give the parent company an excuse to move out of New Jersey.

Heading into the day’s meeting, some expected the rail line to resume operation as early as Monday. There is no alternative rail route, a county official said.

But neither Conrail nor the command, which is led by the Coast Guard, would provide a timeline, said Lisa J. Morina, Gloucester County director of economic development, who attended the meeting. […]

At the meeting, companies expressed concern about how their needs would be prioritized when the CSX line reopens. “Whose product is on what railcar?” Morina asked. “Whose product gets delivered first?

She said the businesses recognized that some were hurting more than others. But Conrail has not communicated its prioritization strategy well, said Steve Chranowski, the Chemistry Council’s director of regulatory affairs.

“These companies are trying to plan. They want to know what’s going on. They were hoping to get answers today. We’re optimistic that no one’s going to have to go off-line,” Morina said.

DuPont has a plant in Pennsville, Salem County, that is drawing on its inventory of materials, company spokesman Nate Pepper said. “It is critical to our business that the rail line to DuPont Chambers Works is reopened as soon as it is safe to do so,” he said.

I think it is outrageous that chemical companies are allowed to pressure government in this way, and threaten to close plants and layoff workers.

The chemical companies are poisoning people, and now they have the audacity to bitch about losing business because of an accident they failed to prevent?

Maybe if the chemical industry and government regulators had been more concerned about lifecycle chemical safety, then this accident might have been prevented.

I find their threats about relocation and plant closure totally outrageous, akin to the NRA holding a pro-gun lobby in Connecticut.

The people of Paulsboro and surrounding towns just dodged a toxic bullet – If there is another accident, someone’s going to jail.

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EPA Rebuild Warnings – Far Too Little, Far Too late

December 18th, 2012 1 comment

Piles of debris tower over a dump truck collect on an empty lot south of Pier Village in Long Branch in mid-November. / Asbury Park Press file photo

I got a call yesterday morning from a reporter in Washington DC.

He had been reading my stuff on Sandy and wanted to know my thoughts on the EPA conference in NJ today warning the public about health risks of rebuilding.

Somewhat baffled, I told him I knew nothing about it and was not made aware of or invited to attend.

I  told him that I did write EPA Regional Administrator Enck over a month ago (on Nov. 6) and strongly urged her to intervene, because the NJ DEP had issued Orders to deregulate rebuilding from DEP permit requirements.

Enck had yet to reply to that letter – or followup letters and emails, so she surely knew I was keenly aware, knowledgeable (my DEP career began in waste management) and actively involved. So, lack of an invitation could not have been an oversight.

I told him that compounding this deregulation was the fact that DEP also issued guidance to streamline and expedite debris removal, so people were likely being exposed to all sorts of emissions from huge debris piles and the 24/7 processing and disposal DEP was “expediting”.

And I told him that on top of all that DEP regulatory stuff, that NJ law had a “right to rebuild”, which was stimulating reckless rebuilding efforts, especially in light of the cheerleading of Governor Christie, who had appointed a “Rebuild Czar” and was advocating quick rebuilding, in time for the 2013 tourist season.

We then moved away from the EPA session, and discussed the pending US Senate Sandy rebuild $60 billion special appropriation bill. I also made him aware of the flawed new FEMA maps and briefed him on Obama’s Executive Order and Task Force and how that contrasted with Governor Christie’s approach.

We ended the call with the expectation of an ongoing conversation as events develop.

So, going through the news this morning, I noted a Star Ledger story on the EPA conference, with the Ledger playing their typical role as government spin amplifier, see: Officials warn Hurricane Sandy victims of mold, asbestos, lead paint.

At a forum Monday to discuss the health impacts the storm can have on New Jerseyans, the representatives said mold, asbestos and lead paint are of particular concern because of all the do-it-yourselfers who don’t know what they’re doing.

“These are issues that can affect workers, residents that are living in homes and tenants, and also volunteers who are graciously donating their time and their energy to clean up their communities,” said Judith Enck, regional administrator for the federal Environmental Protection Agency. “We want to make sure that as the clean up is occurring that there are not problems with exposure to mold, exposure to lead, exposure to asbestos.”

Although I didn’t attend and know only what is in this news report, obviously, I see that EPA warning as far too little and far too late – exposures are occurring on a wide scale with little NJ DEP oversight

So, what is EPA actually doing in the field, in terms of monitoring and enforcement?

What are they doing to make up for DEP’s deregulatory initiatives and huge gaps and loopholes in NJ laws??

EPA was harshly criticized for their response to Katrina, and my gut tells me that EPA and NJ DEP are making similar mistakes in response to Sandy.

The rush to rebuild and the Christie Administration’s efforts to deregulate, expedite, and streamline DEP oversight of rebuilding – including debris removal and waste management –  is obviously compounding problems and causing unknown needless risks to public health and the environment.

I haven’t had the time to adequately research all this and have not been following these issues closely, but for my readers that like to get into the substance, here are three good reports that lay out the environmental, public health, and regulatory issues about debris.

At first blush, it sure looks like Katrina mistakes are being repeated in NJ – illegal waste disposal, inadequate monitoring of stockpile and processing sites, etc:

 

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A Bizarre Set of Priorities – What’s Wrong With This Picture?

December 18th, 2012 No comments

Extreme Weather; Climate Change; Coastal Hazards; DEP De-Regulated Rebuilding; Flawed FEMA Maps; 40 Year Old DEP Flood Maps; Ocean Acidification; Ocean Ecosystem Health; and Fisheries ALL Ignored – while legislation advances on a grocery bag tax

Tom Johnson at NJ Spotlight reports on yesterday’s Senate Environment Committee hearing on proposed legislation designed to “make grocery shopping green”:

In a move to curb plastic bags from littering the landscape and waterways, the Senate Environment and Energy Committee approved a bill (S-812) yesterday that would impose a five-cent surcharge on consumers who fail to bring a reusable bag to their grocery or convenience store.

The bill was “applauded” by environmentalists:

Environmentalists have long advocated such legislation, saying that plastic bags washing up in rivers and the ocean pose a big threat to marine life, such as sea turtles and birds, according to Zach McCue, citizen coordinator for Clean Ocean Action, a group dedicated to protecting coastal waters.

During the organization’s beach cleanup program, Clean Ocean Action picked up more than 8,000 plastic bags in just two days, McCue noted. “It will dramatically reduce the consumption of plastic bags,’’ he told the committee of its proposed bill.

Meanwhile, although you wouldn’t be aware of this by reading news reports in NJ environmental circles, on Friday, a decade or more of advocacy has produced a huge victory: new regulations on setting catch limits for Atlantic Menhaden, a critical forage fish and important link in the food chain. The NY Times reported:

Broad Catch Limits Are Put on an Unglamorous but Essential Fish

By JESS BIDGOOD

BALTIMORE — Regulators on Friday voted to reduce the harvest of Atlantic menhaden by 20 percent, placing a broad catch limit on a critical fishery that has until now been largely unregulated.

A small, oily fish — also called bunker or pogy — the Atlantic menhaden is rarely eaten by humans, and little known outside of coastal circles. But for the Atlantic ecosystem as well as commercial and recreational fishermen, it is an essential fish. The question of its management drew hundreds of fishermen, processors and environmentalists to mobilize for a showdown in a windowless ballroom here.

“Menhaden’s one of the linchpins of the near-shore ecosystem in the East Coast,” said Peter Baker, the director of the Northeast fisheries program for the Pew Environment Group, who said that over the past 30 years, the stock of the fishery has fallen about 90 percent.

The fishery had never been subject to catch limits along the entire Atlantic coast — a rarity in contemporary fishery management — allowing fleets to harvest virtually unlimited amounts from the ocean.

“The Wild West fishery that’s been going on with menhaden — to have a fishery that’s essentially been unregulated, it’s unheard of,” said Darren Saletta, the executive director of the Massachusetts Commercial Striped Bass Association.

Well, let’s get back to the Senate Environment Committeee and NJ environmental circles.

When I got the email heads up about the  bill, I initially thought it was one of those really bad jokes on Superstorm Sandy.

Guess not.

But, Superstorm Sandy has lent new meaning to the term “floatables” – houses, boats, boardwalks, arcades, and cars.

Those COA beach litter cleanups and DEP’s “Barnegat Bay Blitz “look somewhat bizarre right now, don’t they?

Maybe the Senate Environment Committee might want to hear bills related to lessons we hopefully all learned by the wakeup call from Sandy?

We need a “Climate Blitz” more than a Barnegat Bay Blitz (litter pickup).

We need “common sense” coastal hazard, vulnerability, adaptation, and rebuild policies, not “common sense” “regulatory relief under Christie EO #2 and DEP issued waivers of flood hazard, CAFRA and wetlands regulations for rebuilding.

We need a vision, a planning process, and a land use plan for the post Sandy shore, not Governor Christie’s “Economic Development Strategy” replacement for the State Plan and appointed “Rebuild Czar” .

Maybe JOINT ENVIRONMENT Committee hearings could conduct legislative oversight of those issues, because we sure aren’t getting any of that from the Senate Budget & Appropriations Committee hearings.

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