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EPA Injects Further Delay in Dupont Mercury Cleanup of Pompton Lake

EPA Requests Extension of Environmental Appeals Board Review of Dupont Challenge of EPA Cleanup Plan

Critical Negotiations on Ecological Cleanup Going On Behind Closed Doors

Abuse of Legal Appeals Process

I just received EPA’s August Newsletter for the DuPont/Pompton Site and was disappointed to learn of further significant delays in the cleanup of mercury contaminated sediments in Pompton Lakes.

The parties provided a status update to the board on August 26, 2013 and requested an extension of the motion to stay until February 26, 2014. The motion is under consideration by the appeals board.

Equally significant, it appears that Dupont and EPA are using the Environmental Appeals Board legal appeals process as cover  to negotiate the extent and scope of the cleanup, as well as the technical aspects of the cleanup plans.

During the stay, EPA and DuPont are working together to resolve items raised in the permit appeals. Regarding the technical work, the EPA, New Jersey Department of Environmental Protection (NJDEP), the U.S. Fish and Wildlife Service, and DuPont have conducted conference calls and met in person to discuss the scope of work related to sediment and biota sampling in and around Pompton Lake. Based on those discussions, DuPont submitted the 2013 Sediment Sampling Plan that was approved by the EPA and is now being implemented. In addition, DuPont has submitted eight different scopes of work for tasks associated with their proposed ecological investigation. These scopes of work range from collection and analysis of bird, fish and amphibian tissue to the sampling/analysis of sediment pore water. The EPA has met with DuPont to discuss these scopes of work and is currently reviewing their submissions.

Regarding community engagement, the EPA issued the previous edition of this newsletter in April 2013 and conducted public information sessions in June 2013. In addition, the EPA has met with local officials, local community advisory groups and their representatives and other interested residents to answer questions as well as to respond to requests for information. This outreach has included representatives of the Passaic River Coalition, which the EPA will continue to keep informed as the technical work and settlement process moves forward. The EPA’s next public information session is scheduled for October 3, 2013.

It should be noted that the previously mentioned technical analyses and community engagement activities being undertaken are consistent with the work and activities that would be performed if an appeal had not been filed. 

This is total nonsense.

First of all, these negotiations – on the ecological aspects of the cleanup – are substantive and far broader than the primarily procedural legal issues involved in Dupont’s appeal of the EPA RCRA Corrective Action permit that mandated cleanup and additional sampling.

There are critical negotiations taking place behind closed doors, with no transparency or public review.

Dupont and EPA should be required to publicly present and defend every single detail of the cleanup plans now under negotiation.

This is especially important given the long train of abuses over a 25 year delay in failure to assure a complete cleanup and the scientific errors made by Dupont and EPA on the ecological aspects. Those avoidable errors had to be corrected at the end of the process by US Fish & Wildlife Service.

EPA is engaging in exactly the abuses that have alienated the community and led to bad science – and is replicating the mistakes of the last 25 years – as the community has been shut out of cleanup decisions made by Dupont, NJ DEP and US EPA.

This is a clear abuse of the Environmental Appeals Board legal appeal process.

That process is legal in nature. Policy and scientific decisions about cleanup should not be made there.

The appeal process should not be used as hammer by Dupont to force EPA concession and it is not a permission slip to negotiate a cleanup plan Dupont will support behind closed doors.

EPA should not be using a legal permit appeal process to negotiate the cleanup plan, particularly in the absence of sunlight and public involvement.

Second, EPA newsletters and public information sessions are not the same as formal public review and comment on the details of draft cleanup plans that are being negotiated – and its not even close.

It is totally misleading and manipulate bullshit for EPA to suggest that this “community outreach” is substantive or adequate.

Third, why is EPA seeking further delays?

Delaying the process until early 2014 risks losing another year to cleanup, as toxic contaminants continue to migrate off site and expose wildlife.

And, of course, in March 2014, EPA will announce some kind of deal as a fait accompli, with no opportunity to change it and all in a hurry to meet a spring 2014 construction start.

Last, why is the Passaic River Coalition (PRC) playing along in this private game?

Is PRC providing the community with detailed and documented ongoing negotiations?

Are they serving as an honest broker and seeking community input before taking positions with EPA and the Environmental Appeals Board?

Do you trust PRC to assure that the best science and most aggressive cleanup plan is negotiated? I don’t.

Does PRC even have the legal and scientific expertise to play in this kind of game?

Shame on EPA and PRC.

We want a complete cleanup and we want it now. And we want the plans developed publicly.

[End note: Dupont’s legal challenge is on a alleged procedural defect. EPA could have remedied the procedural flaws that Dupont attacked merely by re-proposing the draft permit cleanup plan. That would have mooted the Dupont appeal to EAB. The fact that EPA didn’t suggests that EPA will map concessions in the cleanup plan they originally proposed.]

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