WolfeNotes.com

EPA eliminated numeric 2 ppm ecological cleanup standard for sediments

EPA backed off requirements for Hot Spot removal and Ecological Risk Assessment

Whitewashed USFWS Criticism of Dupont Science & EPA Legal Error that triggered Dupont appeal

[Update: 11/6/14 – Leslie Scott at Suburban Trends writes a good story, see:

EPA releases third cleanup plan for Pompton Lakes

Bill Wolfe, director of New Jersey PEER (Public Employees for Environmental Responsibility), said the EPA is letting DuPont off the hook for potentially millions of dollars in natural resource compensation damages.

He said, “While the EPA is not legally responsible for assessing and collecting natural resource damages … an ERA is a critical scientific study that documents, among other things, the need for additional cleanup and the need to compensate the public for injuries to natural resources. The 2014 version leaves it up to EPA to decide, at some future point, based on future monitoring and sampling, whether an ERA is required.”

Wolfe added that DuPont has had the benefit of closed-door negotiations that allowed a reduced cleanup size, delayed the cleanup by two years, and changed the cleanup standards to be “flawed and lax.”

Wolfe said abandoning the older standard “puts more control over cleanup in DuPont’s hands, which raises oversight and enforcement concerns.”  –   – end update

[More Updates below]

US EPA today issued the long overdue revised draft permit for the Dupont cleanup of Pompton Lakes sediments, upland portions of the lakefront, and downriver portions contaminated by toxic mercury.

I issued the following statement, because press seem in a big hurry to do the 24 hour news cycle superficial review. It will take me awhile to get this all documented and linked correctly. Plenty of time, the public hearing is not until *December 8, and comment period ends on December 18, 2014

NJ PEER issued the following statement on the draft RCRA Corrective Action permit EPA released on Oct. 30, 2014:

We are pleased that EPA has finally re-issued a draft Dupont RCRA permit that would require cleanup of a portion of Pompton Lake sediments and downstream areas that Dupont poisoned with toxic mercury and other hazardous substances including lead, and selenium. The permit and cleanup are along overdue

We have 6 specific concerns, based on preliminary review of the draft permit:

1) EPA whitewashed controversial history – USFWS critical review drove expansion of original draft cleanup plan

Before we get to the merits, briefly, we need to summarize the permit chronology:

The EPA permit documents ignore this history which shows two important things: a) that Dupont’s science was flawed, according to USFWS; and b) EPA made a huge legal error in expanding the permit from draft to final form.

EPA used the SAB process to negotiate new cleanup plans behind closed doors. This was not a transparent process subject to public review and input.

Accordingly, we will closely scrutinize the changes made between the final 2012 permit and the draft 2014 version.

While we have not yet conducted that detailed review, based on preliminary review  we have a few troubling concerns

2. The cleanup is less stringent than EPA proposed in 2012 permit that was challenged by Dupont

Here is what the 2012 version required, according to an EPA 12/19/12 press release (boldface mine)

“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”

The scientific basis for that cleanup was stated in the 2012 permit as follows: (boldface mine):

3. EPA abandoned the 2 ppm cleanup standard – this puts more control over cleanup in Dupont’s hands and which raises oversight and enforcement concerns

The 2012 version was based on a numeric and enforceable 2 ppm “site specific ecological cleanup criteria”.

That 2 ppm cleanup standard has been eliminated in the 2014 version and replaced by a “qualitative” approach that lacks effective enforcement.

4. The Dupont proposed upland soil cleanup standard is flawed and not protective

Although EPA rejected a numeric standard for lake sediment cleanup, EPA has allowed Dupont to cleanup upland soils to a flawed and lax standard of 20.5 ppm. That Dupont derived standard is not a promulgated applicable standard, just like the sediment 2 ppm standard in the 2012 permit. Dupont can’t have it both ways – if EPA can’t enforce the 2 ppm sediment standard because it was not a promulgated applicable standard, then they can’t be allowed to use their own derived 20.5 ppm soil cleanup standard.

That is 10 times higher than the original 2012 sediment cleanup standard o 2 ppm – and based on questionable assumptions about soils, methylization of mercury, and bio-accumulation.

[Update – here is the flawed basis for deriving the 20.5 ppm soil standard, from the June 2013 Onsite Soils Corrective Measures Study:

 

5. Dupont has benefitted  by delay and closed door negotiations

Dupont has benefitted from challenging the 2012 permit – these benefits include:

6. EPA letting Dupont off the hook for Natural Resource Damages (NRD)

EPA backed away from the 2012 permit condition that required that Dupont conducting an Ecological Risk Assessment (ERA).

While EPA is not legally responsible for assessing and collecting natural resource damages (that is USFWS’ and NJ DEP’s job), an ERA is a critical scientific study that documents, among other things, the need for additional cleanup and the need to compensate the public for injuries to natural resources.

EPA should be working with USFWS – who indicated back in Feb 2012 that they were considering a NRD and talking to Dupont. Here’s what USFWS consultation stated:

“The Service does not believe that the proposed remedial action, as currently planned, will completely address historical releases nor be sufficient to protect again future injury to Federal Trust resources from residual contamination originating from the PLW….  The Service may consider performing a Natural Resource Damage Assessment (NRDA) to evaluate injury to Trust resources from historical exposure and residual contamination following the proposed remedial action, and we have initiated contact with the Applicant in that regard.” (emphasis mine)

The 2014 version leaves it up to EPA to decide at some future point, based on future monitoring and sampling, whether an ERA is required.

Here is the loophole – failure to sample fish, birds and bats that bioaccumulate the highest levels of mercury:

Select exposure media included sediment, pore water, larval midge tissue, adult midge tissue, and spider tissue; broader ranging receptors evaluated in the 2013 Ecological Investigation, including fish, birds, and mammals were not included in the evaluation due to the greater spatial range of these receptors and the uncertainty in attributing exposure to specific sampling stations. 

This is a formula for letting Dupont off the hook for potentially millions of dollars in NRD damages.

Look at the species sampled to assess bioaccumulation – midge and spider:

 

[Update: 10/31/14 – We will need to remind USFWS and US EPA about their own science on this point:

An inter-agency committee (NJDEP, USEPA, and USFWS) was assembled to derive New Jersey-specific wildlife water quality criteria for DDT and its metabolites, mercury, and PCBs that would minimize adverse effects of these pollutants on the bald eagle and peregrine falcon. The dwarf wedgemussel was not included in the calculation of water quality criteria for the protection of wildlife because of its lower trophic level, the danger of contaminant biomagnification should be less than with a higher trophic level organism in the food chain. As indicated in the inter-agency committee report on derivation of the wildlife criteria, the State’s aquatic life-based criteria are intended to provide the necessary level of protection for these mussels. Recognizing that the GLWQI criteria were developed using information gathered from the Great Lakes, which may not be directly transferable for use in New Jersey for several reasons (see Derivation of New Jersey-Specific Wildlife Values as Surface Water Quality Criteria for: PCBs, DDT, and Mercury, July 2001 at www.state.nj.us/dep/wmm/bfbm/sgwqt.html), the inter-agency committee derived New Jersey-specific criteria. The bald eagle, peregrine falcon, and osprey were selected as representative species for calculation of New Jersey-specific Wildlife Values. The bald eagle and peregrine falcon are classified as endangered species, and the osprey a threatened species on New Jersey’s threatened and endangered wildlife list. Wildlife Values were calculated for each of these species using an equation developed under the GLWQI (see below). The majority of the input and species-specific exposure parameters used to derive the criteria for PCBs, DDT and its metabolites, and mercury were based on the GLWQI. These included test dose, uncertainty factors, amount of water and food consumed, and the average weight of the animals. Bioaccumulation factors (BAFs) were based on work subsequent to the GLWQI and the use of New Jersey-specific values for dissolved and particulate organic carbon.

 

 

Sen. Bob Smith (D-Middlesex) — chairman of the Senate Environment and Energy Committee — has perhaps been the strongest proponent of open-space preservation. He often calls the attempt to enact a stable source of funding the holy grail of the conservation movement. ~~~ NJ Spotlight (April 8, 2014)

Senator Smith and the Keep it Green Coalition (KIG), by their own rhetoric, believe that they are on a righteous quest, for the Holy Grail: a dedicated source of funding for open space acquisitions.

In pursuit of the Grail, like all quests, their singular mythical focus seems oblivious to collateral damage and impervious to the persuasive force of reason and facts.

It didn’t used to be this way: planning and regulation complemented open space acquisition. But how Smith and KIG have chosen to finance open space has forced competition and conflict, creating collateral damage instead of mutual support.

Tom Gilmore, a gentleman and former head of NJ Audubon once said that conservation is a 3 legged stool: planning and regulation; acquisition; and private land stewardship.

Shamefully, his voice is ignored by his successors as the planning and regulatory leg is amputated at the knee; the stewardship leg is gangrenous from “mitigation” and logging scams; and the one legged acquisition leg bulges and can’t support the stool.

That collateral damage is large – it includes:

1) deep cuts to critical environmental programs;

2) significant layoffs of DEP professionals;

3) further erosion of DEP as an effective public institution;

4) reinforcement of private property market values and anti-tax and anti-government sentiments;

5) empowerment of a conservation model and conservation groups that embrace voluntary private individual market transactions (as opposed to citizens engaged in the public sphere); quiet compromise (as opposed to political struggle in the public sphere); private negotiation (as opposed to public planning process); and corporate values as operating principles.

All these negatives are empowered and given millions of dollars of public resources, while at the same time undermining the activist model and starving grass roots groups for resources.

If you think this is hyperbolic or ideological, and want examples of how this actually occurs, just look at the recent massive Penn Foundation grant or the divisive Delaware Watergap “mitigation” deal. Or consider the fact that the main KIG groups initially OPPOSED a Highlands Act in favor of the voluntary and consensus based toothless State Plan and Green Acres acquisitions (which depend on the kindness of “willing sellers” – which are random – and therefore make it impossible to regionally plan based on landscape value or land use objectives);

6) perpetuation of structural environmental injustice and anti-urban bias and policies built into the current Green Acres, Farmland Preservation, Blue Acres,  and Historic Preservation programs;

For an example of these kind of destructive collateral damages,  I note that the rob Peter to pay Paul open space diversion scheme has very similar dynamics to Charter Schools. It causes a divisive conflict in a community; brute competition for resources; privatization of the public sphere; and promotion and exacerbation of inequality; and

7) an ugly a divisive battle that splits an already fractious and increasingly anemic “environmental community”.

The divisive politics is a huge strategic blunder, coming at a time when austerity is a discredited approach and anti-tax sentiment is waning (e.g.  see recent steps to increase the gas tax to fund TTF). Even worse, strategically, the divisiveness comes  at precisely the critical moment when Movement Politics are necessary to build power to engage climate change.

At least when Don Quixote quested and tilted at windmills, there was no collateral damage. He was a Knight Errant in his own mind.

So, in consideration of the magnitude of this huge collateral damage, my sense is that instead of the medieval Holy Grail metaphor,  a more apt frame would be Melville’s White Whale.

Chris Hedges explains:

The object of the hunt is a massive white whale, Moby Dick, which in a previous encounter maimed the ship’s captain, Ahab, by dismembering one of his legs. The self-destructive fury of the quest, much like that of the one we are on, assures the Pequod’s destruction. And those on the ship, on some level, know they are doomed—just as many of us know that a consumer culture based on corporate profit, limitless exploitation and the continued extraction of fossil fuels is doomed.

“If I had been downright honest with myself,” Ishmael admits, “I would have seen very plainly in my heart that I did but half fancy being committed this way to so long a voyage, without once laying my eyes on the man who was to be the absolute dictator of it, so soon as the ship sailed out upon the open sea. But when a man suspects any wrong, it sometimes happens that if he be already involved in the matter, he insensibly strives to cover up his suspicions even from himself. And much this way it was with me. I said nothing, and tried to think nothing.”

We think KIG members know, if they’d be “downright honest with themselves“, that they are destructively chasing the White Whale.

But, like Ishmael, while they “suspect wrong“, they are so “involved in the matter” and “cover up” and “say nothing” and “try to think nothing“.

Our argument made, we close with regrets, from the mouth of Ahab:

and then, the madness, the frenzy, the boiling blood and the smoking brow, with which, for a thousand lowerings old Ahab has furiously, foamingly chased his prey—more a demon than a man!—aye, aye! what a forty years’ fool—fool—old fool, has old Ahab been! Why this strife of the chase? why weary, and palsy the arm at the oar, and the iron, and the lance? how the richer or better is Ahab now? 

[* I’ll even offer a personal experience. When I worked for Tim Dillingham as Sierra Club Policy Director in the mid 1990’s, I lived in Hopewell. As the Hopewell sewer battle began, I tried to get Sierra involved in the citizen’s campaign. Tim directed me NOT to work on Hopewell issues. I was dumfounded: why would he not want to get into the most important land use battle then going on in the State? I later learned that Tim was responding to Candy Ashmum, who he had recently installed on Sierra’s Board (known as ExCom). Candy felt that Hopewell would undermine and discredit her beloved State Plan and block a compromise to preserve the west side of Scotch Road in exchange for the Merrill Lynch campus and sewer plan. They later tried to pull the same deal on Berwind – which I was trying to block with DEP regulatory sticks –  to compromise on that development in exchange for preserving land across the street on the south side of Cherry Valley Road. So now do you see how the green weenie politics work?

* When Tim left Sierra to join NJCF, I immediately jumped into the Hopewell battle, by holding a press conference with Bill Neil of Audubon and Leslie Kramer at the Merrill Lynch site on Scotch Road. ]

The Bergen Record editorialized to warn voters to “read the fine print”.

I’ve been urging that for months now.

So today we provide that fine print and explain another reason – buried in the fine print – to vote NO on the Open Space Ballot question.

For the last 2 legislative sessions, there has been a huge controversial battle over a bill that, among other things, would allow commercial logging on State lands and State forests, including applications of herbicides, and destruction of wetlands, stream buffers, habitat, and recreational uses with virtually no regulatory and little public oversight.

The bill would do that under the guise of one word: stewardship.

Stewardship is a wonderful concept, but it is an undefined and vague term, with no regulatory, programmatic, or legal meaning, so the devil is in the details.

There are strong differences in interpretation of what the word means – and what it should include but does not according to conservation groups who support the concept, as well as the Farm Bureau, DEP, and private professional foresters who will actually apply the term in the field.

Repeat: there are no laws, regulations, policies, or Guidance documents that describe exactly what “stewardship” is and how it is regulated to prevent harms to water resources; forest integrity; fish and wildlife; or competing public uses of State lands, like hiking, fishing and birding.

I’ve testified to the legislature and written about the forest stewardship controversy  numerous time here, and so has NJ Spotlight, see:

• CONTROVERSIAL BILL COULD PERMIT COMMERCIAL LOGGING OF STATE FORESTS

So, what is the relationship between a commercial logging “stewardship” bill and the Open Space ballot question?

The answer is simple: that same one vague word: stewardship.

So, read the fine print and decide whether you want open space preserved lands to be used for commercial logging.

Here is the fine print from SCR84[SCS]: note the word “stewardship” – that term has NEVER BEFORE BEEN IN THE OPEN SPACE PROGRAM:

The amount annually credited pursuant to this subparagraph shall be dedicated and shall be appropriated from time to time by the Legislature only for: providing funding, including loans or grants,  for the preservation, including acquisition, development, and stewardship, of lands for recreation and conservation purposes, including lands that protect water supplies and lands that have incurred flood or storm damage or are likely to do so, or that may buffer or protect other properties from flood or storm damage; providing funding, including loans or grants, for the preservation and stewardship of land for agricultural or horticultural use and production; providing funding, including loans or grants for historic preservation; paying administrative costs associated with each of those efforts; paying or financing the cost of water quality point and nonpoint source pollution monitoring, watershed based water resource planning and management, and nonpoint source pollution prevention projects; paying or financing costs incurred by the State for the remediation of discharges of hazardous substances, which costs may include performing necessary operation and maintenance activities relating to remedial actions and costs incurred for providing alternative sources of public or private water supplies, when a water supply has been, or is suspected of being, contaminated by a hazardous substance discharge; providing funding, including loans or grants, for the upgrade, replacement, or closure of underground storage tanks that store or were used to store hazardous substances, and for the costs of remediating any discharge therefrom; and providing funding, including loans and grants, for the costs of the remediation of discharges of hazardous substances, which costs may include costs incurred for providing alternative sources of public or private water supplies, when a water supply has been, or is suspected of being, contaminated by  hazardous substance discharge. 

As Threats To Ocean Ecosystems And Coastal Resources Increase, NJ Seeks To Ramp Up Science

The Senate Environment Committee released a bill today that would create the position of State Oceanographer in Rutgers University, see: S2491 (Smith, D-Middlesex). 

The State Oceanographer would become a member of the Coastal and Ocean Protection Council, a body created by a 2007 bill signed into law by Governor Corzine in January 2008, see P.L. 2007, c. 288.

You can listen to the testimony here – the bill is the first one up. Josh Kohut, Associate Professor at the Center for Ocean Observing Leadership at Rutgers informed the Committee of lots of the cutting edge oceanographic work being done at Rutgers.

The bill is the natural evolution of more than 150 years of history, since the Morill Land Grant Act of 1862, and would make NJ the first state to name a State Oceanographer. The purpose of the land-grant colleges was:

without excluding other scientific and classical studies and including military tactic, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.^[6]

[Update: Holy Cow! How could Rutgers testimony & Senators fail to note this? Rutgers & Senator Smith and Bateman were at the vent!

• N.J. Legislature Honors Rutgers on the 150th Anniversary of its Designation as the State’s Land-Grant Institution – end update]

Since then, NJ has named a State Geologist, State Forester, and State Climatologist to bring science to public policy and natural resource management decisions and technical assistance and outreach to professional practitioners and government officials.

I testified in support of the bill.

Remarkably, I had to open my testimony by explaining this history to Senator Codey, former Governor Codey, as to why Rutgers, as NJ’s Morrill land Grant outreach institution,  was the appropriate University for the State Oceanographer. Codey had objected to naming Rutgers in the bill.

Rutgers folks thanked me for that.

• The Demise of Ocean Protection Council and Ecosystem Management

My testimony also laid out the history of the Coastal and Ocean Protection Council (COPC), an initiative that I developed with my friend Benson Chiles and Senator Smith back in early 2007.

The intent of the COPC was to bring the best available science into DEP coastal and ocean policy and single purpose regulatory and management “silos” (programs), and to promote ecosystem based management (EBM) as the framework for multiple DEP programs.

The COPC law did 3 innovative things: 1) established a Council with essentially advisory powers (Smith would not support regulatory powers); 2) expanded DEP’s organic powers Act to authorize reliance on ecosystem based management as the basis for relevant DEP “plans and programs”; and 3) appropriated $75,000 in start up funds.

Unfortunately, the law (the COPC and EBM) were ignored by Gov. Corzine’s DEP. No appointments to the Council were made and it never met. The $75,000 appropriation was diverted to other purposes in the DEP budget.

[* correction – BC advises that there were some Corzine nominees confirmed by the Senate at the end of the Corzine term. See this for nominees. Apologies for that error.]

Worse, Gov. Christie’s Executive Order #15 resulted in a recommendation by DEP Commissioner Martin to abolish the Council. So, Corzine DEP neglect turned into Christie hostility.

• Troubling Questions About Politicization of Science and Scientific Integrity

In addition, because improved scientific support was one of the the primary reasons for the COPC/EBM law we wrote, I outlined troubling issues raised by the bill with respect to the politicization of science and scientific integrity that the State Oceanographer was sure to face.

Specifically, I noted 2 recent cases of abuse involving Rutgers scientists.

The first involved attempts by high level Christie DEP officials to intimidate a scientist: to pressure him to alter his data, findings, and recommendations; to not publish his work; to take his work down from a Rutgers website; to attack his reputation and credibility; and to threaten to defund his work – and all just because his research contradicted Christie DEP policies.

I am pleased to say that the scientist held his ground and was backed by Rutgers administrators.

The second case involves the DEP Science Advisory Board (SAB), Chaired by a Rutgers scientist (read the whole story with documents here: NEW JERSEY HANDS DRINKING WATER SAFEGUARDS TO DUPONT.

The most recent SAB Report recommended a chemical risk screening methodology developed by the Dupont Corporation. The transmittal letter to DEP Commissioner Martin from the SAB noted that the Report allowed for “significant input” by a Dupont representative on the SAB, John Gannon.

That is a gross breach of scientific ethics and presents a conflict of interest and scientific bias.

In fact, it violated DEP’s own SAB ethics Guidelines.

But, it is deeply doubling that no one on the SAB, including the Rutgers Chair who transmitted the report and noted Dupont’s involvement, stood up to object to these unethical practices and blew the whistle to stop them.  Obviously, political intimidation very likely was involved, especially in light of case #1, which sent a message in Rutgers and elsewhere.

I explained to the Committee that these types of potential for abuse cries out for amendments to shield the COPC scientists and State Oceanographer from political pressure.

I suggested enhanced transparency, perhaps an annual public Report that outlined the State Oceanographer’s work would help.

• Need for Leadership

I bluntly told the Committee that the State Oceanographer has to be more aggressive in injecting the science into policy than the State Climatologist, who has mostly sat on the sidelines as Gov. Christie has dismantled climate programs, diverted over $1 billion in climate funds, and denied the implications of climante science.

I also suggested that if the State Oceanographer would be more than a ceremonial post, then additional resources and mandates to DEP were needed.

I requested an amendment to restore  $75,000 initial funding of the COPC and some kind of mechanisms to force appointments and incorporation of EBM in DEP policy and regulations.

Chairman Smith said the COPC appointments and appropriation would kill the bill, but he did support the recommendation for an annual Report and the bill was amended accordingly.

The bill was released without recommendation, due to Senator Codey’s inexplicable objection to naming Rutgers.

This is a good bill and we urge your support, especially as climate change – ocean acidification, ocean warming, overfishing, pollution, habitat destruction, coastal storms, etc – vastly increases the importance of the ocean.

Star Ledger a “Reluctant” Yes

Word beginning to get out on damaging impacts of  Open Space diversion scheme

We’ve had some very important recent developments on the open space diversion debate –

Today, the Bergen Record editorialized and urged a NO vote, see: Public Question No. 2

It may seem obvious to support dedicating money to preserve land in the nation’s most congested state, but voters really have to consider the fine print on this one.

The dedicated money from the corporate tax now is used primarily to improve water quality, to clean polluted sites and to remove underground tanks. The proposed amendment would redirect most of that money to preserve open space, farmland and historic sites. The amendment would raise the dedicated portion of the corporate business tax to 6 percent in 2019.

Critics, including some environmental groups, fear that the redirection would hurt the state’s ongoing water quality and cleanup programs.

As dwellers in the fine print, we’re proud to be the Record’s unnamed critics and environmental groups.

It’s unfortunate that the Record editorial writers failed to credit the source of the arguments they base their editorial on, but those involved in the debate know where this criticism is coming from.

Additionally, our arguments influenced – but did not prevail – as the the Star Ledger editorialized on Friday with a “reluctant yes”, see: A reluctant yes on open space ballot question:

Under current law, 4 percent of revenue generated by the corporate business tax is constitutionally dedicated to a menu of green causes, from removing underground storage tanks to filtering diesel emissions from school buses.

This amendment redirects much of that money to open space purchases instead. That will cause collateral damage. It could weaken water protections and lead to spending cuts at state parks. It might result in layoffs in the Department of Environmental Protection.

We urge folks to read the fine print.

Don’t cannibalize and hurt water quality, toxic site cleanup, and State Parks programs to buy land.

There are alternatives.