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DEP Denies Approval Of Groundwater Cleanup Waiver That EPA Claimed Was Approved On April 14

After Criticism, DEP Now Claims That Polluter Voluntarily Approved Their Own Groundwater “CEA” Waiver

So, Just Who Approved What and When Did They Do So?

On April 26, 2021, Pat Seppi of US EPA sent an email to the Milford NJ “Community Advisory Group” (CAG) for the Curtis Specialty Papers Superfund cleanup. The email announced the Agenda for the CAG meeting that night.

I was surprised by the fact that the Agenda, at the very bottom, announced a fait accompli:

PFAS IN GROUNDWATER – CEA/WRA for PFAS approved April 14, 2021

This PFAS CEA approval is a stunning claim for a number of reasons:

1) PFAS have gotten incredible public and media scrutiny, particularly in NJ;

2) a CEA is a significant regulatory document (“institutional control”), because under a CEA “constituent standards and designated uses are suspended in accordance with N.J.A.C. 7:9C-1.6″ and a CEA almost always leads to a “passive remedy”, which is a bureaucratic euphemism for no cleanup.

3) DEP claims to be a national leader in setting PFAS cleanup standards and has been praised repeatedly by media and environmental groups;

4) this is a Superfund site along the Congressionally designated “Wild and Scenic” Delaware River – upstream of public water supply intakes – with substantial potential adverse natural resource and drinking water impacts; and

5) the public raised specific concerns about likely PFAS contamination during the Superfund cleanup process and those concerns were ignored by EPA and DEP.

How could something this significant and controversial be completely ignored and relegated to a bullet item on a meeting agenda?

I immediately sent a email to Pat Seppi of EPA asking basic questions about PFAS in groundwater and the approval of the CEA. I wrote about all this on April 26

Pat did not reply, but instead I got an email from Gwen Zervas of DEP on April 29:

Hello Bill,

EPA asked me to respond to your email since the PFAS CEA was established by DEP.

Classification Exception Areas are established when ground water exceeds the applicable standards.  PFAS was detected above NJ standards at the Curtis site, therefore a CEA and well restriction area were established.  No decisions have been made regarding any remedial action requirements to address PFAS; the establishment of a CEA and WRA occur when contamination exceeding standards has been identified.

A full investigation of surface water and whether PFAS from the Curtis site has been discharged to the Delaware River has not yet been conducted.

Let’s repeat what DEP wrote on April 29: “since the PFAS CEA was established by DEP.”

Because the DEP email was at best vague and misleading, I wrote back asking for clarification and a full response to the specific questions I asked (you can read my specific questions here).

Gwen Zervas of DEP responded by email of May 4, 2021.

DEP now denies they issued the CEA that US EPA said they “approved” on April 14 and that DEP, just days before, themselves said they issued! (i.e. “since the PFAS CEA was established by DEP.”).

Here’s what DEP now claims: (emphases mine):

Hi Bill,

I hope the information below answers all your questions.

The CEA/WRA for PFAS was proposed by the responsible parties voluntarily.  Per NJ’s Tech Regs (NJAC 7:26E-4.3(a)7) a CEA proposal must be proposed as part of the Remedial Investigation Report.  The remedial investigation for PFAS is not complete at this site, however the responsible parties proposed it at this point in the process to be protective.  In accordance with NJAC 7:26E-5.1(b)1, a remedial action is required when “The concentration of any contaminant exceeds any applicable remediation standard;”.  The establishment of a CEA/WRA does not mean a remedial action is not required; rather CEAs and WRAs are institutional controls that are put in place until such time the standards are met.  When a remediation standard is exceeded, a remedial action is required per NJAC 7:26E; establishment of a CEA/WRA does not negate that requirement.

Please note that the DEP has mapped the CEA/WRA in our GIS system, but letters have not been sent out to the local officials yet regarding the CEA/WRA but will be soon.  Notification of the CEA/WRA was done by the responsible parties in accordance with DEP requirements.

As you know, the Curtis Specialty Papers site is a CERCLA site and EPA is the lead regulatory agency; DEP is the support agency.  The remedial investigation and subsequent remedy selected at the site did not address PFAS because PFAS were emerging contaminants with no standards at the time the remedial investigation was conducted.  Recently, the responsible party has conducted two rounds of ground water sampling for PFAS and based on that data proposed a CEA/WRA for the site.  The PFAS contamination has not been delineated yet.  Future actions for PFAS, including a remedial investigation (including an ecological evaluation), feasibility study, Proposed Plan and Record of Decision should be conducted under EPA oversight since EPA is the lead regulatory agency, with DEP as the support regulatory agency.

Gwen

Translation: As soon as DEP faced scrutiny and criticism about the CEA, they changed their story.

After writing that DEP had “issued the CEA”, just days later DEP now claims that the CEA was proposed by the polluter “voluntarily”.

Think about that: the polluter voluntarily proposed an “institutional control” that effectively amounts to a waiver oof groundwater cleanup requirements! And DEP thinks that this is intended to “be protective”! Protective of what? Corporate profits? And EPA reports to the public that the CEA was approved. Nothing to see here – move on!

DEP’s own regulations do not provide for a polluter to issue their own CEA – a fact that DEP admits. Issuance of a CEA is DEP’s regulatory job, a document that is required to be based on science and law. A “voluntary CEA” amounts to privatization of DEP’s own regulations.

DEP claims that a CEA dos not waive cleanup requirements, but I specifically asked DEP to identity a single case where a CEA was issued and DEP imposed mandatory active groundwater cleanup requirements (virtually all CEA sites have “passive” cleanups, which means just leave the pollution in place and monitor it). DEP did not respond to that question. So, in practice, a CEA effectively all out always waives groundwater cleanup requirements.

DEP admits that there is no scientific or technical basis for the CEA.

DEP falsely claims that:

“The remedial investigation and subsequent remedy selected at the site did not address PFAS because PFAS were emerging contaminants with no standards at the time the remedial investigation was conducted.”

DEP fails to note that public comments on the EPA Superfund Record of Decision specifically raised the likely presence of PFAS and that the scope of EPAs’ remedial investigation ad remedy selection are not limited to hazardous substances with state promulgated standards.

DEP’s misleading and false excuse contradicts EPA’s own response to the public comment on PFAS in the Record Of Decision (see prior post’s excerpt of EPA Response in Appendix 5C of the ROD)

In response to my questions, DEP openly admits that the polluter is in control of the process, particularly regarding public involvement and notification.

In response to my criticisms, DEP now admits that there is no public participation in the CEA or  groundwater cleanup.

And to top it all off, DEP punts and points the bureaucratic finger at US EPA, who they correctly note is in charge of the Superfund cleanup.

Ironic, because this whole fiasco began when EPA wrote that DEP had “approved” the CEA on April 14 – a claim that now turns out to be false.

Maybe Jon Hurdle of NJ Spotlight – who has written many puff pieces praising DEP’s science, regulation, and policy o PFAS – can get to the bottom of this.

(but I’m betting that Mr. Hurdle does not cover this story, because it would contradict his narrative of fluff praise of DEP on PFAS leadership. The facts here clearly show DEP letting a corporate polluter off the hook for PFAS cleanup and keeping the issue quiet, and then, when called out on that, pointing the finger at EPA.

I have no explanation for the failure of Riverkeeper and other environmental groups.)