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DEP hands off a major statewide responsibility to local government

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 Community & Worker Right-to-Know Contradicts Gov. Christie’s Agenda

Yesterday the DEP held a press event in an abandoned building in Camden to announce a Pilot Program regarding safety and health risks to firefighters and emergency responders caused by chemicals and other dangerous materials stored in those buildings.

Aside from the fact that DEP used deeply offensive military metaphors to describe the program (i.e. “Boots on the Ground“) and – by focusing exclusively on risks to firefighters and emergency responders – failed to even mention environmental justice and community concerns, the actual results from the Pilot Program revealed significant health and safety risks.

The DEP Pilot Program not only documented significant risks at 31 abandoned buildings.

It exposed gaping loopholes in the existing statewide protection program that NJ DEP implements under the 1983 “Worker and Community Right to Know Act” – here are the DEP regulations for that program.

The Camden Pilot found buildings and dangerous materials that are not regulated under the current RTK program. These same kind of abandoned buildings and risks to the community and emergency responders are found in hundreds of NJ’s older industrial towns and cities.

Those risk to the community and emergency responders have been managed for 30 years on a statewide basis under the current RTK program.

But, curiously, DEP made no mention of the longstanding statewide RTK program.

No press asked about the RTK program during the event either.

This was likely because DEP would not allow questions from press during the press event.

I attended the event and DEP managers saw me chomping at the bit, ready to ask detailed and informed critical questions that would shine light on these issues. So, to prevent that, they took the unusual step of simply shutting down the event to questions after they finished speaking. Instead, DEP allowed only 1 on 1 questions inside the building, which made it impossible for me to educate media by asking an informed tough question.

This 1 on 1 interview tactic enabled DEP to get exactly what they wanted: the typical stenography of the mainstream media: favorable and uncritical press coverage (see this and this ). I spoke to Taunya English, reporter for WHYY who was the only one to mention the RTK program, but she  allowed DEP’s Deputy Commissioner Kropp to dismiss my concerns in a comment that actually proves my point: there are LOOPHOLES in the RTK program! It needs to be expanded to address the same risks posed by abandoned buildings!

But  when I later questioned DEP about how the Camden Pilot related to the existing RTK program during the one on one interviews, DEP expressed no interest in modifying, funding, and expanding the current statewide RTK program to close the loopholes and reduce the risks documented by the Camden Pilot Project. 

Nor would DEP identify any allocated funding or staff resources (i.e. actual “boots on the ground”) for funding a Camden program or a statewide program. 

So, why is that?

Let me explain why this DEP event was more media stunt than an actual effort to develop a policy or program.

First of all, the primary goals of the RTK law are to protect “workers” and the “community” from risks from chemicals via a statewide regulatory program.

Here are the 1983 legislative findings – this is forbidden territory that the Christie DEP just doesn’t want to go there. They won’t even talk about any of the legislative objectives highlighted in boldface from the law itself:

DEP Scientists Quietly Classify Groundwater Conditions as “Extremely Dry”

Where Are DEP Mandatory Water Use Restrictions & Conservation Measures?

[Update #2 – Imagine that, the groundwater conditions just happen to be improving, and DEP’s latest Aug 5 assessment goes out of tis way to show arrows pointing that out (something I don’t recall ever seeing)

I think I’ll file OPRA’s to get the underlying data and analysis supporting these assessments – Isn’t my skepticism of these “coincidental” improvements an indicator of DEP’s loss of scientific credibility? That’s what happens when you fudge the data analysis. end update#2]

Update: most recent July 29 DEP assessment – more regions of the state with severe dry stream flow and groundwater conditions – southwestern NJ “improves” somewhat. I would love to see the technical explanation for that – I suspect manipulation in response to the original post.  New assessments should be posted on Monday August 6.  end update]

DEP scientists recently classified groundwater conditions in southwestern NJ as “extremely dry” the equivalent of a drought “emergency” for areas reliant on groundwater (see green area in map above for impacted area).

I have some question for DEP based on that science – 8 specific questions.

1. Are residents in Mercer, Burlington, Camden, Cumberland, Gloucester and Salem Counties aware of that serious problem?

2. Why is drought status “normal” if groundwater conditions are “extremely dry”? (and rainfall and stream flow are well below normal too).

3. Have mandatory water use restrictions and water conservation measures been imposed for businesses and homes that use groundwater? If not, why not?

Or will people find out only after wells start to run dry?

4. Has DEP completely abdicated its responsibilities to plan for water supplies and to take the lead in drought management, as mandated by the NJ Water Supply Management Act? That law mandates:

The department shall prepare and adopt the New Jersey Statewide Water Supply Plan, which plan shall be revised and updated at least once every five years.

[Note: If case DEP forgot or needs guidance, see this:

NJSA 58:lA-2. Legislative findings and declarations.

The Legislature finds and declares that the water resources of the State are public assets ofthe State held in trust for its citizens and are essential to the health, safety, economic welfare, recreational and aesthetic enjoyment, and general welfare, of the people of New Jersey; that ownership ofthese assets is in the State as trustee ofthe people; that because some areas within the State do not have enough water to meet their current needs and provide an adequate margin of safety, the water resources of the State and any water brought into the State must be planned for and managed as a common resource from which the requirements ofthe several regions and localities in the State shall be met; that the present regulatory system for these water resources is ineffective and counterproductive; that it is necessary to insure that within each basin there exist adequate water supplies to accommodate present and future needs; that to ensure an adequate supply and quality of water for citizens of the State, both present and future, and to protect the natural environment of the waterways of the State, it is necessary that the State, through its Department of Environmental Protection, have the power to manage the water supply by adopting a uniform water diversion permit system and fee schedule, a monitoring, inspection and enforcement program, a program to study and manage the State’s water resources and plan for emergencies and future water needs, and regulations to manage the waters of the State during water supply and water quality emergencies. 

5. Or has DEP privatized those responsibilities and functions, allowing private water companies to take charge, as in the recent Monmouth County disaster and water emergency caused by a major pipeline break?

6. Or has DEP delegated those responsibilities to local and county government – or outsourced them to corporate dominated private “sustainability” cover groups –  as they did in the Monmouth emergency? (see DEP website for the highly unusual reliance on County government and private water company). Does DEP think posting a county press release on the DEP website satisfies their responsibility under the Act?

July 1, 2012	State of Emergency Still in Effect in Monmouth County; Strict water conservation measures remain in effect; Boil water advisory reduced to 4 towns; all outdoor use banned (Monmouth County Press Release)
June 30, 2012	State of Emergency Still in Effect for Monmouth County; Strict Water Conservation Measures Remain Saturday; Boil Water Advisory Reduced to 22 Towns; All Outdoor Use Banned (Monmouth County Press Release)
June 29, 2012	State of Emergency Declared in Monmouth County; Strict Water Conservation Measures Put in Place; All Outdoor Use Banned; Boil Water Advisory Expands to Entire County (Monmouth County Press Release)

7. Where is the long overdue update to the Statewide Water Supply Master Plan? Why has DEP scrubbed its website regarding the prior plan? (which used to have these links:

WATER SUPPLY PLANNING
New Jersey Statewide Water Supply Plan (Pdf Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Appendices (Pdf  Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Executive Summary (Pdf Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Map

That Plan would address these critical issues.

8. Where is the press corps, especially as we experience extreme weather record heat waves and drought conditions? Who will tell the people?

[Note: here are DEP powers and responsibilities:

Healthy Trout Waters Threatened By DEP Regulatory Rollbacks

DEP issued another self serving press release to celebrate this weekend’s hosting of the Pequest’s  25th TROUT HATCHERY FREE OPEN HOUSE.

Listen to the typical overt politicization of DEP, the spin, and the hypocrisy of the message from DEP Commissioner Bob Martin:

“Opening day of the trout season is a revered spring tradition for families and outdoor enthusiasts alike,” said DEP Commissioner Bob Martin. “The Christie Administration understands and appreciates this tradition for thousands of New Jersey residents and visitors, as well as the need to protect the waters that support these prized fish.”

Bob Martin and the Christie Administration may appreciate the tradition, but they are doing nothing to preserve that tradition and instead are seriously jeopardizing that tradition by rolling back water quality and land use regulations designed to protect trout.

NJ’s trout streams receive special protections under a host of DEP regulatory programs.

Additionally, many trout streams are located in the NJ Highlands region and are protected by the Highlands Master Plan, which is under attack by the Christie Administration and the Governor’s appointed minions on the Highlands Council.

But for today, instead of laying out the comprehensive nature of the threat, I’d like to focus on the most pressing threat to the health of trout waters, the DEP waiver rule.

Under the DEP waiver rule, the DEP Commissioner is granted extraordinary power to waive virtually any regulatory protection deemed by a permittee to be “unduly burdensome” or to conflict with other regulations. Additionally, permittees are given an opportunity to seek a waiver from any regulation if they can demonstrate that they can provide a “net environmental benefit”.

There are no technical definitions or scientific methods to apply “undue burden” or “net environmental benefit”.

Therefore, waiver decisions will be made on an ad hoc case-by-case basis, which means that they will not be governed by any consistent and scientifically based methodologies, criteria, standards, Guidance document, Technical Manual, or overall policy.

The vague nature and ad hoc practice of issuing waivers in the absence of science based methods invites abuse, increases uncertainty in permit decisions, reduces predictability and transparency, and will increase permit delays and backlogs.

Each DEP program and individual staffer writing permits will have their own perspective on how to waive requirements. Chaos will ensue as permit applicants forum shop.

Waiver reviews divert scarce DEP staff resources from the Agency’s core mission and undermine the public confidence in the integrity of the Department.

So, in addition to these severe management and policy problems, given the Pequest Trout Hatchery Open House celebration, we thought we’d provide a few illustrations of exactly how the DEP waiver rule would harm NJ’s sensitive high quality trout waters (wonks can hit the links below to read the rules).

I)  Wetlands Buffers

Trout are a sensitive species that requires clean and cold water to survive.

Freshwater wetlands that drain to designated trout streams are classified as “exceptional value wetlands” and given 150 foot wide buffers. Those buffers filter water pollutants from the trout streams and provide vegetation that shades the stream and helps keep water temperatures down.

Under the waiver rule, a builder or other construction project could be provided relief from the buffers, allowing development to destroy those protective buffers.

II)  Category 1 Stream 300 foot-wide Buffers

Streams that are able to sustain naturally reproducing trout are defined as “Trout Production” (TP) waters. TP steams are classified under DEP Surface Water Quality Standards as “Category One waters” (C1). C1 waters are afforded 300 foot wide stream buffers (on each side of the stream) as BMP’s under the storm water management and stream encroachment regulations.

These buffers limit development and are strongly opposed by land owners and builders.

Under the DEP waiver rule, builders will receive waivers from the 300 foot C1 buffers.

III)  Stormwater Best Management Practices (BMP’s)

Stormwater from rainfall running off developed impervious surfaces carries pollutants to nearby streams and causes erosion. The resulting sediment and pollutant loads destroy trout streams.

DEP stormwater regulations require and encourage various stormwater BMPs, most importantly to recharge water on the site, protect water quality, and avoid or minimize erosion. By recharging storm water into the ground, nearby stream benefit as groundwater provides “base flow” during the hot summer and periods of low rainfall.

BMP’s cost money and can reduce development. Builders view them as “unduly burdensome” and they will seek and be issued waivers from DEP stormwater requirements and BMP’s.  Trout will suffer.

IV)  Stream Studies

Many development projects and other so called “point sources” (pollution discharge via pipe, sewage treatment or industrial sources, etc) are required by DEP to conduct stream studies to assess the impacts of their projects and mitigate impacts.

These studies cost money are are considered “unduly burdensome”. They will be waived and water quality will decline and trout will suffer.

V)  Water Quality Monitoring

DEP requires that many polluters monitor their pollution (compliance monitoring) and/or the ambient water quality nearby. This information is vital to setting protective permit conditions and enforcing them.

But monitoring costs money and is considered “unduly burdensome”. Waive it goodbye.

VI)  Increases on Wastewater Flows or Pollutant Loads

DEP policy is to prevent degradation of high quality waters. The presence of high quality trout waters results in limits on the total capacity (wastewater flows and pollutant loads) that may be allocated to regional sewage treatment plants.

In turn, these limits on capacity restrict the amount of development that may occur in the watershed.

As such, the local sewer authorities view them as”unduly burdensome” limits on their operating revenues and the builders view them as limits of development.

A good example is the Sussex County Municipal Utilities Authority plant which discharges to the Walkill river near the National Wildlife Refuge. The capacity of the plant is limited, which limits development in this environmentally sensitive watershed.

Kiss those limits goodbye – they unduly burden development.

VII)  Water Releases to Maintain Minimum Stream Flows and Temperatures

Trout require cold flowing streams. Some of these stream are protected by DEP set minimum stream flow and temperature requirements. DEP requires some permittees to release water to meet these minimum flow or temperatures to protect trout.

Releases from the Newark reservoirs to the Pequannock River are a good example – but this costs money and is viewed as unduly burdensome. Waive those protections goodbye.

VIII)  Water Allocation Permits

DEP issues permits to pump groundwater or divert streams or rivers for water supply.

One of the factors DEP considers in deciding how much water that can be diverted to water supply  in an environmentally sound way is impacts on the flows of streams. Trout streams are given special consideration.

Water allocation permit applicants are required to conduct costly studies to assess these kinds of impacts.

Builders, landowners, business and economic development interests view DEP studies and permit conditions as limits on available water as undue burdens on economic growth and development.

Permit conditions and studies DEP require permittees to conduct support needed revisions of:

• Safe Yields and Minimum Passing Flows in light of new hydrological data, including revisions to the NJ Geological Survey Technical Memorandum “The Hydrological Integrity Assessment Process in New Jersey”;
• Revisions of Safe Yields and Minimum Passing Flows to address Ecological Flow Goal protections and cumulative impact methodology, including new restrictions on hydro-modification of wetlands systems and alteration of stream base flow, as illustrated by the Berlin Boro well case NJ Geological Survey GSR 29 “GUIDELINES FOR PREPARING HYDROGEOLOGIC REPORTS FOR WATER-ALLOCATION PERMIT APPLICATIONS”; and
• Establishing Cumulative impact thresholds and ecological standards for allowable withdrawals in groundwater dependent areas, in consideration of currently unregulated withdrawals (see this historical classic);

IX) Septic System Permits

DEP issues permits to developments of over 50 units the rely on septic systems.

Nearby trout streams are given buffers and other protections that limit the location, design, and size of the septic system, and thereby limit development potential.

Landowners and developers see the costly DEP mandated studies and permit restrictions as “unduly burdensome” limits on development. Bye-bye.

X)  Watershed Studies – Water Quality Management Planning

DEP water quality management planing rules – which dictate where sewers are located and how much wastewater treatment capacity is assigned to a regional sewage treatment plant – dramatically impact land use and economic development.

The WQMP rules require numerous planning, mapping, and scientific studies related to land use and water quality. These studies cost money and the rules limit development.

Builders, landowners, public authorities, and county governments view these rules as excessively prescriptive and unduly burdensome.

Gone.

XI) DEP Highlands Regulations

DEP Highlands regulations set forth comprehencie requirements to protect critcial Highlands waters and natural resources, including a restrictive 88 acre minimum lot size (septic density) in the preservation area.

These regulatory restrictions are strongly opposed by land owners and builders as “unduly burdensome”.

Trout streams benefit from these protections. All of them can be waived.

XII)  Net Environmental Benefit Abuse

Given the mitigation, land swaps, and pollutant trading schemes that are already approved by DEP, I can’t even begin to imagine the kinds of abuse that this will invite.

Incommensurables – apples – oranges – grapes – the sky is the limit.

Land for water – water for wildlife – air quality, energy, recycling and a multitude of other “good deeds” will be used to relax various regulatory requirements.

Just use your imagination- and then ask Bob Martin: Let’s Make a Deal!

(Or Call Lt. Gov. Guadagno and ask for a little “customer service“!)

(Or, you could always talk to Cindy or Dave – they have friends in High Places:

There has been lots of activity since we last posted on 3/25, so a quick update on Bulls Island is in order. I’ll do the photos first and the regulatory stuff second.

First some good news – I visited the site again today and noted that all the tires and most (but not all) of the debris had been removed from the riverfront fill and that a 100 foot sediment control fence was installed (see above photo).

Now the bad news: for some reason the fence was only installed along 100 feet of the 450 foot long riverfront fill.

Worse, it looks like DEP plans to leave the debris & fill in place and not even try to restore the natural vegetation that was destroyed.

That is not acceptable and I will seek removal and restoration during the enforcement process.

Compared with the natural riverfront condition, the vegetative clearing and small landfill that has been created along the river is a disgrace (compare these two photos):

A quick regulatory update.

First, here’s what I’ve gathered actually happened:

The NJ Water Supply Authority was conducting what they felt was routine maintenance dredging under a USACE permit and a DEP wetlands General Permit. On 3/21, I witnessed them filling a dump truck with dredge material for offsite disposal.

A state parks employee told me that NJWSA bulldozed debris and fill along the river at their request as a courtesy.

A NJWSA rep told me that 98% of the riverfront debris and fill was NOT from the Canal dredge operation. This is important because both the USACE and DEP permits restrict storage and disposal of dredge material and debris. Both permits do not allow riverfront disposal.

NJWSA says they have an agreement with DEP on the the wetlands permit which seasonally restrict dredging to protect trout. NJWSA says that seasonal trout restriction and any soil erosion management practices are not necessary.

The DEP wetlands permit also requires fences and seasonal restriction to protect wood turtle. NJWSA did not comment on that.

The regulatory agencies with jurisdiction/activity are:

1) US Army Corps of Engineers (D&R Canal dredge); 2) NJ DEP (wetlands permit for canal dredge and unp-ermitted activity along riverfront); 3) D&R Canal Commission (canal dredge and riverfront fill and disturbance: 4) Hunterdon County Soil Conservation Service (canal dredge and riverfront disturbance); and 5) Delaware River Basin Commission (not sure exactly what their role is).

Canal Dredge – US Army Corps of Engineers Dredge Permit

The USACE permit has a number of conditions that appear to have been violated. I sent a detailed letter to the USACE requesting compliance inspection for their permit. Let me know if you’d like a copy.

Canal Dredge – DEP Wetlands General Permit

The DEP permit had a number of conditions that appear to have been violated. Most significant include: 1) fencing and seasonal restrictions to protect wood turtle;  2) seasonal restrictions to protect downriver trout stocking; and 3) compliance with soil erosion and sediment control plan requirements.

I requested DEP enforcement inspection but not been more specific.

DEP land use enforcement advised me that DEP inspected the site on 3/13 and remarkably found no violations. I have no idea what they were looking at.

After I submitted photographs documenting violations, they agreed to reinspect the site and meet with the NJWSA and Park Supervisior. I don’t yet have documents on what occured.

Riverfront bulldozing , destruction of riparian soils & vegetation, and storage and/or disposal of debris and fill

DEP staff conducted a permit database search and told me the there were no permits issued for this activity.

What was done there appears to be a flagrant violation of DEP flood hazard control act regulatory requirements and local SCS soil erosion and sediments controls (the area was 450 feet by 30-100 feet, far greater than the 5,000 square foot threshold for permits).

I referred this for enforcement to USACE, DEP, Hunterdon County SCS and D&R Canal Commission.

I haven’t heard anything back from those agencies yet. However, I do know that DEP, D&R Canal Commission, and Hunterdon Co, SCS all conducted inspections.

Tree Health Assessment and Tree Removal Plans

This is the most important issue.

I filed an OPRA request for these documents. Today, DEP requested an extension until April 5.

In other matters, I am aware that Delare Riverkeeper filed a DEP Hotline complaint and is involved.

I’ve provided info to NJ Audubon and requested their support, particularly on the bird habitat issues related to any planned tree removal. They seem interested and supportive.

I spoke with editor of the Hunterdon County Democrat – they should be doing a followup story.

The DEP Press Office (Larry Rangonese) is unrepentant and continues to attack me and question my motives.

We will keep you posted. More photos shot today below.

Dupont Partial Lake Cleanup Plan Uses Flawed Science to Minimize Problem

Florio Lets Liability Cat Out of the Bag

EPA must stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

Dupont has a big mercury problem in Pompton Lakes, NJ (in addition to the cancer cluster and vapor intrusion).

Scientifically and legally, the problem is similar to General Electric’s (GE) problem with dumping toxic and bioaccumulative PCB’s in the Hudson River, where, according to EPA:

From approximately 1947 to 1977, the General Electric Company (GE) discharged as much as 1.3 million pounds of polychlorinated biphenyls (PCBs) from its capacitor manufacturing plants at the Hudson Falls and Fort Edward facilities into the Hudson River.

That GE dumping poisoned 200 miles of the Hudson River, leading EPA to declare that portion of the River a Superfund site and forcing GE to cleanup the river at a cost of over $500 million.

Like GE, for almost 100 years, Dupont used and disposed of mercury compounds at their explosives manufacturing facility.

Like GE, mercury air emissions and mercury dumping on the Dupont site have led to significant off site releases, so that soils and sediments along the the Acid Brook, Pompton Lake, and natural resource and the downriver region are poisoned.

Mercury is highly toxic to humans, fish and wildlife – it bioaccumulates through the food chain. Its effects are magnified by predators up the food chain and persist for many years.

Like in the the Hudson River, because of mercury pollution, it is unsafe to eat freshwater fish in NJ – and consumption warnings are posted on Pompton Lake (but largely ignored).

Dupont wiped out an entire fishery.

And like Hudson River PCB’s, EPA has extensive national scientific and regulatory experience with mercury in the Great lakes region that is relevant to Dupont Pompton Lakes.

Like GE, Dupont wants to minimize the cost of cleanup and resists EPA cleanup mandates.

I don’t know about GE/Hudson, but in Pompton lakes, EPA Regional Administrator Judith Enck has given the community multiple assurances that EPA will hold Dupont accountable and strictly enforce environmental laws. For example, in an October 14, 2010 reply letter, RA Enck assured me that:

You have my commitment that the Environmental Protection Agency will ensure that Dupont will fulfill its RCRA obligations for this facility.

But Dupont has proposed a partial cleanup plan of just a 26 acre portion of the 250 acre Pompton Lake – no downriver sediment removal is being considered at this time. Dozens of areas of toxic soil contamination on the Dupont site still have not been cleaned up (after 30 years).

The plan is not only for only a small part of the Lake, but it is based on flawed science.

The Dupont plan must be approved by EPA under the Resource Conservation and Recovery Act (RCRA), the most important environmental law you probably never even heard of (and the polluters like it that way).

But now the Dupont plan is in EPA’s lap, which in some ways makes Dupont’s mercury problem EPA’s problem too.

Was Dupont’s plan reviewed and approved by EPA’s national scientific experts on mercury and USFWS scientists? Here’s why we need to know answers to those questions:

I)  Florio Lets the Liability Cat Out of the Bag

The residents of Pompton Lakes want the site designated and cleaned up by EPA under the Superfund program.

Thus far, their primary reasons for wanting Superfund instead of RCRA is that Superfund would bring more federal resources, a higher priority and visibility, and more community involvement in cleanup decisions.

But Jim Florio, Former NJ Governor and original sponsor of the 1980 Superfund law, just let the legal liability cat out of the bag.

The Superfund liability scheme adds another very good reason to use Superfund to compel Dupont to conduct a comprehensive and complete cleanup of the entire site, Pompton Lake, and downriver and compensate the public for huge natural resource and ecological damages they have caused (just like GE in the Hudson).

Florio went out of his way to emphasize that under Superfund, the legal liability scheme is known as “strict, joint, and several”.

Practically, what this legalese essentially means is that:

• Dupont is 100% on the hook for the ENTIRE problem
• EPA does not have to prove negligence  by Dupont
• EPA has enormous power to force Dupont to do a complete cleanup.

This is key because mercury pollution comes from multiple sources: coal power plants, garbage incinerators, and smelters and industrial sources.

Dupont is arguing that they are responsible ONLY for the mercury they allegedly contributed – and only via Acid Brook runoff, NOT THE TOTAL HISTORIC MERCURY AIR EMISSIONS FROM THE DUPONT PLANT AND ALL ON SITE DISPOSAL PRACTICES.

EPA has agreed to this bogus Dupont argument and that is why only a 6 inch deep small 26 acre portion of the 250 acre Lake (the “Acid Brook Delta”) sediments are being dredged.

Dupont could not get away with that under Superfund.

While it is true that EPA has less legal leverage under RCRA that Superfund, EPA still could do the right thing by forcing Dupont to scientifically establish how much mercury came from their facility and how much came from other sources.

But Dupont has not done any of that kind of work and EPA therefore has no scientific basis upon which to approve the plan. (and that’s just EPA’s problem #1)

II)  Dupont’s Science is Flawed and Can Not Be Approved BY EPA

EPA has done an enormous amount of scientific work on mercury.

In contrast with this rigorous EPA body of work, Dupont’s various regulatory documents rely on cursory and flawed science and assessment methods.

These flawed Dupont approaches provide the basis for the Dupont partial Acid Brook Delta cleanup plan and ecological assessment.

Dupont’s science and methods are inconsistent with, do not meet the rigorous standards of, and contradict EPA science. [Update: See

• EPA Lake and Reservoir Bioassessment and Biocriteria Technical Guidance
• EPA Region 8 Ecological Risk Characterization
• ASTM Method E1706 ]

As such, EPA can not approve of them by approving a cleanup plan based on them.

The primary EPA scientific sources for mercury, for our purposes are (there are lots others):

• EPA Report to Congress
• EPA Regulatory Impact Analysis of Mercury Air Toxics Standard
• EPA Great lakes Mercury Initiative

(examples of additional studies of scientific and regulatory relevance are the

• NOAA Report to Congress on Mercury Contamination in the Great Lakes
• various US Fish and Wildlife Service bird studies and fish studies and
• the 1996 Biological Opinion of the USFWS NJ Field Office
• NJ DEP’s 2002 proposed “wildlife criteria” SWQS for mercury
• EPA’s letter of support of the NJ DEP proposed SWQS wildlife criteria

Compared with the EPA Recommendations to Congress on ecologically protective mercury fish tissue levels, fish in Pompton lakes contain 2 – 10 TIMES safe levels.

Depending on trophic level of the fish, the EPA finding is 0.077 ppm – 0.346 ppm.

According to DEP, the fish in Pompton Lake average 0.72 ug/g (ppm).

[Update: A May 6, 2008 DEP email to Dupont specifically addressed this issue:

in order to present a balanced comparison, DuPont shall compare the average concentrations of mercury in largemouth bass from Pompton Lake to the regional average of 0.46 ug/g mercury in largemouth bass and/or the statewide average (0.44 ug/g) in the Remedial Investigation Report.

Additionally, Dupont’s ecological risk analysis is flawed, as it relies too heavily on alleged no impacts on the benthic (bottom) macroinvertebrate community structure. Community structure is a poor indicator of bioavailability, bioaccumulation, and ecological risk that I haven’t seen used anywhere else. And even if you were looking at macro invertebrates, you would be doing so to consider food chain bioaccumulation, so you would look at tissue concentration of mercury, not community structure.

[Update: I may have misread the Dupont documents on this point – macro-invertibrate community structure is of relevance, and YOY fish are trophic indicator in food web design – see Mercury Cycling in Stream Ecosystems. 3. Trophic Dynamics and Methylmercury Bioaccumulation – Where Dupont draws misleading conclusion is with this assertion:

However, tissue concentrations measured in the delta in 2005 do not indicate an increased accumulation of mercury by chironomids and YOY fish tissue relative to the tissue data collected during the 1998 ecological investigation. – end update]

[Update 2 – Here is what I meant to say, as provided by DEP’s Ecological Evaluation Guidance says about limitations of macro invertebrate sampling:

Some limitations are that they do not identify the contaminant responsible for the observed toxicity, population impacts are not readily translated into contaminant remediation goals, and results are often confounded by variables not related to contaminant toxicity (predation, seasonal differences, physicochemical sediment characteristics, food availability).]

Similarly, Dupont sampled “young of year” (YOY) fish, which minimizes bioaccumulation as young fish haven’t lived long enough to bioaccumulate the mercury in the system.

Here are additional serious flaws in Dupont’s analysis:

1) I didn’t see anything in Dupont’s documents concerning terrestrial mammals

2) There was no data or discussion of the bird sampling – other than a cursory claim of low/no adverse impact on 4 of 5 bird species sampled. What bird species? What tissue (or egg shell) concentrations found? What adverse impacts were considered?

3) There was no discussion of biological mechanisms that convert mercury they propose to leave in the sediments into bioavailable forms.

4) There was no data provided or consideration given to Dupont’s historic use of mercury compounds in manufacture.

5) There was no data or estimate of Dupont’s mercury air emissions and how those emissions deposited locally.

6) There was no dating or chemical analysis of soil or sediment cores that would suggest historic patterns of mercury deposition.

7) The full extent of mercury deposition and off-site release from the Dupont facility has not be adequately characterized.

8) There was no valid characterization of “mercury background”.

[According to the USEPA, background refers to constituents that are not influenced by the discharges from a site, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. “Role of Background in the CERCLA Cleanup Program.” Office of Solid Waste and Emergency Response.

[ According to NJ DEP Ecological Evaluation Guidance:

Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.

9) There was no data provided to support apportionment of mercury in the environment as Dupont alleges to minimize their cleanup obligations (i.e. Dupont share and other source share).

10) There was no data or estimate sof total mercury loading; mechanisms and estimates of methylation; fate/transport modeling; bioaccumulation mechanisms; and human and wildlife exposure and risk assessments from air emissions, contaminated soil, surface water runoff of mercury disposed on site.

I assume that some of this data and analysis were provided in the original ecological assessment submitted to NJ DEP in accordance with State cleanup regulations (and rubber stamped by DEP’s broken cleanup program).

[Full disclosure Update: in 1995, a former NJ Governor, with DEP’s help, was shown to misrepresent the science on mercury in fish tissue to downplay risks – when I disclosed this scheme, management retaliated and I was forced out of DEP as a whistle-blower. Hit that link for all the documentation.]

However, this is an EPA federal RCRA action that must be EPA approved. Accordingly,  all the documents must be made available to the public during the comment period. That has not been done in this case so EPA can not approve the Dupont plan based on documents and analyses that have not been made publicly available.

III)  EPA is Required to Consult with US Fish and Wildlife Service

RCRA regulations require EPA to consult with federal agencies, including the US Fish and Wildlife Service during the RCRA permit process.

We advised EPA Regional Administrator Enck on November 17, 2011 that RCRA regulations include full federal partner review including, but not limited to, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, and Agency for Toxic Substance and Disease Registry, pursuant to regulation 40 CFR 124.10(c)(iii).

Certainly such consultation is required BEFORE EPA issues a “tentative approval” and proposes a draft RCRA permit for public comment.

Thus far, it appears that EPA has not complied with these consultation requirements prior to issuing the draft permit.

IV)  Dupont is Required to Comply with Clean Water Act Standards

The federal Clean Water Act applies to Dupont’s water pollution discharges.

The CWA also applies to the RCRA permit process, which must meet CWA requirements.

NJ DEP State surface water quality standards (SWQS) have been approved by EPA and are federally enforceable. They trigger enforceable requirements on pollution discharge that may “cause or contribute to” a violation of a SWQS.

NJ DEP SWQS designate Pompton Lake for recreational use (fishing, swimming,etc), aquatic life protections, and water supply.

The SWQS have policies and narrative and numeric standards that the RCRA permit and Dupont clean up must comply with.

The Dupont proposed cleanup plan provides no discussion or demonstration regarding compliance with the legally applicable and binding provisions of the CWA or NJ SWQS.

Accordingly, EPA can not approve the Dupont proposal as a final RCRA permit in the absence of this compliance demonstration.

EPA must stand by their own science. According to the EPA supported NJ DEP wildlife criteria proposal. According to the DEP SWQS proposal (which USFWS and EPA supported)::

“As part of the 1994 approval of the New Jersey SWQS triennial review process, the USEPA, in collaboration with the USFWS, indicated that the human health based criteria for PCBs were not protective of the threatened and endangered species bald eagle, peregrine falcon, and dwarf wedgemussel. As a result, the Service prepared a Biological Opinion document in 1996 (Biological opinion on the effects of the U.S. Environmental Protection Agency’s approval of the state of New Jersey’s surface water quality standards on the bald eagle, peregrine falcon, and dwarf wedgemussel. U.S. Department of the Interior, Fish & Wildlife Service, New Jersey Field Office, Pleasantville, New Jersey. 1996). The lack of wildlife criteria for DDT and its metabolites, mercury, and PCBs was a concern to the USFWS. DDT and its metabolites, mercury, and PCBs are bioaccumulative pollutants that are persistent in the environment, accumulate in biological tissues, and biomagnify in the food chain. Due to these characteristics, the concentration of these contaminants may increase as they are transferred up through various food chain levels. As a result, adverse impacts to non-aquatic, piscivorous (fish-eating) organisms may arise from low surface water concentrations. The peregrine falcon is not a piscivorous species. However, it feeds on other piscivorous bird species. Therefore, biomagnification may be of even greater concern for the peregrine falcon.

The USEPA developed site-specific wildlife criteria for the Great Lakes based on a number of factors, including the toxicity of various pollutants and their tendency to bioaccumulate and biomagnify. In addition, the USEPA gathered and applied information about piscivorous wildlife endemic to the Great Lakes region in its derivation of water quality criteria. That effort resulted in the promulgation of numeric surface water concentrations designed to be protective of all avian and mammalian wildlife using Great Lakes waters. “

EPA must now stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

1) Dupont’s proposed cleanup of Acid Brook Delta is only partial – we demand that all mercury and all pollutants be completely and permanently cleaned up so that the Lake is fishable and swimmable as mandated by the federal Clean Water Act and NJ Water Pollution Control Act;

2) The original 1992 EPA issued RCRA permit must be enforced and has numerous loopholes that must be closed – all RCRA “SWMU’s” and off site releases which are sources of toxic soil, sediment, vapor, and groundwater contamination must be cleaned up under more aggressive schedules and obligations than those EPA unilaterally imposed in a “compliance schedule modification” on May 4, 2010 without public notice and comment;

3) Natural resource damages and toxic fish and wildlife impacts of Dupont’s pollution have not been assessed fully and must be assessed and the public fully compensated;

4) EPA must take enforcement action and collect fines such that vapor mitigation systems are immediately installed in all impacted homes.

The plume area may be larger than currently thought, when subsurface infrastructure migration is considered.