Archive for the ‘Policy watch’ Category

Gov. Christie’s Retaliatory Massacre at the D&R Canal Commission

September 27th, 2012 3 comments

Women jog along D&R Canal in Kingwood

Christie Concludes: If I Can’t Abolish or Bypass Them, I’ll Appoint Them!

The Hunterdon County Democrat reports today that Governor Christie has proposed to replace the entire membership of the D&R Canal Commission:

Christie nominates new members of Delaware & Raritan Canal Commission

Gov. Chris Christie has nominated eight people for the Delaware and Raritan Canal Commission. They would replace four current members and fill four vacancies for public members on the group, which is charged with preserving the canal’s resources and its historical integrity.

In making the nominations, the governor did not give any reasons for the changes. The current commissioners are “serving in a hold-over capacity until Governor Christie named commissioners,” said Sean Conner, a spokesman. The current public members are David Knights, John Loos, Phyllis Marchand and Alison Mitchell.

[The Gov. could have filled the 4 vacancies and retained the current 4 Commissioners.]

The Governor gave no reason because the reason is obvious: he is retaliating against the Commission for their independence and for embarrassing him and opposing his DEP Commissioner.

This is what happens when you take on the Governor – he cuts your head off.

Gov. Christie was embarrassed because he and DEP Commissioner Martin tried – and failed – to abolish the Commission outright, see:

We’re very frustrated, but also very determined that this commission has to remain independent,” said John Loos, one of the five commissioners who voted for the resolution standing up to the administration’s plans.

Martin was embarrassed by his mis-steps and overreaction to propose a clearcut at Bull’s Island. See:

The Bull’s Island controversy was escalating, receiving increasing public scrutiny, and had received significant media coverage, see:

The Governor is proposing to remove Canal Commissioner John Loos and well respected conservationist, Alison Mitchell, of the NJ Conservation Foundation.

In addition to opposing the Gov. plan to abolish the Commission, Loos repeatedly criticized DEP’s failure to approve the paperwork required to hire staff and the governor’s failure to fill the vacancies on the Commission, which recently made it impossible to form a quorum and take official action on projects. That problem also received embarrassing news coverage see: Delaware & Raritan Canal Commission in need of members

Mitchell raised similar concerns, and had recused herself on Bull’s Island and was working with NJCF staff to oppose the DEP tree cutting plans.

It was becoming clear that the Commission was going to oppose controversial – and expanding -DEP plans to cut lots of trees on the Island.

At their last meeting, they even planned to consider revising the Park Master Plan to block DEP the cuts.

What is abundantly clear is that the Commission was becoming increasingly independent, outspoken, and hostile to DEP’s plans for Bull’s Island. As a result of that, they are gone.

Those interested in the details of all that should see these posts:

Given the Democrat’s failure in the Legislature to block Senate confirmation of Governor Christie’s Highlands appointments, the Gov.’s Canal Commission nominees are virtually guaranteed to be confirmed.

The first issue for the new Commissioner members will be  Bull’s Island – the most controversial in the history of the Commission.

How likely are new Commissioners to over-ride and reject DEP’s tree cutting plans?

I know nothing about the qualifications, views, and competence of the Gov.’s nominees so will not comment on them individually – but as a Commission, they sure will have their hands full.

Far worse,  however is the loss of 4 current members – under these conditions – which has caused severe damage to the Commission’s  independence and institutional credibility.

Categories: Hot topics, Policy watch, Politics Tags:

Don’t Frack NY – Albany Protest Photos

September 1st, 2012 No comments

Will Cuomo Sell Out to the Frackers?

Will professionals at NY DEC stand up for scientific integrity and the public interest, or allow politicians and industry lobbyists to approve the EIS?

"Father Knows Best"


Last Monday (8/27/12), I traveled up to Albany NY to join the “Don’t Frack NY” protest, calling on Governor Cuomo to block fracking in the Empire State – ground zero in the anti-fracking activism debate.

In addition to the well placed focus on Gov. Cuomo, perhaps the most important development in this protest was the tremendous outpouring of support for a pledge to resist, should Cuomo allow fracking in NY.

Over 3,200 people pledged to actively resist any fracking. Support for resistance is a hugely important and completely unreported aspect of the anti-fracking movement.

My ties to NY are deep and lasting. I love the place.

I am a native of New York, who grew up on the magnificent Hudson River. As a kid, I vacationed in the glorious Catskill and Adirondack Mountains and swam in pristine lakes.

I went to college in NY’s “southern tier” at SUNY Binghamton and grad school in the Finger Lakes at Cornell, high above Cayuga’s waters, incredible places now targeted as fracking “sacrifice zones”.

In a deeply depressing irony, my Master’s Thesis topic was “Local Land Use Controls To Protect Groundwater Resources” in vulnerable river valley aquifers, primarily to prevent contamination from toxic chemicals.

Thirty years later, that is exactly what fracking intentionally does – fracking injects millions of gallons of a toxic chemical soup deep underground!

That thesis work focused on the Southern Tier and I worked with a woman planner with the Southern Tier Regional Planning Board out of Horseheads NY.

Amazingly, 30 years later, a woman scientist from Horseheads spoke at the rally.

My head explodes thinking about it, so I’ll stop writing now and simply post some photos of an outstanding and important event.

Fracktivists converge on the NY DEC Building. Think DEC got the message? Will the professionals there stand up for independence and scientific integrity, or allow politicians and industry lobbyists to approve the EIS?

Categories: Hot topics, personal, Policy watch, Politics Tags:

DEP Abandoned Building Risk Pilot In Camden More a Photo Op Than a Program

August 30th, 2012 1 comment

DEP shows inside of abandoned building, Camden, NJ

DEP hands off a major statewide responsibility to local government

No State Resources or Regulations

 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 findingsthis 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:

34:5A-2. Legislative findings and declarations

The Legislature finds and declares that the proliferation of hazardous substances in the environment poses a growing threat to the public health, safety, and welfare; that the constantly increasing number and variety of hazardous substances, and the many routes of exposure to them make it difficult and expensive to adequately monitor and detect any adverse health effects attributable thereto; that individuals themselves are often able to detect and thus minimize effects of exposure to hazardous substances if they are aware of the identity of the substances and the early symptoms of unsafe exposure; and that individuals have an inherent right to know the full range of the risks they face so that they can make reasoned decisions and take informed action concerning their employment and their living conditions.

The Legislature further declares that local health, fire, police, safety and other government officials require detained information about the identity, characteristics, and quantities of hazardous substances used and stored in communities within their jurisdictions, in order to adequately plan for, and respond to, emergencies, and enforce compliance with applicable laws and regulations concerning these substances.

The Legislature further declares that the extent of the toxic contamination of the air, water, and land in this State has caused a high degree of concern among its residents; and that much of this concern is needlessly aggravated by the unfamiliarity of these substances to residents.

The Legislature therefore determines that it is in the public interest to establish a comprehensive program for the disclosure of information about hazardous substances in the workplace and the community, and to provide a procedure whereby residents of this State may gain access to this information. 

And it’s not just DEP that doesn’t want to talk about any of these issues – the RTK program seems to have fallen off both the media and environmental community’s radar screen.

So, no wonder the depleted press corps gets spun by this kind of photo op stunt.

Second of all, as announced via a comprehensive set of Executive Orders that Governor Christie issued in his first hour in office, the Christie DEP policy agenda is:

An expansion of the RTK program would violate each one of these policies set by Governor Christie via Executive Order: a real statewide urban abandoned building program would require more DEP regulatory burden, more DEP staff, more DEP budget, and more DEP unfunded mandates. 

That’s why DEP whitewashed the RTK program – and instead called it a Pilot Program. That enabled them to irresponsibly hand off a major statewide responsibility to local government.

If DEP were serious, they would propose regulations or go to the Legislature to seek an expansion of the current RTK program to abandoned buildings and the other dangerous materials found in those buildings that are not regulated under the current RTK program.

DEP hands off the program to Camden Fire Chief - no DEP "Boots on the Ground" (hand off or hand job?) * DEP press office is offended by the sexual connotation. I would have used the term "lip service" - which has similar sexual connotations - but, since DEP described the photo op depicted as a "hand off", I didn't want to mix my metaphors. Larry Rangonese is a real WANKER! More to follow on this.

End Note: – maybe I should offer an example to better illustrate my point.

Suppose DEP held a press conference announcing a pilot program where they found 32 pipes discharging pollution to a river in a specific city.

Supposed DEP then called that  a pilot study, gave the city a GIS map of the pipes, and said “have at it”: clean them pipes up and protect the river from pollution.

And suppose, while doing all this, DEP didn’t mention a word about the Clean Water Act and their permitting and enforcement responsibilities under the Clean Water Act.

Now you see my point on what went on here?


Categories: Hot topics, Policy watch Tags:

Southwestern NJ in Drought Emergency

July 30th, 2012 No comments

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:

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:

58:1A-4. State of water emergency; emergency water supply allocation plan; powers ofGovernor and Commissioner; orders; review.

a. Upon a finding by the commissioner that there exists or impends a water supply shortage of a dimension which endangers the public health, safety, or welfare in all or any part of the State, the Governor is authorized to proclaim by executive order a state of water emergency. The Governor may limit the applicability of any state of emergency to specific categories of water supplies or to specific areas ofthe State in which a shortage exists or impends.

b. The department shall, within 180 days of the effective date of this act, adopt an Emergency Water Supply Allocation Plan as a rule and regulation. This plan shall be utilized as the basis for imposing water usage restrictions during a declared state of water emergency and shall include a priority system for the order in which restrictions would be imposed upon the various categories ofwater usage.

c. During the duration ofa state ofwater emergency the commissioner, to the extent not in conflict with applicable Federal law or regulation but notwithstanding any State or local law or contractual agreement, shall be empowered to:

(1) Order any person to reduce by a specified amount the use of any water supply; to make use of an alternate water supply where possible; to make emergency interconnections between systems; to transfer water from any public or private system; or to cease the use of any water supply;

(2) Order any person engaged in the distribution of any water supply to reduce or increase by a specified amount or to cease the distribution of that water supply; to distribute a specified amount of water to certain users as specified by the commissioner; or to share any water supply with other distributors thereof;

  1. (3)  Establish priorities for the distribution ofany water supply;
  2. (4)  Adopt rules and regulations as are necessary and proper to carry out the purposes of this section; and

(5) Direct any person engaged in the retail distribution of water to impose and collect a surcharge on the cost of that water as a penalty for the violation of any order to reduce water usage issued pursuant to this subsection. The disposition of all sums collected pursuant to this subsection shall be as provided by law; and

(6) Otherwise implement the Emergency Water Supply Allocation Plan adopted pursuant to subsection b. of this section.

Any order issued by the commissioner pursuant to this subsection shall be based upon fair compensation, reasonable rate relief and just and equitable terms, to be determined after notice and hearing which may occur subsequent to the order and compliance therewith.

d. During the existence of a state of water emergency, the Governor may order the suspension of any laws, rules, regulations, or orders of any department or agency in State Government or within any political subdivision which deal with or affect water and which impede his ability to alleviate or terminate a state ofwater emergency.

e. Any aggrieved person, upon application to the commissioner, shall be granted a review of whether the continuance of any order issued by the commissioner pursuant to this section is unreasonable in light of then prevailing conditions of emergency.

f. During a state of water emergency the commissioner may require any other department or other agency within State Government to provide information, assistance, resources, and personnel as shall be necessary to discharge his functions and responsibilities under this act, rules and regulations adopted hereunder, or applicable Federal laws and regulations….

58:1A-5. Supply and diversion of water; rules and regulations.

The commissioner shall have the power to adopt, enforce, amend or repeal, pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.) rules and regulations to control, conserve, and manage the water supply of the State and the diversions of that water supply to assure the citizens of the State an adequate supply of water under a variety of conditions and to carry out the intent of this act. These rules and regulations may apply throughout the State or in any region thereof and shall provide for the allocation or the reallocation of the waters of the State in such a manner as to provide an adequate quantity and quality ofwater for the needs ofthe citizens of the State in the present and in the future and may include, but shall not be limited to:

a. A permit system to allocate or reallocate any or all of the waters of the State, which system shall provide for the issuance of permits to diverters ofmore than 100,000 gallons per day of the waters ofthe State, containing at a minimum the conditions required by this act;

b. Standards and procedures to be followed by diverters to ensure that:

  1. (1)  Proper methods are used to divert water;
  2. (2)  Only the permitted quantity of water is diverted and that the water is only used for its permitted purpose;

(3) The water quality of the water source is maintained and the water standards for the use ofthe water are met;

(4) The department is provided with adequate and accurate reports regarding the diversion and use ofwater;

c. Inspection, monitoring, reporting and enforcement procedures necessary to implement and enforce the provisions ofthis act;

d. Standards and procedures to be followed to determine the location, extent and quality of the water resources of the State and plan for their future use to meet the needs of the citizens ofthe State; …

58:1A-13. New Jersey Statewide Water Supply Plan.

a. 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.

b. The plan shall include, but need not be limited to, the following:

(1) An identification of existing Statewide and regional ground and surface water supply sources, both interstate and intrastate, and the current usage thereof;

(2) Projections of Statewide and regional water supply demands for the duration of the plan;

(3) Recommendations for improvements to existing State water supply facilities, the construction of additional State water supply facilities, and for the interconnection or consolidation ofexisting water supply systems, both interstate and intrastate;

(4) Recommendations for the diversion or use of fresh surface or ground waters and saline surface or ground waters for aquaculture purposes;

(5) Recommendations for legislative and administrative actions to provide for the maintenance and protection ofwatershed areas;

(6) Identification of lands purchased by the State for water supply facilities that currently are not actively used for water supply purposes, including, but not limited to, the Six Mile Run Reservoir Site, with recommendations as to the future use of these lands for water supply purposes within or outside ofthe planning horizon for the plan; and

(7) Recommendations for administrative actions to ensure the protection of ground and surface water quality and water supply sources. …

58:1A-13.3. Preparation, adoption of revisions, updates to New Jersey Statewide Water Supply Plan.

a. The department shall prepare and adopt appropriate revisions and updates to the current New Jersey Statewide Water Supply Plan no later than December 31, 2006 pursuant to the provisions of section 13 ofP.L.1981, c.262 (C.58:1A-13).  …

58:1A-14. Inadequate supply available to water purveyor; order for development or acquisition; certification of amount in local budget.

a. When the department determines that the developed water supply available to a water purveyor is inadequate to service its users with an adequate supply ofwater under a variety of conditions, the department may order the water purveyor to develop or acquire, within a reasonable period oftime, additional water supplies sufficient to provide that service.

58:1A-15. Powers and duties.


e. Order the interconnection of public water supply systems, whether in public or private ownership, whenever the department determines that the public interest requires that this interconnection be made, and require the furnishing ofwater by means ofthat system to another system, but no order shall be issued before comments have been solicited at a public hearing, notice of which has been published at least 30 days before the hearing, in one newspaper circulating generally in the area served by each involved public water supply system, called for the purpose ofsoliciting comments on the proposed action.

f. Order any person diverting water to improve or repair its water supply facilities so that water loss is eliminated so far as practicable, safe yield is maintained and the drinking water quality standards adopted pursuant to the “Safe Drinking Water Act,” P.L.1977, c.224 (C.58:12A-1 et al.) are met;  …

58:1A-16. Violations of act; remedies.  

Categories: Hot topics, Policy watch Tags:

Dupont’s Mercury Problem Is Now EPA’s Problem Too

January 7th, 2012 25 comments

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.

sunsets on mercury laced Pompton Lake (1/5/12)

sun sets on mercury laced Pompton Lake (1/5/12)

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.

fish consumption warning posted on Pompton Lake

fish consumption warning posted on Pompton Lake

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

Jim Florio, sponsor of 1980 Superfund law, speaks at community rally (1/5/12)

Jim Florio, sponsor of 1980 Superfund law, speaks at community rally (1/5/12)

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

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):

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

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.

Judith Enck, EPA region 2 ADministraor warns residents about risks of eating contaminated fish from waters nearby toxic sites

Judith Enck, EPA region 2 Administrator came to NJ to warns residents about risks of eating contaminated fish from waters nearby toxic sites

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 BioaccumulationWhere 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.]

Lois Gibbs speaks at community rally (1/5/12)

Lois Gibbs speaks at community rally (1/5/12)

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.

Rally before EPA RCRA permit hearing (1/5/12)

Rally before EPA RCRA permit hearing (1/5/12)