Documents Show Dupont, EPA, and DEP Knew Of Pompton Lakes Vapor Problem for Seven Years Before Warning Exposed Residents

Possible EPA misleading reports on Dupont environmental indicators

Please bear with me as I bury the lede – it is necessary in order to tell the story.

Last night in Pompton Lakes, about 35 residents turned out for the kickoff of the “real” “Community Advisory Group” (RCAG) to oversee the EPA/DEP supervised cleanup of the Dupont site.

The new group formed when a local faction on the original EPA sponsored CAG mounted an ugly personal attack and moved to kick Lisa Riggiola off the CAG.

Riggiola, a former Councilwoman, essentially is the Lois Gibbs of the Dupont site.

She’s been working to inform and organize her “plume” community for years, is an effective activist, and is the person most responsible for recent progress at the site, including several EPA recent commitments and – ironically – the formation of the CAG.

But no good deed goes unpunished – EPA stood by and let Riggiola get attacked. EPA looked the other way despite the fact that the CAG is a formal element of the EPA’s Superfund program, it was formed by EPA, is facilitated by EPA, and personal attacks are prohibited by the EPA’s own CAG bylaws.

In response, Riggiola resigned and Dana Patterson of Edison Wetlands resigned in solidarity. Both then moved to form the new RCAG.

To their credit – and probably only out of EPA Region 2 Administrator Judy Enck’s personal repect for Lisa Riggiola – EPA at least showed up last night. But DEP, the local government, and the original CAG members stayed away.

I heard the same valid litany of criticism of Dupont, EPA, DEP and the CAG last night. We’ve written about that several times here (see this and this).

But the real news last night was not the formation of the new RCAG.

Instead, the news was that Edison Wetlands Assc. distributed a DEP document that presented a chronology of major milestones in the EPA and DEP regulatory review of the Dupont site.

We have asked several questions and pointed to major problems with respect to the chronology on the Vapor Intrusion (VI) issue, but have gotten little response from EPA and none from DEP (see this and this).

EWA obtained this “confidential” document while doing an OPRA file review at DEP.

As we’ve observed countless times, the most significant information is in DEP/EPA files, and not gleaned from bullshit “stakeholder” or CAG processes, which only seek to co-opt and divert communities and activists. Time spent on OPRA file reviews is far more productive and effective than those shams.

The DEP assembled chronology appears to be dated 5/28/08. It is labeled a “Confidential Document” in large font boldface and it is not on DEP letterhead. I’ve never seen this label before.

Typically, when DEP seeks to keep a document confidential and exempt from OPRA disclosure, they label it “deliberative“. These kind of OPRA exempt documents are purged from the file after an OPRA request is filed and before a person can conduct the OPRA file review.

So, I can’t vouch for its authenticity, but the content seems totally legit. Which raises the question of why it was not purged from the file, who labeled it, and why the document was labeled “confidential”.

Aside from these anomalies, the chronology is full of smoking guns – but I want to focus only on the vapor intrusion (VI) related issue here today.

The chronology notes that on 3/30/01 (no typo, over 10 years ago!) “Regulatory agencies tell Dupont that the VI pathway must be addressed.”

But, not until  2008 – more than 7 years later – did anyone at EPA or DEP advise – or warn – Pompton Lakes residents that VI was a concern.

During that 7+ year period, Dupont, EPA, and DEP quietly “negotiated” how to handle the VI issue.

A full five years after first “telling” Dupont in 2001 that the VI pathway must be addressed, on 1/27/06, Dupont finally submitted a “VI Investigation and Remedial Action Worklan“.

But, not surprisingly, Dupont employed a classic dual strategy of:

1) manufacturing uncertainty to delay and weaken any regulatory requirements; and

2) a race to the bottom to seek the weakest standards as a cost minimization move. This was done in this case by Dupont seeking to use NJ DEP’s less stringent VI screening values, rather than US EPA’s lower values.

Accordng to the DEP chronology, EPA’s lower (more costly) screening values were based on a cancer risk of 1×10(-5). But DEP is legally required to regulate cancer risks at a 1×10(-6) risk level (ten times MORE protective), so it is unclear why DEP’s VI screening values were an order of magnitude HIGHER (10 times LESS protective) than EPA’s.

After another year went by, on 1/31/07, DEP, EPA, and Dupont met quietly in Trenton to discuss the “VI technical approach”.

Imagine that, six YEARS after “telling” Dupont that they must address the VI pathway, they finally get around to a meeting to discuss the “technical approach“.

At this meeting, Dupont again used manufactured uncertainty to delay and weaken any VI compliance obligations and response.

According to the DEP document, “no laboratory was certified at that time to achieve the low US EPA screening levels“.

This excuse was used to let more than ANOTHER year go by.

Which brings us to 3/5/08 when “DEP notified Dupont that a laboratory has recevied certification in the new Low-Level EPA TO-15 air analytical method and therefore Dupont can now achieve the USEPA screening level“.

The claims in this chronology can be confirmed, but pending that research, at first blush it reads like a concocted joint Dupont – DEP excuse for unconscionable delays in regulatory enforcement and failure to notify and warn Pompton Lakes residents. I read a similar DEP CYA chronology in the notorious Kiddie Kollege case.

It is plausible that this DEP chronology was prepared in 2008 as a bureaucratic ass covering exercise as the shit was hitting the fan after the initial public release of the vapor concerns. Just like in the high profile Kiddie Kollege fiasco, I’m sure DEP’s top management asked questions and wanted a briefing to learn how this all could have happened.

It is equally plausible that the Dupont file subsequently was “seeded” just so EWA, PEER, or the media would “discover” it under OPRA.

During this seven year period, a number of significant and totally unacceptable things happened:

• residents – including pregnant women and young children – of homes above the “plume” were needlessly exposed to unsafe levels of cancer causing chemicals.
• EPA Region 2 submitted multiple management reports and RCRA Corrective Action Environmental Indicator Reports to the public and Congress that stated that the Dupont groundwater plume was “under control” and that provided no status on “human exposure”, despite known vapor intrusion exposure concerns. Perhaps in an attempt to cover this trail of deception, the human exposure indicator recently has been revised.
• Residents who sued Dupont were unaware or vapor intrusion exposures and health risks. Lacking this critically relevant information, they signed liability releases. Those releases subsequently were used to bar them from lawsuits and absolve Dupont for vapor intrusion damages. 

As I advised EPA R2 press officer last night, when EPA was found submitting misleading reports to EPA managers and Congress on the ecological health and water quality of Chesapeake Bay, it was page one news in the Washington Post. The resulting scandal and GAO investigation prompted an Executive Order by President Obama.

The strong possibility of similar EPA misleading RCRA reporting on Dupont environmental indicators needs to be investigated, as does the chronology in toto.