EPA Playing Superfund Games at Dupont Site

EPA Puts Politics Above Risks To Human Health and Environment

EPA Rejects Residents’ Superfund Request in Advance of RCRA Permit

Over 1,000 sites were listed on the NPL before State concurrence policy began in 1995. EPA does NOT need Governor Christie’s permission to its the Dupont site

Disgusted by exclusion from cleanup decisions, lax oversight by NJ DEP, and the slow pace of cleanup, residents of Pompton Lakes have waged a campaign to pressure EPA to list the Dupont site as a Superfund site. More than 10,000 people have signed a petition in support of their efforts.

The campaign began when residents learned that the Dupont site scored an extraordinarily high 70 on the EPA’s Hazard Ranking Score (HRS) conducted by EPA back in 1982, a fact that EPA publicly denied and was withheld from residents for over 2 decades.

And the site was scored 70 WITHOUT considering indoor toxic vapor intrusion risks at over 450 homes.

A site qualifies for Superfund if the HRS exceeds 28.5 – so Dupont clearly qualified for Superfund listing a long time ago (Technically, it is important to note that the 1982 HRS was conducted before the 1988 NJ DEP ACO and current RCRA Corrective Action oversight began, so there was no excuse not to list the site long ago).

Residents have received support of Congressman Pascrell and Senator Menendez – Menendez wrote a strong letter demanding an EPA explanation of why they have not listed the site on Superfund given this HRS score. (see the wonderful press Menendez received for his efforts:  Superfund designation sought for Pompton Lakes pollution sites

For over 2 years, EPA has merely listened respectfully but not taken any action to list the site in lieu of relying on the RCRA program to manage the cleanup in partnership with NJDEP.

On August 7, 2012, this petition recently was delivered to Gov. Christie to seek his support.

In the latest move, residents had a meeting with EPA Regional Adminsitrator Enck on August 22, 2012.

For over 2 years now, since residents initiated this Superfund listing request of EPA, Enck repeatedly has said she would not list the Dupont site on Superfund “at this time”.

The “at this time” phrase has left the door open, raised expectations, and encouraged residents to spend time and energy in hopes of changing Enck’s mind.

EPA officials explicitly reaffirmed this “at this time” policy as recently as the August 1, 2012 RCRA presentation, where I asked them specifically about that.

Well, apparently, Enck’s mind is now made up – and it likely has been made up from day one.

If Enck is unwilling to fight internal EPA politics and Governor Christie, that is not a good indicator that she will be willing to take on Dupont and mandate a complete cleanup  in the upcoming final RCRA permit regarding the cleanup of the Lake (Acid Brook Delta).

The August 22, 2012 meeting notes indicate that EPA RA Enck said the following:

Ms. Enck responded with the fact that a Superfund designation has never happened in history without a Governor’s request. She also explained that some lawyers think it is possible to do this without the Governor’s request BUT she is not willing to be the first to do it. Going to war with the state over a Superfund designation is not going to get us results or cooperation. It has never been done before in the whole country.

[see graph above – more that 1,000 Superfund sites were listed before EPA “state concurrence” policy was adopted in 1995. Enck is wrong on facts and law.]

Ms. Enck’s EPA statement has now made it absolutely clear that EPA is putting politics before risks.

Enck’s comments prompted my letter below to her to clarify the issues that are so misleadingly summarized in that excerpt:

Dear Regional Administrator Enck –  I just received notes of your August 22 meeting with Pompton Lakes residents.

I would like to focus on point #4, which characterizes your response. If this summary is accurate, you must know that your comments were deeply misleading and the epitome of a lack of EPA leadership. Three quick points and a concluding observation:

1. At the outset, there is fundamental distinction between EPA initiating an NPL concurrence request to the Governor (which is how I read EPA policy), versus waiting for a State to take the initiative and ask EPA to list a site. The latter appears to be your policy approach in Pompton Lakes. The Governor of NJ would be hard pressed to publicly state a rationale for rejecting EPA’s request to list Dupont.

Have you written that letter to NJ Gov. Christie?

2. The “federalism” policy under Superfund (which is what you rely on and is now called State concurrence) originated in FY 1995 budget riders during the Gingrich 104th Congress and President Clinton’s political concession response in Executive Order 13132 (and yes, I still have my copy of Al Gore’s Report on “Reinventing Government“).

a. Congress has not attached similar budget language since FY 1996 (see below)

b. EPA has found that EO 13132 does NOT apply to NPL listing decisions (see below). 

c . Applicable EPA regulations (NCP – 40 CFR 300.425) vest the final NPL listing decision firmly and exclusively within EPA discretion and clearly emphasize risk as the primary basis for the exercise of discretion.

Those rules not only do not require state concurrence, they say NOTHING about that. The role of State’s in NPL listing is clearly circumscribed by the provision to allow exclusive NPL listing discretion (no HRS required) request role to a single site. While the rules put EPA in charge and are silent on a State role in listing, they do very clearly require state role on delisting. (see rule text)

Have you written a policy memo with recommendations to EPA HQ that lays out this legal and policy landscape, backed up with recent HRS scores for Dupont site?? 

I have praised you repeatedly, not based on personal knowledge of you or your work, but simply your affiliation with Eliot Spitzer.

Were Spitzer EPA RA, he surely would not unilaterally surrender to and be bound by the flawed political policy you defend. 

He would have gone to the matt with EPA HQ and he would have put NJ Gov. Christie in a box on this.

And, after having lost that battle, he would have been honest with the people who got screwed.

This is the kind of pushback you would have received had I been at that meeting.

Bill Wolfe

Sources:

Point #1

Point #2

Fed Reg./ Vol 77 No. 51/ March 15, 2012 (@ 15277)

“Executive Order 13132, entitled ‘‘Federalism’’ (see: 64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.’

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it does not contain any requirements applicable to states or other levels of government. Thus, the requirements of the Executive Order do not apply to this final rule.

The EPA believes, however, that this final rule may be of significant interest to state governments. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA therefore consulted with state officials and/or representatives of state governments early in the process of developing the rule to permit them to have meaningful and timely input into its development. All sites included in this final rule were referred to the EPA by states for listing. For all sites in this rule, the EPA received letters of support either from the Governor or a state official who was delegated the authority by the Governor to speak on their behalf regarding NPL listing decisions. 

Point #3 

Superfund: Overview and Selected Issues

“The decision to list a site on the NPL is ultimately at EPA’s discretion.” ~~~ link to Report & citation below – 40 CFR Part 300

Relevant excerpt