Dear Judy …. Great Expectations Dashed by Dupont

Judith Enck, EPA Region II Regional Administrator shows fish consumption warning of PCB toxic contamination of fish in Bound Brook, NJ (12/10/09) – Such Great Expectations!

[Update – preface.

I am including this confirmation from EPA, because this issue has generated confusion in some quarters with regard to point #6 below.

New Jersey has not received authorization for the corrective action provisions in RCRA section 3004(u) and the corresponding regulations at 40 CFR 264.101.  Because New Jersey has not received authorization for these provisions, and because they were promulgated under HSWA, EPA has the lead for addressing corrective action in New Jersey – see RCRA section 3006(g).  This EPA lead will continue until New Jersey receives authorization for those provisions. – ~~~ Wayne Roepe, US EPA  State Authorization Program – end update]

Dear EPA Regional Administrator Enck:

I’ve been working on you so long now, mind if I just call you Judy?

In case you missed it, I’m attaching a great profile on you from today’s Greenwire: Regional boss recycles everything – from orange peels to organs.

I loved the recycling stuff, but the part about the kidney donation was a little too much information for my tastes.

Anyway, I hope you don’t mind if I use this friendly opportunity to get down to business somewhat, and ask you a few questions (especially in light of your reported aggressive style and “frustration” with how polluters “slow walk” cleanups):

1.  What’s the status of Dupont’s request to increase the vapor screening criteria (in light of NJ DEP’s increase) ?

Given how substantive the impact of that change would be, will that request be proposed for public review, public hearings, and public comment as a formal RCRA permit modification?

Of course, I don’t need to remind you that EPA RCRA decisions are not bound by NJ DEP’s Guidance.

And just in case you didn’t know, we would strongly oppose that move.

At a minimum, approval of Dupont’s request would not only increase risks to the people exposed in Pompton Lakes, but it would set a horrible national precedent for EPA in terms of consideration of voluntary, informal, State guidance values in formal EPA regulatory RCRA decisions that impact human health.

2. Speaking of vapor intrusion:

Based on talking with an Inside EPA reporter yesterday, I understand that EPA HQ indicated that they would delay – and reconsider the need for – a previously scheduled “Advanced Notice of Proposed Rule-making” (ANPR) on including vapor intrusion as a risk factor in the CERCLA Hazard Ranking Score (HRS).

What’s up with that?

I had hoped that EPA Administrator Lisa Jackson’s involvement in the initial EPA proposal to revise the HRS to consider VI and her knowledge of Pompton Lakes VI risks would assure that the proposal would move forward aggressively.

(See January 31, 2011 Federal Register for that EPA proposal.)

3. What is the status of the revoked EPA Dupont final ABD RCRA Corrective Action permit for lake and downriver dredging , hot spot removal, and sampling of highly contaminated mercury sediments and impacted fish and wildlife?

• When will revised sampling and remedial plans be proposed for formal public review and comment?
• Has the US Fish and Wildlife Service formally consulted with the negotiated outcomes of the Dupont Environmental Appeals Board challenge? (e.g. sampling and remedial work plans, etc);
• Has EPA’s RCRA partner USFWS made progress in pursuit of collection or restoration of Natural Resource Damages?

As you recall, we previously objected strenuously to EPA’s use of the EAB process to renegotiate Dupont’s  RCRA Corrective Action regulatory requirements in the absence of public review and under the guise of legal proceedings and litigation threat.

4. Last we left it, you indicated that you would not consider listing Dupont PLW on the NPL “at this time”.

Have any facts on the ground since changed to alter your consideration?

5. If you will not consider Superfund listing, would you then consider RCRA enforcement action to compel cleanup, given Dupont’s RCRA permit litigation, cleanup delay, recalcitrance, and ongoing direct contact and human exposure?

Surely, imminent and substantial risks and extensive delays justify EPA enforcement sanction.

6. And if you remain unwilling to assume 100% EPA cleanup control via Superfund designation OR pull the RCRA enforcement trigger, would you at least  consider assumption of ALL site wide cleanup oversight under RCRA Corrective Action, given that the State of NJ has not been delegated the RCRRA Corrective Action Program by EPA, 30 years AFTER Congress passed the HSWA to RCRA?

7. Last: about all those EPA certifications to Congress about RCRA indicators that groundwater and human exposure were “under control”…. Perhaps I’ll lay low on that for now.

Other than that, I hope you are well and find the time for an extend weekend retreat to your upstate NY place.

I spent much of my youth on the Hudson River and know how grand “a paddle” on the river can be.

Your friend,

Wolfe