Murphy DEP Admits “Continuity With Christie DEP” On Dupont Toxic Fiasco

Acting Commissioner McCabe’s Testimony on Dupont Angers Pompton Lakes Residents

McCabe gave false testimony on a key legal issue

“misleading the Senate is disqualifying”

Although the Murphy DEP has declared “a new era in environmental protection“, I have been writing – citing several examples – about how many NJ DEP regulatory policies under Gov. Murphy’s Acting DEP Commissioner McCabe are virtually the same as the Christie DEP, amounting to policy continuity, not contrast, and certainly no “new era”.

Today, the DEP press Office admitted that.

In a killer story in today’s Record – Phil Murphy says DuPont pollution in Pompton Lakes still under review – the DEP press office said this:

When asked by The Record if McCabe could clarify her testimony, DEP spokesman Larry Hajna said McCabe’s remarks “stand for themselves” and mirror the longstanding policy that was undertaken during the Christie administration.

Wow. I wonder who will be shown the door: Hajna or McCabe.

But an even worse abuse was not mentioned in the Record’s otherwise superb story.

The fact of the matter is that McCabe misled the Senate Judiciary Committee in the first sentence of her reply to a question by Senator Smith requesting a status report on Dupont Pompton Lakes site. McCabe swore an oath to provide “complete” testimony. She simply failed to do so.

Echoing US Senator John McCain on CIA torture: misleading the Senate is disqualifying.

McCabe, an experienced environmental lawyer, mis-stated the legal basis of her own DEP’s oversight of the Dupont Pompton Lakes site. McCabe said this:

McCabe: Pompton Lakes is being handled as a Resource Conservation and Recovery Act corrective action cleanup. EPA and DEP have been working on it for years. It’s the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe’s false testimony on DEP’s legal powers to oversee Dupont site is shocking for an experienced lawyer.

It is true that the Dupont Pompton Lakes site is a federal EPA RCRA Corrective Action site. The RCRA Corrective Action program was established by Congress in RCRA amendments passed in 1984, known as “HSWA”.

However, NJ DEP oversight of the Dupont Pompton Lakes site is NOT conducted pursuant to the federal RCRA Corrective Action program. NJ has not sought and the US EPA has not delegated RCRA Corrective Action program to the State of NJ.

The NJ DEP oversight of the Dupont Pompton lakes site is pursuant to NJ State cleanup law and a 1988 Administrative Consent Order between NJ DEP and Dupont.

McCabe surely must know this. If she doesn’t, she is not competent. (I discuss the federal RCRA versus NJ State law issues in this post):

The Dupont site is jointly under NJ DEP and US EPA jurisdiction pursuant to federal law.

EPA oversees the Dupont cleanup under the Resource Conservation and Recovery Act (RCRA) as amended in 1984  “Hazardous and Solid Waste Amendments” (HSWA) “Corrective Action” program.

The RCRA/HSWA created a complex regulatory framework and cleanup program whose implementation can be delegated to States by EPA. However, NJ never sought EPA delegation of the Corrective Action program, instead relying on State law and the 1988 ACO.

I previously managed the NJ DEP HSWA Corrective Action program, so had front row seats to all this when it was going down.

I firmly believe that she intentionally misled the Senate Committee by creating the false impression that federal law governs the Dupont cleanup.

I believe that McCabe did that to evade responding to local residents, who have written McCabe to demand, among other things, that the NJ DEP revoke the 1988 ACO and assume control of the cleanup under NJ’s cleanup law known as the Spill Compensation and Control Act (Spill Act).

So, in addition to angering Pompton Lakes residents and confirming continuity with the Christie DEP policies, McCabe is guilty of misleading the Senate in her confirmation hearing testimony.

As US Senator McCain said, that should be “disqualifying”.

McCabe also made other misleading statements in her response to Senator Smith on Dupont.

McCabe said this:

It’s [RCRA Corrective Action] the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe knows that is not legally or practically true.

The polluters have far more control over cleanup decisions under RCRA. The EPA has far less power under RCRA. The public has far less involvement under RCRA.

McCabe’s statements comparing RCRA to Superfund also contradict her previous boss, EPA Region 2 Administrator Judith Enck and a former DEP site manager. The Record reported:

A federal regulator told The Record she pushed to have the DuPont site added to the Superfund list so it could receive more federal money and contractor support, enjoy potentially quicker approvals for cleanup measures, and take into account public input. But state and local political leaders, including Bob Martin, the state’s top environmental official under then-Gov. Chris Christie, blocked those efforts. 

“It always seemed to me that the company was trying to slow-walk the problem,” Judith Enck, former regional administrator of the federal Environmental Protection Agency during the Obama administration, said in a recent interview. “They worked hard to pay as little money as possible and stretch it out over a long period of time, and sadly I think they are succeeding at that.”

“I find it increasingly hard to believe that it has taken this long to do the work. If you are truly trying to protect human health” said FRANK FARANCA, A FORMER DEP OFFICIAL

And when was the last time you saw your local Congressman tour and RCRA site, like they do at Superfund sites? When was the last time the media wrote stories about RCRA sites like they do at Superfund sites?

McCabe knows all this, plus all about EPA legal powers under Superfund are stronger than under RCRA. She didn’t provide “complete” testimony and misled the Senate by omission and commission.

McCabe said this:

One of the early actions that they took was to move to put soil vapor extraction systems in to protect the homes that are over the plume because it is a plume of dangerous chemicals that’s coming out of the old plant there.

The Dupont cleanup has been under DEP jurisdiction since even before 1988. Prior to the 1988 ACO, DEP issued NJPDES discharge to groundwater permits to Dupont’s hazards waste impoundments (e.g. the shooting pond). DEP had jurisdiction over the Dupont site since the late 1970’s under NJ’s Solid Waste Management Act as well.

Dupont, NJ DEP, and EPA were aware of the vapor intrusion problem since at least 2000. But the vapor intrusion problem was not even disclosed to the public by Dupont, DEP and EPA until early 2008  and the vapor extraction systems, described by McCabe as an “early action”, were not installed until after that (2008 – 2010).

That’a 10 – 30 year delay – hardly the “early action” that McCabe describes.

If the Governor and McCabe are listening, as I wrote and the residents of Pompton Lakes have written McCabe to request, here is a path forward:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

What will Murphy do?

Now that he’s personally insinuated himself in the controversy and dropped the L bomb, the whole state is watching.