WolfeNotes.com

“no further public notice is anticipated regarding groundwater contamination.”

This key point got buried in a long rambling post about the history of the DEP’s ACO with Dupont, so I thought I’d make it a stand alone post.

Dupont’s own words prove that they’ve been trying to conceal massive groundwater contamination – which ultimately caused the current vapor intrusion problem – for over 25 years.

Here is the EPA 1992 RCRA Corrective Action Permit it issued to Dupont – it included Dupont (and all public ) comments and EPA’s response to Dupont’ comments.

See Dupont comment #3 of page 4. This is what Dupont wrote:

The final paragraph in the [EPA RCRA permit] should clarify that no further public notice is anticipated regarding groundwater contamination.”

Let’s repeat that – Dupont demanded that:

no further public notice is anticipated regarding groundwater contamination.

No further public notice means that the public would not be made aware of the groundwater contamination and EPA’s efforts to compel Dupont to clean it up.

As my Grandfather used to say: How do you like ‘dem apples?

Thankfully, EPA rejected Dupont’s demand: (page 5)

The Dog Ate the Public Hearing Transcript

If DEP can’t get the little stuff right, how can they manage complexity?

[Update below]

Six months ago, the DEP held a public hearing on a draft permit to allow Dupont (Chemours) to conduct a controversial groundwater cleanup pilot study (that’s no typo: yes, Dupont is conducting a pilot study, 40 years after the start of the cleanup process).

By way of background – DEP regulations do not require and DEP initially did not require that a public hearing be held on this controversial Dupont pilot study. Only strong demands from residents of Pompton Lakes persuaded DEP to hold a public hearing.

Now, 6 months later, after getting multiple requests from the public for a copy of the public hearing transcript for DEP’s September 26, 2017 public hearing on the controversial Dupont (Chemours’) Application for New Jersey Pollutant Discharge Elimination System (NJPDES) Discharge to Ground Water Permit by Rule, the DEP has admitted that it can not provide one.

The dog ate the transcript!

Seriously, according to a March 15, 2018 email from Wayne Howitz, Assistant Director of DEP Remediation Oversight Element to people who requested a copy of the transcript – DEP is asking that they retroactively provide accurate or additional comments!:

Review of the public hearing transcript has revealed that it may not have captured some of the comments made during the testimony phase of the public hearing.  To ensure that we address your concerns and questions about the Permit by Rule Application, I have attached a copy of the transcript to this e-mail.  I am asking that you review the statements attributed to you in the transcript on pages 25-27, and let us know if it accurately reflects your comments.  If you believe your testimony was not fully captured, please provide us with written comments to accurately reflect the comments you made at the hearing.  If you believe the transcript accurately captured your comments, we would appreciate it if you would let us know that you approve the statements attributed to you in the transcript.

DEP must know that it doesn’t work that way.

So, I fired off this letter to DEP to demand that another public hearing be held so that the public can be provided their full due process rights and a complete and accurate administrative record is developed.

I urge all those who attended and/or testified at the public hearing to send a similar demand to DEP: Whether or not you write, DO NOT COMPLY WITH DEP’S REQUEST (I removed the DEP staffer’s name who sent the email to avoid embarrassment – and could you imagine the heads that would roll at DEP if DEP lost Dupont’s comments?)

Dear DEP:

A March 15, 2018 email from you to persons that testified at the subject public hearing (see below) was provided to me.

The Administrative Procedures Act, DEP regulations, and fundamental principles of Administrative Law require that a verbatim transcript of the public hearing be certified by a licensed stenographer. A verbatim transcript is required for, among other things, review by the DEP hearing officer, review by the DEP Commissioner, and review by an  Administrative Law Judge and/or judicial review by a law Court to review the complete and accurate administrative record.

The Department has failed to comply with basic formal public hearing requirements. As a result of that failure, the public has been denied full due process rights; the stenographer and the DEP Hearing Officer can not certify the public hearing; the DEP can not respond to public comments; and the OAL and law courts can not conduct judicial review of the facts.

Therefore the administrative record is flawed and must be remedied by holding another public hearing.

I demand that another public notice, public comment and public hearing be held in the subject matter to resolve this error.

Respectfully,

Bill Wolfe

 If DEP can’t get the little stuff right, how can they manage complexity?

[Update – 3/20/18 – A resident of Pompton lakes – who shall remain nameless here – apparently taped the DEP public hearing in question and provided that tape to DEP. She/he is now asking if DEP can use that to write the official hearing transcript. My reply:

No, DEP can’t use a citizen’s audio – do yo want DEP using a Dupont audio? Do you want DEP allowing Dupont to expand upon and rewrite their testimony like they did to “our side”?

What’s good for the goose is good for the gander.

The DEP hearing officer must certify the hearing record and the stenographer must certify the verbatim transcript – just like an accountant or lawyer or Notary Public or Court reporter.

WTF is XXXXX thinking? Why is she/he willing to play games with DEP all of a sudden?  ~~~ end update]

A Brief Policy History And Outline Of a Path Forward

NJ DEP Must Assume Control From Trump EPA

DEP Must Enforce State Cleanup Laws

Wednesday’s Bergen Record reported that during an appearance on an earlier WNYC Brian Lehrer radio show, NJ Gov. Murphy compared Pompton Lakes NJ to Love Canal, NY, see:

• Phil Murphy compares DuPont pollution in Pompton Lakes to Love Canal; says DEP is investigating

“This is a really tough situation, and it’s one of these things that brings back memories of Love Canal, which are two words no one wants to hear again,” Murphy said during an appearance on WNYC radio.

But, after dropping the “L” bomb, all Murphy could muster is that DEP is investigating?

Are you kidding me? Does anyone brief Murphy before he opens his mouth?

NJ DEP has overseen Dupont’s “cleanup” of the Pompton Lakes site for over 40 years – importantly under a 1988 “Administrative Consent Order” (ACO) entered into under NJ State law.

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.

DEP leaders chafed at EPA RCRA oversight (which they dismissed as “bureaucratic bean counting”) and opposed the stringent RCRA/HSWA regulatory mandates that are implemented via prescriptive federal rules, strict standards, and permit procedures. There was lots of formal public involvement in an EPA RCRA permit program, and both DEP regulators and major corporate polluters hated that accountability, especially for highly controversial toxic site cleanup decisions, where community pressure drives more expensive and protective cleanups.

Instead, for political and economic more than scientific or public policy reasons, DEP leaders favored the more flexible and pro-polluter framework under NJ State laws and DEP oversight.

So, to avoid EPA RCRA oversight, to protect politically influential NJ industrial polluters from costly EPA driven cleanups, and to eliminate public participation and shield DEP bureaucrats and polluters from community demands for complete cleanup, NJ DEP created the “Voluntary Cleanup Program” (VCP) as an alternative to the EPA RCRA Corrective Action program (and prior State DEP enforcement documents like Administrative Orders and Spill Act Directives).

The VCP was implemented by DEP via flexible “Administrative Consent Orders (ACOs) instead of the prescriptive and very public RCRA permit process established pursuant to federal EPA regulations and stringent standards. The DEP used the VCP and ACO mechanism as evidence to argue to EPA regulators that they were making progress in cleaning up federal RCRA sites and had an enforceable program in place. The DEP urged EPA to back off federal RCRA oversight and defer to DEP.

Dupont loved the DEP’s ACO – they wanted to work exclusively with DEP and keep pesky EPA bureaucrats and the public completely out of the loop.

Here’s what Dupont wrote to EPA as comments on the EPA 1992 RCRA permit (links and analysis):

We believe that the [EPA RCRA] permit, if finalized, would be a major setback in our effort to successfully complete our site cleanup effort.

We are well into the investigation and remediation of [the site]. This work began in 1988, and has proceeded under the terms of an Administrative Consent Order (ACO) with the NJ DEP. The ACO clearly defines such [cleanup] requirements as compliance schedules.

The  [DEP ACO] has provided a clear focal point for the regulatory coordination of the project , and we believe that it has been very effective and efficient.

… any changes in our existing [DEP ACO] approach would add complexity and duplication with no benefit to the public or environment.

The final paragraph in the [EPA RCRA permit] should clarify that no further public notice is anticipated regarding groundwater contamination.”

[Note: “No further public notice” proves that Dupont has been trying to conceal the groundwater contamination from the public since 1988. FRAUD. CONSPIRACY.]

At the time, EPA and US Justice Department lawyers raised concerns that DEP was creating a “shield” to federal enforcement and frustrating enforcement of RCRA/HSWA requirements. They threatened to withhold federal EPA RCRA grant money to NJ DEP. But the EPA and US Justice Department lawyers lost those debates to lobbying by States and industry.

As a result, since the late 1980’s, EPA has deferred to NJ DEP on most critical aspects of the Dupont cleanup, including groundwater cleanup and the vapor intrusion caused by contaminated soil and groundwater.

While EPA was deferring to NJ DEP here in NJ, a massive national chemical industry lobbying campaign weakened the federal EPA RCRA/HSWA requirements, put EPA regulators on a short leash, and effectively put industry basically in charge of their own cleanups.

Meanwhile, at the State level, on May 7, 2009, Governor Jon Corzine signed the Site Remediation Reform Act, (SRRA) N.J.S.A. 58:10C-1 et seq. (“SRRA”) into law.

The SRRA privatized and deregulated the NJ toxic site cleanup program. The law put consultants who work for polluters like Dupont in charge of toxic site cleanup process, with very little – if any -oversight by DEP or transparency and public accountability to the community. While SRRA technically does not apply to federal RCRA sites, it has had a dramatic impact on DEP’s toxic site cleanup program, vastly worsened DEP’s historical deference to consultants for polluters, and further weakened DEP “culture”, particularly regarding enforcement.

But while the situation was bleak at NJ DEP, things at the federal EPA level improved slightly as a result of the demands by the people of Pompton Lakes, who organized a public campaign to pressure EPA to list the Dupont site on the Superfund NPL.

The EPA RCRA and DEP ACO failures to force Dupont to fully cleanup the site then prompted many in the community to seek the EPA federal Superfund program as a solution, instead of RCRA/HSWA.

In theory, for reasons I won’t go into here but have written about in detail, Superfund is a far better program for the people of Pompton Lakes, compared with the industry neutered and dominated RCRA program.

Under the Obama EPA, Region 2 Administrator Enck began to expand EPA oversight under RCRA/HSWA, but never really pulled the trigger and continued the joint management and historical deference to DEP.

But the Obama EPA stuck with RCRA/HSWA and EPA failed to list as Dupont Pompton Lakes as a Superfund site. EPA Region 2 Administrator Enck failed to recommend to EPA HQ that the site be listed on the Superfund NPL. Enck deferred to NJ Gov. Christie.

So, especially considering that the Obama EPA rejected Superfund, in going forward, we now must consider that Trump’s EPA Administrator Pruitt is notoriously pro-chemical industry and corrupt.

He would never support Gov. Murphy’s request to list the site on the National Priorities List (NPL) for Superfund cleanup. Murphy would look naive in even making the request of Pruitt and he would be accused of pointing fingers instead of solving problems under his own control at NJ DEP.

And even if Pruitt were do agree to a Murphy request to list Dupont PL on the Superfund NPL so, it would only be to protect Chemours/Dupont corporate interests, see:

Trump nominates Dow Chemicals lawyer to oversee EPA toxic waste program

WASHINGTON (Reuters) – U.S. President Donald Trump on Friday nominated a Dow Chemicals lawyer to head-up an Environmental Protection Agency unit that oversees hazardous waste disposal and chemical spills from toxic “Superfund” sites.

Trump named Peter Wright as assistant administrator for the Office of Land and Emergency Management (OLEM). Wright served as Dow’s managing counsel for environmental health and safety and provided the company legal support for Superfund and other remediation sites, according to the EPA.

Dow Chemical and Dupont have merged:

DowDuPont Inc. is an American company formed after the merger of Dow Chemical and DuPont on August 31, 2017. It is the world’s largest chemical company in terms of sales

While it is obvious that a Pruitt EPA Superfund program under Dow’s control would be bad for Pompton Lakes, for those that like to get in the legal and financial weeds, you can sort out all that by reading the various Dow Dupont Chemours financial and legal documents.

So, with all that history and the current Trump – Pruitt EPA reality in mind, what should Gov. Murphy do?

Here’s a to do list:

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.

After Rubber Stamping Pollution Settlements, More Continuity With Christie

Harkens back to a “monumental strategic error”- “collateral damage of open space”

Murphy’s version of Obama’s “look forward not back”?

NJ Spotlight reports today that NJ Gov. Murphy’s first budget – “how the governor plans to translate campaign promises into policies and spending priorities“ – proposes to divert $136 million of Clean Energy Funds to close budget shortfalls, see:

• MURPHY DIVERTS $136M IN CLEAN-ENERGY FUNDS TO HELP BALANCE BUDGET

Meet the new boss …

As we’ve written, after all the “green” rhetoric, Murphy and his DEP Commissioner nominee have been a huge disappointment thus far.

While Acting Commissioner McCabe seems to be hiding under her desk in Trenton – is she trying to avoid Judy Yaskin’s fate? – Gov. Murphy has not rescinded Gov. Christie’s anti-regulatory and privatization Executive Orders (#1-#4; #17), but instead has shown a disturbing continuity with some of the worst Christie environmental policies, including:

•  corporate polluter friendly NRD enforcement settlements;
•  State Parks concessions & funding;
• continuation of DEP Press Office fact free propaganda on alleged improvements in water quality;
• promotion of feel good and counter-productive voluntary “stewardship” policies;
• questionable DEP appointments, including Senator Sweeney’s aid as DEP Chief of Staff and an ineffective former Corzine aid as Deputy Commissioner;
• complete failure to contrast his DEP policy agenda with Christie’s and outline necessary reforms; and
• delays in confirmation of DEP Commissioner and inability to purge Christie holdovers and install his own policy team (while dissing demonstrated NJ environmental leaders)

[Strong reforms and very good people are needed at DEP, to reverse this unfortunate reality: Encap Corruption Has Been Institutionalized at DEP]

It all reminds me of President Obama’s’ “look forward not back” approach, which led to continuity with controversial Bush Administration policies on national security, accountability for torture & CIA black sites, and Wall Street’s crimes and financial bailout.

But getting back to the clean energy diversion issue: During the 2017 Gubernatorial campaign, Murphy slammed Gov. Christie’s diversion of some $1.5 billion in clean energy funds.

Murphy’s energy platform pledged to end the practice and increase investment in energy efficiency and renewables.

Murphy Energy and Environment Transition Report vigorously opposed these diversions:

Continuity with Christie corporate friendly lax DEP enforcement policy

AG rubber stamps Christie Deals BEFORE legal & policy review of DEP NRD program

Deals call into question Murphy’s promise to restore NJ environmental leadership

[Update – 3/14/18 – even though the public comment period is closed and the Court has approved these settlements as final, to illustrate these problems, today I filed an OPRA for the following documents. We’ll keep you posted with what we find:

I request copies of the Natural Resource Damage Assessments DEP conducted for MTBE injuries to groundwater in support of the NRD Settlements that were announced by Attorney General Grewal’s 3/12/18 press release, including Sunoco, BP, Amoco, Atlantic Richfield, Shell, and all others. ~~~ end update 

The day before Gov. Murphy’s first budget address – when he surely knew the State House press corps would be focused exclusively on that – Murphy’s Attorney General  Grewal quietly announced a controversial “Natural Resource Damage” (NRD) settlement with Big Oil (Sunoco, BP, Amoco, et al).

Curiously, the AG’s press release did not provide a link to the text of the Settlement documents, which is really disturbing, given that law requires a public comment period and all prior DEP NRD settlements have been posted for public comment. (But, emulating Trump, the AG’s release did provide a link to the AG’s Twitter feed. What bullshit!)

[Update – clarification: the AG’s press release was issued after the public comment period closed:

Notice of the three proposed settlements was previously published in the New Jersey Register. All three settlements were subject to a public comment period, and all three have been reviewed and approved by the U.S. District Court for the Southern District of New York. ~~~

That means that they were Christie negotiated and proposed settlements and are final. So why issue the Murphy administration celebratory press release now after the fact? The AG is effectively praising the Christie AG and DEP, so the whole problem is actually worse than I thought. The Murphy administration is not reluctantly accepting the Christie deal in anticipation of reforming the NRD policy and program. The are praising the existing Christie program and have no intention of any reforms to strengthen it.~~~ end update]

In addition to the budget diversion, AG Grewal on the same day issued a press release about his opposition to the Trump Administration’s off shore drilling plans. He was likely seeking to divert the depleted environmental press corps.

The attempted news management didn’t work, at least at NJ Spotlight, who reports today (read the whole story)

The Murphy administration yesterday said it has settled cases with three oil companies who have agreed to pay nearly $200 million for polluting water with a potential human carcinogen.

Attorney General Gurbir S. Grewal announced approval of draft settlements reached by the Christie administration to resolve natural-resources damage lawsuits against the three defendants involving contamination of groundwater with an additive to gasoline.

Two hundred million dollars is a betrayal of the public and pennies on the dollar of the actual “natural resource damage” caused by these billion dollar corporate polluters.

The Christie administration faced lawsuits and was pilloried by the public, media, legislators, and environmental groups for their pennies on the dollar settlement of the DEP’s $8.9 billion NRD Exxon claim.

So surely, Gov. Murphy, AG Grewal, and Acting DEP Commissioner McCabe all had to know that the NRD issue was controversial and that the Christie Administration’s NRD settlement policy was polluter friendly, and warranted legal policy review and regulatory reforms at DEP.

The MTBE litigation has been ongoing for over a decade – the AG couldn’t wait another few months for reforms to be put in place?

Worse, AG Grewal had to know that the underlying flaw in DEP’s NRD program was LEGAL and that Christie AG  settled the Exxon NRD case because of what he saw as “litigation risk”. (sorry, the State of NJ’s links to the Christie AG settlement and Judge Hogan’s opinion are no longer working.)

As the NJ Law Journal reported, the lack of DEP NRD regulations created litigation risk that drove the pennies on the dollar settlement:

Murphy’s Acting DEP Commissioner McCabe is an attorney and former US Justice Department natural resource lawyer, so surely she understands the legal and policy weaknesses of the Christie NRD legal policy and DEP program.

So why on earth did Murphy AG Grewal (and DEP McCabe) rubber stamp the Christie draft settlements BEFORE conducting a policy review and public process of reform, including promulgating DEP NRD regulations that the courts have found necessary?

Former DEP Commissioner Brad Campbell entered into a settlement agreement to promulgate NRD regulations years ago (but never honored his legal commitment to the court).

As the NJ Law Journal reported: