Dupont Pompton Lakes Site of National Significance

EPA Decisions There Would Set Precedents That Impact Thousands of Sites Across the US

EPA is folding to corporate power and political pressure from States

There was an important discussion yesterday among Pompton Lakes residents that I’d like to expand on today (a reporter from the Bergen Record was copied on the emails, so I am not divulging any confidences).

The conversation began when a plume resident complained to EPA Region 2 Administrator Judy Enck about EPA’s failure to attend and support the “real community advisory group” (CAG).

A CAG is a feature of the Superfund program that Regional Administrator Enck has imported into the RCRA program due to the historic exclusion of the Pompton Lakes community from cleanup decisions, which were driven by Dupont and signed off on by EPA and DEP behind the scenes.

The resident wrote to Enck:

As a Pompton Lakes Plume Resident I find it totally unacceptable that the EPA did not send a representative to our last Pompton Community Advisory Group Meeting on October 17, 2011.

The facts are as follows:

A) The EPA always manages to have at least several or more representatives at the old CAG group (that we originally abandoned after our community leaders were allowed to be ousted).

B) The records show that we have at least 10X more community attendance than the old abandoned CAG and WE are the true public venue for our real plume residents.

C) Sending a representative to every meeting (as our Senators and Congressman regularly do) is a prerequisite in forming a real working relationship with our community.

Seemingly baffled by EPA’s failures, in reply my friend Bob Spiegel of Edison Wetlands weighed in in an attempt to explain and persuade EPA to change course. Bob replied:

I am not sure why EPA is diverting precious and limited resources to a CAG that has almost no attendance and has no community support. The USEPA does not operate like that in other communities and I am at a loss to explain why the EPA is not fully supporting the Pompton Lake Community Advisory Group. I would invite you and others in the community to come to other CAGs in NJ and even NY to see how EPA operates at those CAG’s. It is much different than the Pompton Lakes CAG.

I’d like to shed some light on external reasons why I think EPA has failed to support the community’s efforts to hold Dupont accountable for a 25 year long failure to cleanup massive toxic pollution they caused.

Basically, the Dupont site raises major policy and regulatory issues of national significance that are being watched closely by politically powerful polluters.

These are the same politically powerful polluters and economic elites that forced President Obama to back down and withdraw the EPA’s proposed new ozone standard, that have blocked progress on global warming, and that have stymied EPA efforts to protect public health from air, water, and toxic chemical pollution.

Here is an outline of those national issues and how they relate to Dupont Pompton Lakes pollution and pending EPA decisions.

For each individual regulatory issue, EPA is facing enormous behind the scenes political pressure from polluters and their friends in Congress and the White House.

EPA is not eager to have a spotlight shown on this behind the scenes debate and would like to avoid media and public scrutiny on any single one of these issues.

Yet all of them are raised in Pompton Lakes:

1. Vapor Intrusion

Pompton Lakes is one of the worst – if not the worst – vapor intrusion site in the Country. Over 450 homes are impacted. Elevated cancer rates have been found and may be related to the pollution.

Plume residents – with the support of NJ Senators Lautenberg and Menendez and Congressman Pascrell – have demanded that the Dupont site be placed by EPA on the Superfund “National Priorities List” (NPL)

Earlier this year, EPA proposed a new policy to consider vapor intrusion as a factor in listing sites on the Superfund “National Priorioties List” (NPL).

That EPA proposal was strongly opposed by polluters, because it would add hundreds – perhaps thousands – of additional sites to the Superfund list, and cost industry billions of dollars in new cleanup costs and legal liability associated with vapor intrusion.

The Dupont PL site is the poster child in support of EPA’s proposed new Superfund listing policy.

In addition to the power of chemical giant Dupont, any move EPA makes regarding Superfund and/or vapor intrusion at this site is being closely watched by industry lawyers, scientists, and lobbyists.

EPA is not eager to face public scrutiny on how they’ve responded to vapor intrusion risks.

2. RCRA Corrective Action

The 1976 “Resource Conservation and Recovery Act” (RCRA) and the 1984 “Hazardous and Solid Waste Amendments (HWSA) to RCRA are the two most important national environmental laws that the public has never heard of.

There are orders of magnitudes more RCRA regulated industrial facilities, toxic wastes, and toxic sites than Superfund sites. The risks to human health and the environment from RCRA regulated hazardous wastes and contaminated sites far exceeds the risks from Superfund sites. RCRA costs industry orders of magnitude more to comply with than Superfund.

(take a look at NJ’s RCRA Corrective Action facilities)

In the 1984 HWSA, Congress established a toxic site cleanup process under RCRA, known as the “Corrective Action” program. The RCRA CA program was modeled on the Superfund program, but has significant differences, e.g. RCRA CA  is less transparent, provides for far less public involvement, and is subject to stronger industry influence, compared with Superfund.

Yet, for the most part, the public and the press never heard of  RCRA and Corrective Action – they operate with little accountability and fly under the media and public radar screens.

The RCRA programs are enormously bureaucratic and complex, and few environmental groups get involved.

Polluters like this game.

So, it is no surprise that industry exerts tremendous influence on EPA RCRA activities.

The Dupont site is being overseen by EPA Region 2 under the RCRA Corrective Action program.

EPA is not eager to submit their RCRA Corrective Action Program to public scrutiny, as that would expose, at best, spotty performance, and major failures in regulatory oversight.

Again, any move by EPA at the Dupont site is under a national microscope by industry insiders and subject to enormous industry pressure.

3. RCRA Superfund “deferral policy”

In 1995, EPA enacted a policy under RCRA and Superfund that basically says that they will not list RCRA sites – regardless of risks – on the Superfund NPL.

This is an informal EPA policy – not legal mandate – under RCRA. Both RCRA and Superfund are silent on sites with RCRA overlap.

Thousands of RCRA sites pose equal or greater risks to human health and the environment than Superfund sites.

The deferral policy was adopted more than a decade ago, at the request of industry, who prefer to work the quiet inside game with EPA under RCRA, rather than the far more publicly friendly and high profile Superfund program.

This EPA deferral policy explains why EPA rejected residents demands to list the Dupont site on the NPL.

Obviously, EPA is not eager to talk about all this, because it reopens a debate industry won many years ago, and exposes EPA to public criticism.

4. RCRA Enforcement

Dupont was issued a RCRA Corrective Action permit by EPA back in 1992. We have asked EPA to enforce that permit.

The Dupont site has not been cleaned up under that RCRA permit, and off-site releases and human exposures – EPA’s performance metrics – are not under control.

EPA issued a national RCRA enforcement strategy – several of the policies in that strategy relate to the Dupont site.

There are many controversial enforcement related issues raised by that permit, many of which also have national significance from legal and policy perspectives (including who knew what when about vapor intrusion and whether Dupont complied with notification and disclosure requirements.

Again, polluters and EPA do not welcome scrutiny of EPA’s lax RCRA enforcement policy and practice.

5. Superfund Listing policy – State concurrence

EPA quietly adopted a little known “state concurrence” policy that says that EPA will not list a site on the NPL – regardless of its HRS score and risks posed – without the support of the Governor of the state.

THIS IS AN INFORMAL EPA POLICY BASED ON POLITICS, NOT LAW. THE SUPERFUND LAW VESTS EPA EXCLUSIVELY WITH SUPERFUND NPL LISTING POWER AND DOES NOT REQUIRE STATE CONCURRENCE. (apologies for the caps, but I can’t emphasize this enough!)

NJ Governor Chris Christie does not support – and would oppose – EPA listing of the Dupont Pompton Lakes site on the Superfund NPL.

Enck & EPA are not eager to publicly defend this policy or to get into a fight with NJ Gov. Chris Christie.

This debate would reveal that politics – as much or more than science or law – governs EPA Superfund listing policy.

6. Federalism – EPA oversight of delegated State programs

Like most national environmental laws like the Clean Air and Clean Water Acts, the RCRA and HSWA Corrective Action are federal programs that are delegated by EPA to states to implement.

EPA works with states to enact equivalent state regulations, and then funds and oversees State implementation. EPA has authority to not only hold states accountable to enforce federal requirements, but can step in and directly enforce federal requirements.

While NJ was delegated the basic RCRA program, more than 27 years after Congress enacted HSWA and the Corrective Action program, NJ still has not received delegation of the HSWA programs, including Corrective Action.

EPA and NJ DEP are not eager to defend this record.

So there you have it – this explains the delays and lax oversight at the Dupont Pompton Lakes site.