WolfeNotes.com

Idaho Case Echoes US Fish & Wildlife Service and EPA Decisions in Dupont Cleanup

[Update: 2/27/12 – Record’s Suburban Trends writes the story – headline sucks, but the content is not bad:

US Fish and Wildlife Service recommends more testing in Pompton Lakes

Bill Wolfe, of Public Employees for Environmental Responsibility, said, “This is a highly significant move on the part of the FWS and it completely undermines the prior approval because of the statements it makes about the DuPont science, which it calls ‘antiquated and not adequately protective.’

“DuPont has consistently told the public that its cleanup plans reflect sound science and the DEP (NJ Department of Environmental Protection) rubber-stamped that cleanup plan despite the fact that a DEP scientist raised objections,” said Wolfe.

“It is very important that the FWS recommendations be incorporated in the new cleanup plan that the EPA is going to be drafting and that the cleanup plan completely cleans up the site,” Wolfe added. ~~~ end update]

The New York Times ran an important story today about a dispute in Idaho – a complex science and regulatory policy story made possible only by the visibility and public outrage associated with the discovery and photographs of two headed trout (see: Mutated Trout Raise New Concerns Near Mine Sites (please read the whole thing).

The Times‘ two headed trout selenium story has numerous parallels and direct relevance to the Dupont Pompton Lakes NJ site and proposed mercury cleanup plan (and there is selenium in addition to mercury and lead present in Pompton Lake sediments).

In a stunning coincidence, the Times’ story was released just days after we wrote about some of those same issues and the US Fish & Wildlife criticized the science supporting the Dupont cleanup plan, see:

• Toxic cleanups designed to protect wildlife protect people too
• US Fish & Wildife Service Blasts Dupont Science on Mercury Cleanup Plan

Maybe the Times’ reporting can embolden an intrepid NJ journalist to write the story here.

So let’s tee that story up for them and look at the parallels:

I) Bending the Rules – abuse of waivers and exemptions

At the outset, we need to keep in mind that this debate was triggered by the mining industry’s bold attempt to circumvent compliance with regulatory standards via an exemption, falsely claiming that selenium was safe:

… the company’s report concluded that it would be safe to allow selenium – a metal byproduct of mining that is toxic to fish and birds – to remain in area creeks at higher levels than are now permitted under regulatory guidelines. The company is seeking a judgment to that effect from the Environmental Protection Agency.

Industry false claims and waiver and exemption abuse are rampant in NJ, especially under the anti-regulatory Christie Administration who has proposed a total waiver rule.

II) Scientific Integrity – Biased Industry Studies Corrupt Science

Industry has mounted a systematic attack on science and the regulatory process.

We have written in detail about how that game is played in NJ, e.g. see:

• Industry Moves to Take Over Jersey Eco-Science
• Dupont: Doubt and Intimidation are Their Product
• Mercenaries Now Fully In Charge of Toxic Site Cleanup
• Political Pressure on DEP: How the Game is Played
• NEW JERSEY DEP ABANDONS TOUGHER TOXIC STANDARDS – Bald Eagle and Peregrine Falcon Warnings on Mercury, DDT and PCB Unheeded

Just last week, the Union of Concerned Scientists issued a major must read report outlining industry’s strategy and tactics: How Corporations Corrupt Science at the Public’s Expense.

The NY Times writes about how that occurred in Idaho:

The service’s review, released last month, was scathing, describing the study as “biased” and “highly questionable.” Joseph Skorupa, the service’s selenium expert, cited a “lack of valid field controls” and the absence of any analysis of the selenium’s impact on reptiles, birds or the 12 other types of fish in the creeks’ waters. Most troubling, he wrote, was that the researchers systematically undermeasured the rate of serious deformities in baby fish, which were pictured only in an appendix.

Dr. Skorupa wrote that the Simplot report did not provide raw data that would enable him to independently calculate deformity rates. He estimated, however, that the level of selenium that Simplot says causes a 20 percent rate of deformity actually causes a deformity rate of a minimum of 70 percent of all fry. Asked about the wildlife service’s findings, Alan L. Prouty, Simplot’s vice president for environmental and regulatory affairs, declined to comment beyond saying that the agency’s review was “totally outside the regulatory process.”

That last quote by Mr. Prouty is highly significant: it shows that industry is trying very hard to keep US FWS objectives, science and experts out of EPA regulatory decisions. We experienced the same thing in Dupont case. Efforts were made to keep US FWS in the dark and then limit the scope of their review. EPA still has not decided how to respond to USFWS recommendations and incorporate them in RCRA permit decisions at the Dupont site.

III) Sensitivity of Wildlife to toxics

I don’t have a photo of a two headed trout to drive the story, but there is mounting evidence regarding adverse impacts of toxics on wildlife.

Confirming the point I wrote about just days ago about wildlife being far more sensitive to toxic chemicals at lower levels, the Times reported:

The metal can also affect human health, with symptoms including hair and fingernail loss and numbness in fingers and toes. It has been regulated in drinking water since the 1970s.

But the metal is far more dangerous to aquatic egg-bearing animals like fish, birds and reptiles  – a fact revealed in the early 1980s when excessive selenium in agricultural runoff resulted in fatal deformities in waterfowl at the Kesterson Reservoir in California, including missing eyes and feet, deformed beaks, legs and wings, and protruding brains.

Adverse effects occur at extremely low levels. There are numerous chemical pollutants that are not currently regulated that raise toxic concerns and many of the toxic effects of those chemicals are not considered in setting regulatory standards (e.g. endocrine disruption; developmental, reproductive, and behavioral effects).

So there are major gaps in the regulatory protection fabric.

IV) Implications for regulatory standards

The Times story highlights a huge regulatory debate going on behind closed corporate and government doors.

Many regulatory standards are outdated or based on flawed science and do not protect public health and the environment. EPA is reluctant to enforce federal standards on States and State programs do not have the resources or incentives to set their own standards given lax and lagging federal standards.

Yet, industry has a virtual political blockade on new regulations:

The implications extend beyond Idaho. Selenium is a pollutant at 200 of the 1,294 locations designated by the federal government as toxic Superfund sites. And even though its effects on wildlife have been known for decades, federal agencies have not been able to agree on what level should be prohibited. The E.P.A. is currently reviewing federal selenium rules.

In 1987, the E.P.A. recommended that states set limits for selenium at five parts per billion as measured in the water. (States may adopt tougher limits, but if they prefer less restrictive standards they must submit studies and seek approval from the agency.)

Since then, scientists have recommended that stricter limits are needed, but the rule has not been reset. While federal agencies agree that measuring levels of selenium in fish tissue is more telling than the amount in water, after that the consensus breaks down on what level constitutes a safe standard.

Industry is blocking updating standards to reflect current science in order to reduce their compliance costs for polluting activities.

It’s as simple as that.