EPA Enforcement Strategy Targets “Large, Complex Cases” To Set National Precedent For Large Facilities

Today,  US EPA released a new “Strategic Plan” to guide the agency over the next 4 years.

The EPA Plan sets forth a series of strategic programmatic goals and management performance metrics.

Having just gotten off the phone with my friends in Pompton Lakes who have been battling Dupont to cleanup their site for over 25 years, this one caught my eye:

• Cleaning Up Communities and Advancing Sustainable Development: EPA protects communities by requiring responsible parties to conduct cleanups, saving federal dollars for sites where there are no other alternatives. Aggressively pursuing these parties to clean up sites ultimately reduces direct human exposures to hazardous pollutants and contaminants, provides for long-term human health protection, and makes contaminated properties available for reuse.

And this one:

EPA will continue to focus federal enforcement resources on the most important environmental problems where noncompliance is a significant contributing factor, and where federal enforcement attention can have a significant impact. This strategy means EPA’s top enforcement priority will be pursuing large, complex cases that require significant investment and a long-term commitment. We anticipate this strategy will result in a higher level of public health protection because of the significant impacts associated with the large cases, and the precedent they set for performance of large facilities across the country.

Our commitment to the largest most complex cases that have the biggest impact necessarily means that we will be doing fewer cases overall. This approach best protects public health not only by addressing the most serious pollution problems, but also by directing EPA’s resources to important cases that may not be addressed by states because the environmental and human health risks or the patterns of noncompliance are broad in scope and scale such that EPA is best suited to take action.

If EPA is looking for a large complex site where enforcement can have a significant impact and set national precedent for performance at large facilities, I can think of no better target than Dupont Pompton Lakes for RCRA Corrective Action enforcement.

If EPA took aggressive enforcement action there, there would be major national ramifications across several key EPA program areas, including Superfund, RCRA, “vapor intrusion”, and the Clean Water Act.

The Dupont site is one of the nation’s largest “vapor intrusion” cases, with over 450 homes poisoned by off site releases of toxic chemicals from the Dupont facility. Those vapors have been linked to statistically significant higher cancer rates by ATSDR.

Over 3 years ago, in January 2011, EPA proposed to expand the Superfund program to consider risks from vapor intrusion.  That proposal – strongly opposed by industry – seems to have fallen into a black hole.  The Dupont case could shine a light on that important issue as well.

The Dupont site is part of EPA’s RCRA Corrective Action Program, an important but low profile and neglected program. The RCRA Corrective Action Program  regulates 3,779 major industrial hazardous waste management facilities with contaminated soil/and or groundwater.

EPA has designated RCRA Corrective Action enforcement a national priority. Pulling the enforcement trigger at Dupont would lend some credibility to that designation.

The Dupont site scored over 75 on the Superfund HRS, so if EPA were to take enforcement action that also would illustrate the comparative risks from Superfund versus RCRA sites and would call national attention to lagging cleanups at hundreds of RCRA Corrective Action sites.

The Dupont site has massive off site releases of toxic heavy metal mercury, which have contaminated sediments in Pompton Lake and downriver sediments, fish and wildlife.

Similar to the GE Hudson River PCB Superfund case, the Dupont site raises issues of national concern regarding bioaccumulation of toxics in sediments and Natural Resource Damages, again both national priorities.

And last, but not least, the Dupont Corporation is one of the worlds largest, most profitable, and politically powerful chemical companies.

Dupont has been dragging its feet in cleaning up the site and controlling off site releases since 1988, essentially shielded from federal enforcement by a weak State DEP ACO.

Dupont is currently contesting a final EPA RCRA Corrective Action permit to remediate mercury sediments before the Environmental Appeals Board.

There is no remedial action in place to permanently cleanup groundwater or the shallow aquifer causing the vapor intrusion problem.

Almost 30 years after Congress amended RCRA in the 1984 Hazardous and Solid Waste Amendments, the State of NJ still has not received delegation of the RCRA Corrective Action Program and has failed for over 25 years to mandate a permanent site wide cleanup, including remediation of massive off site releases.

Vapor intrusion is causing direct ongoing human exposures at hundreds of homes. Highly contaminated sediments present a uncontrolled risk to fish and wildlife, and human health as well. Significant portions of the site have not been cleaned up, for over 35 years. The site fits the profile of an “imminent and substantial risk” case.

IF EPA were to take aggressive enforcement action against Dupont, that would send a huge signal that the agency has a stiff spine and is not afraid to follow the science and enforce the law to hold the most powerful corporate polluters accountable.

It would also send a message to State agencies that EPA will no longer tolerate using State Consent Orders as a shield to block federal enforcement.

So, there you are EPA – have at it. Go after Dupont. The case has all the bells and whistles.

I dare you.