EPA Reply To Criticism Of Ringwood Superfund Cleanup Deal Raises Additional Concerns

EPA has abdicated a federal Superfund cleanup decision to local government development schemes

When the Bergen Record reported on the EPA’s Ringwood Superfund cleanup deal days ago, I found it hard to believe that EPA agreed to change the preferred remedy – the complete excavation of toxic waste – to a typical “pave and wave” cap, explicitly acknowledged by EPA to save Ford some $30 million.

[Update Note: I was not aware that NJ DEP expressed “no opinion at this time‘ on EPA’s compromise “contingency remedy” OCDA.]

I wrote to criticize that (see this and this) and fired off a letter to EPA Regional Administrator Enck. My letter raised basically two issues:

• was the decision consistent with and meet the requirements of EPA Guidance?
• why did EPA ignore the NJ Highlands Act?

In fairness to EPA, below I print EPA’s full response I received yesterday afternoon.

EPA’s reply and overall decision raise at least the following troubling issues:

1) The role of land use in cleanup decisions

Under EPA Superfund laws and regulations, EPA must consider a number of things when making cleanup decisions – they are of three different types, for a total of 9 overall criteria .

Note that these criteria are not given equal weigh – especially cost, which is just one of 5 balancing criteria and can not over-ride the threshold criteria (see 40 CFR Part 300):

(A) Threshold criteria. Overall protection of human health and the environment and compliance with ARARs (unless a specific ARAR is waived) are threshold requirements that each alternative must meet in order to be eligible for selection.

(B) Primary balancing criteria. The five primary balancing criteria are long- term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; and cost.

(C) Modifying criteria. State and community acceptance are modifying criteria that shall be considered in remedy selection.

EPA based the selected preferred remedy – complete removal of waste material – in part by consideration of the preference for permanent remedies and assumptions about future land use.

To allow the “cap” or “contingent remedy”, EPA also considered what they called in press reports “cost-effectiveness”, an undefined term I could not find in the regulations or the Ringwood ROD.

But I want to focus for today on land use, not costs.

EPA’s assumed future land use for the site was “open space”. All other factors equal, open space lands have inherently lower risks than developed lands due to less human exposure potential. Less exposure, less risk.

That’s why its a bad idea to build housing on contaminated sites. It is also why permanent remedies (complete removal) are preferable to a cap.

EPA rejected a cap at the Ringwood site due to “concerns about the long-term maintenance of a cap assuming either unrestricted access, or access by trespassers.”

EPA revised their initial future land use assumption and reversed the preferred permanent removal remedy to allow a cap when Ringwood officials proposed a recycling center on the site, with asphalt that would serve as a cap.

So EPA has created the absurd policy where developed sites get less cleanup than non-developed open space!

This policy invites development and human exposure to partially cleaned up capped sites.

That’s the opposite of what should occur from a risk perspective – developed sites with human occupation and exposure potential should be more completely cleaned up than remote sites with little or no permanent human occupation and ongoing exposure risk.

Which takes us to our next concern.

2) the role of local government in cleanup decisions

If local officials can simply propose new development or revise the local master plan and zoning ordinances to invite development to toxic sites – and EPA accepts those local future land use plans as dispositive as they did in the Ringwood case – that in essence delegates the cleanup decision to local officials.

EPA has abdicated a federal Superfund cleanup decision to local government development schemes.

Under this kind of EPA approach, what is to stop any other local government from working with polluters to craft similar schemes?

The corporate polluters save billions in cleanup costs, the local governments gets new development and tax ratables, and shakes down some corporate graft, like a firetruck, community center or local park.

This completely undermines the Superfund scheme. It makes federal decisions that are supposed to be based on protecting health and the environment in essence local economic development decisions.

3) Why is the NJ Highlands Act not considered an “ARAR”?

EPA Superfund decisions must consider what are called “ARAR’s” – an acronym for what EPA agrees are state environmental requirements.

I sent EPA RA Enck this request regarding the Higlands Act and ARAR’s – EPA’s reply did not address this issue:

You should ask Walter Mugdan why the ROD explicitly notes the jurisdiction of the NJ Highlands Act with respect to recognizing progress the Borough of Ringwood has made, but not with respect to an ARAR guiding the remedial action.

Ask Walter and Regional Counsel to review Sections 80 and 81 of the Highlands Act, which amended NJ cleanup laws to require that “remediation” be “consistent with the Highlands Regional Master Plan”.

So not only Highlands Land USe restrictions apply, but remedial requirements as well (FYI, I worked on drafting that bill when I was with NJ DEP representing the McGreevey Administration).

How can EPA recognize the Highlands Act for a recycling center in terms of DEP permitting and Highlands Council review, but not for the underlying remediation?

The Highlands Act should be recognized by EPA as an ARAR as a result of the Act’s land use restrictions and water quality standards, especially the non-degredation policy designed to protect Highlands drinking water.

Dear Mr. Wolfe:

Regional Administrator Judith Enck has asked me to reply to your email of July 2 regarding the Record of Decision (ROD) for the Ringwood Mines Superfund site issued by EPA Region 2 on June 30.

You assert that the “contingency remedy” included in the ROD for the O’Connor Disposal Area (OCDA) is inconsistent with EPA guidance.  We disagree.

It is EPA’s policy to consider anticipated future land use when selecting cleanup actions at Superfund sites.  Prior to September, 2013 it had been EPA’s assumption that the future use of the OCDA would be as open space.  Under that assumption, EPA’s September 30, 2013 Proposed Plan proposed, and EPA’s June 30, 2014 ROD selected complete removal of the waste materials in the OCDA as the appropriate remedy.  As explained in the ROD, EPA made this selection because of concerns about the long-term maintenance of a cap assuming either unrestricted access, or access by trespassers.

In September, 2013 the Borough of Ringwood – the governmental authority with jurisdiction over local land use and the owner of the OCDA – informed EPA that the area will be reused for the Borough’s relocated recycling center.  Such reuse would involve, among other things, restricted access and placement of asphalt paving as a cap.  Under that land use assumption, capping the OCDA will effectively prevent exposure to waste material and be fully protective of human health and the environment.   EPA’s Proposed Plan and ROD therefore also included a contingency remedy allowing consolidation of the waste materials in the OCDA and capping of those wastes, provided that the Borough timely moves forward with its plan to relocate its recycling center on this area of the site.  The Proposed Plan and the ROD included specific conditions or criteria that must be satisfied by the Borough in order for the contingency remedy to be invoked.

The EPA guidance that you cite authorizes contingency remedies.  The guidance states that both the selected remedy and the contingency remedy must satisfy applicable statutory and regulatory criteria; both must be described fully; both must be evaluated fully using the nine criteria specified in the National Contingency Plan; and the criteria that will be used to decide to implement the contingency remedy should be identified.  The Ringwood Mines ROD fulfills all those requirements.

Sincerely,

Walter Mugdan, Director

Emergency & Remedial Response Division