Why Is The Bergen Record Misleading Readers and Protecting Dupont?

Record Mis-States Date of Discovery of Toxic Vapor Intrusion

“C” is for “Cowardice” and “Corruption”

Stop whining! Dupont is a patriotic military contractor who installed vapor systems “for FREE”! (snark!)

The headline writer at the Bergen Record must have a dark sense of humor, because in a typo he suggests exactly the cheerleading journalism in the story today – break out your Pom-Poms girls!

Cleanup hopes put to the test in Pompon Lakes

In the story’s first paragraph, reporter Jim O’Neill claims that the vapor intrusion was discovered in 2008:

The groundwater under the homes is contaminated with PCE and TCE, cancer-causing solvents that were dumped at a DuPont munitions facility decades ago and spread through groundwater to the adjacent neighborhood. In 2008, officials discovered the solvents were vaporizing up through the soil in some of the basements in the area.

That is flat out false.

O’Neill has been provided a “confidential” timeline developed by the NJ DEP and he therefore knows that the 2008 discovery claim is false.

But it is even worse, because the timing is critical and suggests fraud and a coverup by Dupont, EPA and NJ DEP and an intent to mislead homeowners to extinguish millions of dollars of Dupont’s liability for harms to human health and reduction in property values of homes impacted by their toxic vapor plume.

Below is the “confidential” timeline DEP developed, that I published on January 8, 2012.

I also submitted comments to the USEPA and testified about this at public hearings (read the EPA public hearing transcript on the Dupont RCRA Corrective Action Permit, starting at page 17):

I want EPA or anybody else reviewing this transcript to conduct an investigation into DuPont and the EPA and state DEP’s disclosure of the vapor intrusion issue, and that could be done through the EPA Inspector General’s office or through the Department of Justice. I believe there’s been wrongdoing, there’s potential fraud, and it may rise to criminal levels.

I think that that needs to be looked at because not months after DuPont received a liability waiver from the litigants in this town, then the disclosure of vapor intrusion accidentally just happened to occur

I find that to be —

(Applause.)

I find that on its face to be implausible given DuPont’s scientific expertise and knowledge of the site, EPA’s scientific expertise and knowledge of the site, to suddenly, in 2008, after the liability waiver has been issued, to suddenly tell the people and the people who live in those homes that they have a vapor problem. It’s just not credible.

I include additional details about how the timeline relates to EPA and DEP regulatory requirements and the settlement of the Dupont litigation that let them off the hook for millions of dollars in damages:

1) Vapor Intrusion coverup: A decade long  failure to warn and take action

At the [Jan 5, 2012] Dupont [RCRA] public hearing, one of the points I made (which I wrote about in F is for Fraud) was to question who knew what when on the chronology of the vapor intrusion issue and ask why residents were not warned about the poisoning and risks in their own homes.

If people knew, they could take action to prevent exposure to chemicals in their home.

I simply find it difficult to believe that one of the most scientifically and legally sophisticated chemical corporations in the world didn’t understand the vapor problem until the 2008 disclosure and that the timing of the 2008 disclosure had nothing to do with a legal liability settlement deal reached to end litigation.

After the public hearing (I assume in response to my testimony on this issue), someone sent me a trove of DEP emails regarding behind the scenes negotiations with Dupont and EPA (more to follow on that), including the below timeline (probably prepared as a CYA by NJ DEP).

This closed door process would never had happened if the Dupont site was cleaned up under Superfund, as should have happened back in 1982, when EPA conducted an HRS scoring and the site qualified based on risks.

Under Superfund, residents would have a seat at the table and be involved in all the back room secret discussions between Dupont, NJ DEP and EPA listed below – which began over 10 years ago!

Additionally, I was not aware that the groundwater plume that is the source of the vapor intrusion was a “CEA” – a loophole in cleanup requirements known as a groundwater“Classification Exception Area” – under NJ DEP cleanup regulations.

Without going into all the technical details here, this raises significant regulatory and legal issues, if for no other reason that federal EPA RCRA regulations do not recognize a NJ State CEA and that Dupont was required to certify the safety of that CEA. How could EPA have signed off on RCRA compliance and certified the Dupont site under RCRA?

As is obvious from this timeline, Dupont, NJ DEP and EPA regulators were in no hurry and failed to notify homeowners about risks.

These failures occurred despite the fact that vapor intrusion is a direct contact exposure and a public health risk that equalifies as an “immediate environmental concern” (IEC) under NJ DEP regulations. How did Dupont certify that the CEA was in compliance? How did DEP accept this certification?

Vapor intrusion also is  of direct relevance to US EPA Assessment of Environmental Indicators – groundwater and human exposure under control – (CA725 and CA750 – see below) EPA must certify to Congress pursuant to the Government Performance and Results Act of 1993 .

Dupont Pompton Lakes Site

TIMELINE

Vapor Intrusion Pathway

Trenton meeting with DuPont officials (mentioned VI pathway must be addressed) 03-30-01

USEPA Assessment of Environmental Indicators (CA725 and CA750) 12-20-01

John Boyer’s review of South Plant Region RIR (requires VI assessment on-site) 03-13-03

Teleconference with DuPont re: meeting next week & EI Determination of VI Pathway 05-23-03

DuPont provides letter “Indoor Air Evaluation for Four DuPont NJ Sites” 05-30-03

Diane Groth’s review of Environmental Indicators Evaluation of Vapor Intrusion 08-27-03

John Boyer’s review of Environmental Indicators Evaluation of Vapor Intrusion 09-11-03

Teleconference with DuPont, consultant, re: Vapor Intrusion assessment 09-17-03

NJDEP Review of  “Initial Indoor Air Assessment”   09-19-03

John Boyer’s review of Proposed GW Sampling in Support of EI Determination 11-07-03

John Boyer’s email to Barry Tornick (USEPA) on GW Investigation for EI  11-14-03

DuPont Progress Update on VI Investigation for EI Determination12-12-03

John Boyer’ss review of  “Update on GW Sampling in Support of EI Determination” 02-03-04

NJDEP’s review of Update on GW Sampling in Support of EI Determination 02-09-04

Diane Groth’s email regarding basis for TCE/PCE screening levels for VI  02-10-04

John Boyer’s review of Update on GW Sampling in Support of EI Determination  05-13-04

John Boyer’s review of Summary of GW/SG Results for RCRA EI Deter (VI) 05-04-05

John Boyer’s review of Response to Comments Letter (VI)  07-11-05

Trenton meeting re: indoor air sampling requirements   02-15-06

John Boyer’s review of Vapor Intrusion Investigation Work Plan   02-21-06

Response of VI Investigation Workplan Response   05-03-06

Trenton meeting with EPA, DuPont re: indoor air sampling  01-31-07

Development of Anticipated VI Screening Levels    02-09-07

John Boyer’s Review of Vapor Intrusion Investigation & Remedial Action Work Plan 07-20-07

NJDEP’s Approval of VI Investigation & RA Work Plan  01-16-08

DuPont’s 4th Quarter 2007 Progress Report (mentions various email correspondence) 01-31-08

Teleconference re: vapor intrusion sampling implementation  02-14-08

Teleconference re: vapor intrusion sampling implementation   03-06-08

Site visit re: sub-slab soil gas sampling at residential house  03-20-08

DuPont’s Proposed Sub-Slab Vapor Sample Collection Procedures for Building SSDS04-15-08

[Regulatory End Note: 

There are additional revealing DEP regulatory actions that are not on that timeline – for example, in 1987 or so, DEP proposed to revoke the groundwater discharge permit for the shooting pond.

Dupont objected strenuously, claiming that it would force shutdown of thee plant and layoff of like 400 workers.

DEP upper management caved in to Dupont’s pressure and over-rode the DEP staff and issued the permit

Shortly thereafter, the Dupont site was transferred away from the DEP groundwater program that proposed to revoke the permit and allowed to enter into the ACO and transferred the site to a new DEP “Voluntary Cleanup Program” as an alternative to regulatory requirements under federal RCRA.

US EPA has let NJ DEP get away with that for decades – and NJ DEP STILL does not have a delegated RCRA Corrective Action program, 32 years after Congress passed HSWA to RCRA in 1984.