Dupont Caught Exploiting DEP Loophole on Toxic Cleanup Oversight

NJ DEP still does not have delegation from EPA to implement the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?

[Update: 11/16/10 – I’ll write something and post photos later today, but this is good story on last night’s hearing by Jim O’neill of the Bergen Record: DuPont’s permit-change request irks Pompton Lakes residents – literally a killer quote:

“Vojo Congura, who lives directly across the street from the DuPont property on Barbara Drive, grew emotional as he described his efforts to test the groundwater under his own house as he cared for his wife, who he said died of cancer at 46. Referring to DuPont, he asked the DEP to “step on their throats like they stepped on ours.”]

This story is complicated and needs a little background and context. But I don’t want to get into the weeds and rehash the whole story – those interested can read prior posts (see this and this and this).

DEP will hold a public hearing Monday night (11/15) in Pompton Lakes on a Dupont “permit by rule” (PBR) for the groundwater remediation pump and treat system’s discharge to groundwater.

The hearing is only being held because alert residents read the fine print in the legal notices section of the local newspaper and protested.

Initially, DEP ignored residents’ concerns and downplayed the issue as a purely minor administrative permit matter.

Then, after more informed local protests, DEP rejected requests for a public hearing but agreed to extend the written public comment period for 60 days.

But then PEER intervened with a letter to US EPA, which prompted EPA oversight and basically forced DEP to agree to hold a public hearing on the PBR proposal.

The Dupont toxic site has massive groundwater contamination and a plume has travelled off site and is now under 450 homes in Pompton Lakes. Chemical pollutants in groundwater are migrating into homes – a process know as “vapor intrusion”.

The long known and ignored vapor intrusion problem was disclosed to residents only recently, which sparked outrage and renewed demands that the site be cleaned up.

Residents were especially frustrated by a cozy relationship between Dupont and DEP, lax DEP oversight, and a pattern on secret dealings between DEP and Dupont. That process under NJ’s “streamlined” cleanup laws led to residents having been virtually shut out of cleanup decisions at the site for over 20 years.

In response, NJ DEP pledged to do more, while NJ Department of Health officials conducted a study that found elevated cancer rates in Pompton Lakes that were associated with the toxic chemicals in groundwater.

Elevated cancer risks only added to the outrage and prompted residents to demand that the site be listed on the federal Superfund National Priorities List (NPL) so that oversight of the cleanup could be taken away from NJ DEP and shifted to US EPA.

In response, US EPA and NJ DEP officials pledged to work with the community. Both EPA and DEP pledged to work openly with residents and imporve transparency and Dupont accountability.

But EPA recommended against Superfund listing, purportedly on the basis that Dupont was a financially solvent responsible party and federal EPA supervised RCRA cleanup oversight would be the better option. Despite our requests – voiced at public hearings and in writing –  no written rationale was ever provided by EPA to support this EPA policy decision to rely on RCRA, not Superfund.

But now we learn that this may have not been the real reason for not pursuing the Superfund option. The real reason may be due to the fact that EPA’s Superfund risk ranking method, known as the HRS for “Hazard Ranking Score”, does not consider risks from the vapor intrusion exposure pathway. This issue also recently came to light in chromium exposure in basements in Garfield NJ.

But back to the Dupont cleanup – Given the EPA and NJ DEP pledges, of course residents’ expectations were raised.

So that’s the background and context for the Dupont PBR hearing.

In terms of the PBR, DEP created a statewide PBR option for certain NJPDES permits back in 2005 as a means of streamlining oversight of cleanups, given scarce resources. Polluters were given the option to ask DEP to grant approval so that an individual NJPDES permit could be replaced by a “permit by rule”, which entails less DEP oversight.

The proposed Dupont PBR would rescind the current individual NJPDES discharge to groundwater permit, renewed on a 5 year cycle, and replace it with a permanent approval.

The PBR option was designed for minor, low risk, mainly administrative purposes. Certain facilities were NOT eligible for the PBR alternative under DEP’s own rules. For example, RCRA hazardous waste facilities and “corrective action” cleanups are NOT eligible for a PBR under DEP’s own rules. The RCRA facilities also are not eligible due to federal RCRA requirements.

Dupont is an EPA regulated RCRA facility undergoing corrective action, and therefore is not eligible and should never even have requested as PBR. Given that Dupont is NOT eligible for a PBR, DEP should never have issued the draft PBR for Dupont.

The Dupont draft PBR – especially after it was discovered by residents in the fine print of the legal public notices buried in the back of the newspaper – totally undermined prior EPA and DEP openess commitments.

Procedurally, the current NJPDES individual permit is renewed on a 5 year basis. This allows residents an opportunity to comment on the permit in light of new information.

For example, some Pompton Lakes residents claim that the DEP approved pump and treat discharge to groundwater is not the best cleanup technology and is exacerbating the vapor intrusion problem by increasing local groundwater elevations and pressures, by forcing groundwater and vapors to migrate more quickly into residents basements. It is not clear whether cleanup alternatives and that potential problem have been technically evaluated. Therefore, the individual NJPDES permit renewal process and public hearing becomes an opportunity to raise these kinds of issues.

The DEP NJPDES permit regulations also require that DEP respond in writing to all concerns raised by the public. This is an important accountability measure.

Additionally, DEP regulations allow residents – at any time – to petition DEP to modify or even to revoke the NJPDES permit, in light of new information, or omissions or errors in the original permit.

All these opportunities to hold Dupont and DEP accountable would be lost under the PBR approach.

One more point before the press release and the various documents in the below PEER press release.

I was suprised by the EPA reply letter. EPA basically said that – after more than 20years – EPA has not issued a final RCRA cleanup permit, not taken enforcement action, and does not know the source of the contamination at the Dupont site. EPA claimed:

However, it is currently unclear whether the groundwater contamination is coming from RCRA-regulated units or other of the more than 200 solid waste management units (SWMUs), also referred to as Areas of Concern (AGCs) in documents submitted by DuPont. …

Final cleanup requirements will be incorporated into the EPA corrective action permit, subject to public review and comment. If necessary, post-closure conditions applicable to the RCRA-regulated units could be imposed via a separate enforceable instrument (e.g., a postclosure permit or an order).

I found those admissions by EPA quite troubling.

Congress directed EPA to implement RCRA corrective action requirements at RCRA facilities way back in in 1984 (26 years ago), in the “Hazardous and Solid Waste Amendments” (HSWA).

I supervised the development of NJ DEP’s RCRA HSWA corrective action program as my first assignment at DEP back in 1985.

Dupont Pompton Lakes was a high priority RCRA/HSWA corrective action land disposal facility back in 1985.

NJ DEP still does not have full delegation from EPA to implememt the 1984 RCRA/HSWA amendments.

What have EPA and DEP been doing for 25 years?

How is it possible that a groundwater plume was allowed to migrate under 450 homes without warnings to the residents and installation of vapor mitigation systems in those homes?