Dupont – Too Big to Jail

“a billion bullets to the brains of Newark’s kids”  

Dupont Sought To Restrict Public Info For 25 Years

I am haunted by a line by my friend Peter Montague, NJ’s legendary environmental justice and anti-toxics advocate.

Opposing the DEP’s renewal of the 25 year old Essex County garbage incinerator air pollution permit, Montague wrote (paraphrasing) that the huge lead emissions from the facility amounted to “a billion bullets to the brains of Newark’s kids”.

That’s not hyperbole – the science of pollution dispersion modeling and neurotoxic and developmental effects of lead on children are well known.

That’s why EPA banned lead as a gasoline additive, why industry was forced to spend billions removing lead from paints and other consumer products, and why EPA enforces strict lead abatement programs.

So why is that – or any other – garbage incinerator allowed to continue to operate?

Montague’s bullets to the brains metaphor clicked in my mind while driving home from the Dupont Pompton Lakes EPA “public availability” Tuesday night.

For almost 100 years, Dupont fired tons of chemical bullets (lead, mercury, volatile organic chemicals) to the bodies of residents of Pompton Lakes.

Why isn’t Dupont in Jail?

Anyway, on Tuesday, senior EPA managers made themselves publicly available (how noble of them!) to explain why EPA rejected residents’ demands that the cleanup of the Dupont Pompton Lakes site be federalized and overseen by EPA as a national priority under the Superfund Program. Instead, EPA will jointly oversee cleanup with the NJ DEP under the Resource Conservation and Recovery Act (RCRA) Corrective Action cleanup program.

The bottom line for EPA: they have a Superfund “cash flow” problem and they feel that Dupont is “ready, willing, and able” (that’s a quote by EPA’s Walter Mudgan, EPA Region 2 director of emergency and remedial response division ) to expeditiously and permanently cleanup the site.

For over 25 years, Dupont has failed to cleanup the site, fought hard to prevent scrutiny of their cozy relationship with NJ DEP, and sought to restrict public access to information about the cleanup.

So it just boggles the mind that EPA can still believe the lies Dupont told EPA way back in 1992, when Dupont opposed the EPA RCRA Corrective Action permit. In 1992, Dupont opposed oversight by EPA and public involvement. Dupont urged EPA to withdraw their RCRA permit and told EPA exactly what they could do with their RCRA Corrective Action permit. Dupont said:

We believe that the [EPA RCRA] permit, if finalized, would be a major setback in our effort to successfully complete our site cleanup effort.

We are well into the investigation and remediation of [the site]. This work began in 1988, and has proceeded under the terms of an Administrative Consent Order (ACO) with the NJ DEP. The ACO clearly defines such [cleanup] requirements as compliance schedues.

The  [DEP ACO] has provided a clear focal point for the regulatory coordination of the project , and we believe that it has been very effective and efficient.

… any changes in our existing [DEP ACO] approach would add complexity and duplication with no benefit to the public or environment.

The final paragraph in the [EPA RCRA permit] should clarify that no further public notice is anticipated regarding groundwater contamination.

[Note: let’s repeat that: Dupont requested that EPA  “should clarify that no further public notice is anticipated regarding groundwater contamination.” Dupont was trying to limit public information since 1992. DEP and Dupont had no obligations to hold public hearings under the 1988 DEP ACO, and they wanted EPA to hush things up too.  This Dupont request reflects the longstanding pattern on restricting public involvement in cleanup decisions. DEP and EPA played right along with Dupont.]

25 years of failure are overwhelming proof that Dupont is in no way “ready, willing and able” to conduct a protective permanent cleanup and work openly and honestly with residents and EPA.  What is EPA smoking?

Dupont is one of the world’s most notorious polluters and has killed scores of its workers.

Dupont has covered up information on the toxicity and health risks of the chemicals it produces for decades, violations of environmental laws for which EPA recently issued millions of dollars in penalties.

Most recently in South Jersey, on March 22, 2011, Dupont settled a classs action lawsuit and was forced to pay $8.3 million to  install water filters in nearly 5,000 homes whose water Dupont poisoned with the toxic chemical known as PFOA (AKA “C-8”).

“For years, thousands of people who live in southern New Jersey have been drinking water polluted with the toxic industrial chemical C8 [PFOA] EWG senior scientist Olga Naidenko, Ph.D. said. “DuPont has disregarded public health by waiting for a federal court order before providing the community with filtered water.”

I mention that PFOA lawsuit settlement not only as an example of Dupont’s total disregard for human life in pursuit of profits, but because of an interesting parallel to the Dupont Pompton Lakes litigation. Follow me.

DEP scientists have long recommended that DEP adopt a drinking water standard for PFOA. Those recommendations were made and under consideration by DEP policymakers during the course of the South Jersey class action lawsuit Dupont just settled.

In response to those recommendations by DEP scientists:

• Dupont hired experts to manufacture uncertainty and challenge the DEP’s scientific risk assessment of PFOA;
• Dupont intimidated and attacked the integrity of the DEP scientists, and
• Dupont lobbied the DEP Commissioner to block application of DEP science in DEP regulations and drinking water standards (which drive toxic site cleanup).

One objective of the Dupont attack was to prevent DEP’s adoption of a drinking water standard for PFOA. Such a move by DEP was vigorously opposed by Dupont because, among other things, it would have had a huge impact on the litigation, in terms of  lending scientific and legal support to the arguments of the plaintiffs.

The recommendations of DEP scientists were ignored and DEP still has not adopted a drinking water standard for PFOA.

Similarly, there is strong reason to suspect that similar pressure from Dupont blocked DEP regulatory action (and public disclosure) on site remediation and vapor intrusion, in order to protect Dupont’s legal and economic interests.

Specifically, DEP had long been involved in lax oversight of the cleanup of Dupont’s Pompton lakes site. DEP entered into a Administrative Consent Order with Dupont in 1988 for cleanup of , among other things, massive groundwater pollution by volatile organic chemicals (VOC’s).

In February 2002, DEP scientists warned the DEP Commissioner about widespread and expanding public health risks from VOC contaminated toxic sites, known as vapor intrusion (see page 5, I was personally involved with this work at DEP).

In response, in 2003, DEP adopted a modified version of the 2002 US EPA “Vapor Intrusion Guidance”.

As such, since 2002, all DEP case managers – including the Dupont Pompton Lakes case manager –  were fully aware of the risks of vapor intrusion, and since 2003 under legal obligations to assure that those risks were addressed in their oversight of all cleanup work.

But, Dupont and DEP failed to disclose information about potential or actual vapor intrusion risks at the Pompton Lakes site until 2008.

In 2004, Pompton lakes residents settled a lawsuit against Dupont for injuries caused by Dupont’s pollution. At that time, they were unaware of vapor intrusion pollution and health risks.

The settlement agreement provided a mediation process for case by case reviews on injuries sufffered and individual damage awards. The settlement is secret, but it apparently waived liability for future injuries.

In 2007, the last individual case was settled. Residents still knew nothing about vapor intrusion.

But just months after the ink was dry on the final settlements, Dupont and/or DEP “discovered” and disclosed the vapor intrusion problem.

So what are the implications? What am I suggesting? And how is this related to the South Jersey PFOA classs action lawsuit?

Recently, a federal District Court judge ruled that Pompton Lakes residents could not sue Dupont for poisoning their homes with vapor intrusion. The judge ruled that residents had waived liability for vapor intrusion in the 2004 settlement.

Had residents known in 2004 what Dupont and DEP had known about vapor intrusion, there is no way they would have waived liability for it.

So, my suspicion is that – just like in the PFOA case – Dupont pressured DEP to keep the vapor intrusion problems quiet until he lawsuit was settled, because that information obviously would have hurt Dupont and benefitted the residential plaintiffs.

This appears similar to how Dupont pressured DEP not to adopt a drinking water standard for PFOA during a lawsuit because it would have hurt Dupont and helped plaintiffs.

This situation warrants investigation. Appearance and timing raise serious questions.