US Fish & Wildlife Service Blasts Dupont Science On Mercury Cleanup Plan

Major Rebuke To DEP Review & Challenge to EPA to Strengthen Cleanup

[Extraordinary Update:

Just hours after PEER’s disclosure of the US FWS criticism of the science supporting DuPont’s proposed Pompton Lakes dredging plan [see this], the US EPA today announced that they have shelved the DuPont plan and will reconsider cleanup in light of US FWS and community objections. [See this statement from EPA]

New Jersey PEER Director Bill Wolfe stated:

“We are pleased that EPA is finally listening to the science and the public. We continue to urge EPA to enforce RCRA and the Clean Water Act and to issue an enforceable Order mandating that DuPont conduct a complete cleanup of not only Pompton Lake, but the entire site and downriver sediments. We urge EPA to work with US Fish & Wildlife Service to 1) develop an ecologically sound cleanup plan; 2) fully assess the true natural resource damages; and 3)  ensure that DuPont compensates the public for those injuries.

As we predicted, the US Fish and Wildlife Service (US FWS) has found major flaws in Dupont’s proposed Acid Brook Delta mercury sediment dredging project.

Key USFWS findings as Superfund Natural Resource Trustee:

• the Service does not believe that the proposed remedial action, as currently planned, will completely address historical releases nor be sufficient to protect against future injury to Federal trust resources from residual contamination originating from the [Dupont] PLW

• we believe that significant contamination will remain

• thresholds to evaluate risk to both fish and avian fauna are antiquated and not protective

The Agency’s concerns, transmitted in a February 9, 2012 letter to US EPA Regional Administrator Judith Enck, should require significant changes in the “project’s design and cleanup” and trigger natural resource injury compensation by Dupont (the Service comments explicitly note that they have contacted Dupont already about NR injury compensation).

Here are the highlights, and the bureaucratic backstory to provide a greater understanding of the letter.

To begin, first we note that the US FWS critical review of the flaws in the science supporting the Dupont plan is a major rebuke to NJ DEP, who had approved the Dupont plan and over-rode the findings and recommendations of its own scientists.

Second, it must be emphasized that EPA Region 2 RCRA program staff were either incompetent or intentionally avoided US FWS review of the Dupont plan.

Specifically, EPA presented the Dupont plan informally on October 20, 2011 in Pompton Lakes. We attended that briefing and spoke at the meeting, expressly demanding that US FWS consultation was required. I spoke at length with EPA staff at that meeting and subsequently in emails to reiterate that demand. We again put EPA on notice of federal consultation requirements in a letter to EPA RA Enck. We repeated these requirements in discussions with EPA RCRA staff and testimony at the January 5, 2012 public hearing (video) and in written comments.

Yet the December 21, 2011 EPA review request did NOT come from the RCRA program (despite consultation requirements under RCRA regs) and it only asked US FWS to review NJ DEP state wetlands and stream encroachment permits. US FWS knew nothing about the Dupont mercury cleanup plan until I advised them about it and provided the various technical documents.

The gauntlet is now down before EPA.

Read all about it from our friends at PEER: (hit links at bottom for the documents)

FEDERAL WILDLIFE AGENCY FLAYS JERSEY POMPTON LAKES PLAN
Fish & Wildlife Service Conditions Restructure Cleanup and Spur Damage Payments

Trenton – The U.S. Fish & Wildlife Service is raising big red flags about the troubled cleanup plan for the heavily contaminated Pompton Lakes area, according to the agency review released today by Public Employees for Environmental Responsibility (PEER).  The conditions imposed by the Fish & Wildlife Service (FWS) would require a major upgrade of cleanup operations and may result in substantial damages for harming fish and wildlife from the responsible party, E.I. DuPont De Nemours & Company.

The toxic legacy from an old DuPont ammunition plant has made Pompton Lakes the poster child for prolonged but ineffective cleanup.  The U.S. Environmental Protection Agency (EPA) has deferred to New Jersey but the state Department of Environmental Protection (DEP) has simply adopted DuPont’s remedial plan, which has been roundly criticized by PEER and others.

The FWS review, transmitted in a February 9, 2012 letter from FWS Field Supervisor J. Eric Davis to EPA Regional Administrator Judith Enck, validates these criticisms.  It concludes that the state plan is only a “first step” because “significant levels of contamination will remain” with mercury, which in certain forms is highly toxic and biomagnifies via the food web being of particular concern.

“This Fish & Wildlife Service review confirms that reliance on a broken state cleanup process is at best imprudent and at worst irresponsible,” stated New Jersey PEER Director Bill Wolfe who has been persistently pressing for this required FWS review. “We humans are outside the Service’s jurisdiction but the remaining toxic threats for fish and wildlife are just as serious for us.”

Among the faults found by FWS in the state cleanup plan was its failure to:

• Account for offsite migration of chemicals, pointing to suppressed scientific findings by DEP’s own scientists. Those suppressed memos were unearthed by PEER last month;
  
• Compensate for “projected future injury to Federal trust resources from residual contamination originating from the PLW (Pompton Lake Works).”  Unless these remaining sources of contamination are removed, DuPont may be assessed hefty damages; and
  
• Perform competent scientific assessments. The DEP plan “does not accurately or adequately predict risk to ecological resources from exposure to contaminants released from the DuPont PLW.”  Noting that “concentrations of several chemicals, including mercury, lead, copper, selenium, and zinc, are significantly elevated above thresholds considered protective for human and ecological health.”

“Unfortunately, New Jersey has privatized its eco-science to the detriment of public health and the environment,” added Wolfe, a former long-time DEP analyst. “This remedial plan is so pathetically weak because DEP has been little more than DuPont’s sock puppet.”

It is now up to EPA to impose the FWS conditions on the state plan.  Alternately, EPA could directly assume jurisdiction and invoke its cleanup authority under the Superfund law, as PEER has urged.  According to the EPA Superfund Hazard Rankings obtained by PEER in an ongoing lawsuit, the toxic numbers for Pompton Lakes are nearly double the Superfund threshold yet EPA has yet to explain precisely why it left this site to state discretion.

###

Read the FWS review

Examine offsite hole in state Pompton Lakes plan

View 26 other toxic hotspots where U.S. EPA stepped aside

See EPA’s opaque explanation for its abdication

Look at how New Jersey has privatized environmental science

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability