US Fish and Wildlife Service Review Science – Not Dupont – Drove Additional Mercury Cleanup in Pompton Lakes

The Bergen Record and the EPA are misleading the public about the reason for the expanded mercury cleanup from 26 – 40 acres of Pompton Lake and new down-river sediment sampling and cleanup requirements.

Here’s what the Bergen Record story lead with today:

POMPTON LAKES — The expansion of DuPont’s plan to clean Pompton Lake was primarily motivated by a company study that found mercury-laden sediment had moved past the lake’s dam and downstream on the Ramapo River in unknown quantities, federal environmental officials said Tuesday.

The EPA is saying that it was Dupont’s own science that convinced EPA to expand the cleanup.

And the Bergen Record reports that uncritically, and even makes a mistake, falsely calling Dupont’s 1/9/12 study a “2011 study” (see technical end note).

[Note: the findings of a Dupont 2011 bathymetric survey were summarized in a consultant’s Report submitted to Dupont on January 9, 2012. The 2012 Report compared elevations in the lake between 2007 and 2011. Aside from getting the Record story date wrong to imply that Dupont’s science was the source of EPA’s decision to expand the cleanup, the 2012 Report found:

• Comparison of the 2007 to the 2011 lake bottom elevation surfaces indicated that elevations differences over 99% of the remediation project area were within the accuracies of the combined surveys or showed a slight increase in elevation potentially indicative of deposition. The areas where slight decreases in elevation of the lake bottom were observed do not appear to be consistent across the project area which could be the result of methodology interpolation between actual survey points. 

In other words, Dupont claimed the opposite of what was reported. Dupont claimed that sediments in the lake increased in elevation as a result of deposition, not that sediments were eroding (i.e. and lowering lake elevations) and going downstream!]

All that, my friends, is one big boatload of bullshit.

The real reason EPA expanded the cleanup is because the US Fish and Wildlife Service found that Dupont’s science – upon which the original EPA cleanup plan/draft RCRA permit was based – was seriously flawed and not protective (a DEP scientist had previously called Dupont’s science “misleading”).

We broke that story – see:

• DUPONT POMPTON LAKE POLLUTION MAY BE HEADED DOWNSTREAM – DEP Scientists’ Questions Could Prompt Feds to Expand DuPont Cleanup Scope

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

• US Fish & Wildlife Service Blasts Dupont Science On Mercury Cleanup Plan – Major Rebuke To DEP Review & Challenge to EPA to Strengthen Cleanup

You can read the complete USFWS comment letter to EPA, which stated:

• 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

US Fish and Wildlife Service only got involved in reviewing the Dupont cleanup plan because I brought the issue to their attention.

I had to bring the issue to USFWS attention because EPA failed to consult with USFWS during development and approval of the Dupont cleanup plan, as required under federal RCRA regulations.

I raised the USFWS consultation requirement way back in October 19, 2010 at an informal EPA presentation; again in a detailed January 7, 2012 post, and I testified about this violation of federal regulations at the January 5, 2012 public hearing on the EPA draft permit (read testimony in the hearing transcript – at page 17 – 32).

EPA only consulted with USFWS because I called them out on it on the record at the 1/5/12 public hearing. In a huge mistake, EPA consulted with USFWS only AFTER that criticism and long after the ecologically based cleanup plan was developed and public noticed as a draft permit.

Failure to consult with USFWS is not some minor oversight, because this was an ecologically based cleanup.  It could not have been an oversight.

EPA is now trying to whitewash all that history for the following reasons:

1) failure to consult with USFWS is a serious mistake, it delayed the cleanup, and it was an embarrassment to EPA.

So EPA is now downplaying the significance of USFWS’s review role;

2) EPA has allowed Dupont to retain control over the science and cleanup process, specifically the ecological risk assessment and downriver sampling.

If EPA were to highlight USFWS criticism of Dupont’s “antiquated” science, that would undermine the integrity of Dupont’s science and cast serious doubt on EPA’s decision to allow Dupont to retain control over the cleanup and ecological risk assessment;

3) USFWS’ criticism of Dupont’s science is an embarassment to EPA’s cleanup partners, Dupont and DEP.

Dupont developed the lousy science and DEP approved it. So, of course EPA does not want to highlight that, especially becuase EPA has chosen to allow Dupont and DEP to control the cleanup, despite this awful history of failure.

4) EPA and Dupont do not want USFWS and ecological reviews to become a big part of expanding the RCRA Corrective Action program.

Dupont may also have legal interests in appearing to self disclose down-river mercury contamination – but why did they wait until January 9, 2012 to disclose this info to EPA?

What did Dupont know about downriver sediment transport and when did they know it? Is this another vapor intrusion failure to disclose and warn fiasco?

5) For political reasons, EPA does not want to validate – and thereby legitimize and empower – the criticism of community advocates and critics, including yours truly.

To do so would not only embarrass EPA, but also EPA’s partners, Dupont and DEP.

This is the kind of criticism EPA does not want repeated: from the 2/27/12 Suburban trends article:

US Fish and Wildlife Service recommends more testing in Pompton Lakes

Bill Wolfe, of Public Employees for Environmental Responsibility, said, “This is a highly significant move on the part of the FWS and it completely undermines the prior approval because of the statements it makes about the DuPont science, which it calls ‘antiquated and not adequately protective.’ 

“DuPont has consistently told the public that its cleanup plans reflect sound science and the DEP (NJ Department of Environmental Protection) rubber-stamped that cleanup plan despite the fact that a DEP scientist raised objections,” said Wolfe.

“It is very important that the FWS recommendations be incorporated in the new cleanup plan that the EPA is going to be drafting and that the cleanup plan completely cleans up the site,” Wolfe added.

I’m sure Dupont and EPA made calls to news editors to avoid a repeat of exactly that kind of criticism.

Seems like EPA and the media will say just about anything to avoid embarrassing Dupont or DEP.

Technical End Note: as an illustration of intellectual gymnastics and just how far EPA is willing to bend to avoid embarrassing Dupont and admitting that USFWS review and critical public comment were the reasons why the cleanup was expanded, check out this from the EPA statement of basis for the final permit.

Note how the Dupont study was submitted to EPA on January 9, 2012, 4 days AFTER the public hearing when lack of USFWS review and those technical criticisms were aired:

EPA used the administrative procedures set forth in 40 C.F.R. Part 124 to solicit public comments prior to making its final corrective action and permit modification decision(s) for the ABD. In making this decision, EPA has evaluated all written comments and comments from the public hearing received during the public comment period including one set of written comments that was submitted after the end of the public comment period. Relevant information and comments received on this project have influenced the development of the final permit modification. As required by regulations, EPA also consulted various federal agencies and the state for input on the proposed permit modification. Consultation with the United States Fish and Wildlife Services (“USFWS”) and the NJDEP have also influenced the development of the final permit modification. In addition, Dupont (“Permittee”) provided to EPA, the results of a bathymetric survey, dated January 9, 2012. The survey was performed to compare the lake bed elevation to the 2007 bathymetric survey. This information also influenced the development of the final permit modification.