NJ Gov. Murphy Just Compared Dupont Pompton Lakes To Love Canal – So What Is He Going To DO About It?

A Brief Policy History And Outline Of a Path Forward

NJ DEP Must Assume Control From Trump EPA

DEP Must Enforce State Cleanup Laws

Wednesday’s Bergen Record reported that during an appearance on an earlier WNYC Brian Lehrer radio show, NJ Gov. Murphy compared Pompton Lakes NJ to Love Canal, NY, see:

• Phil Murphy compares DuPont pollution in Pompton Lakes to Love Canal; says DEP is investigating

“This is a really tough situation, and it’s one of these things that brings back memories of Love Canal, which are two words no one wants to hear again,” Murphy said during an appearance on WNYC radio.

But, after dropping the “L” bomb, all Murphy could muster is that DEP is investigating?

Are you kidding me? Does anyone brief Murphy before he opens his mouth?

NJ DEP has overseen Dupont’s “cleanup” of the Pompton Lakes site for over 40 years – importantly under a 1988 “Administrative Consent Order” (ACO) entered into under NJ State law.

The Dupont site is jointly under NJ DEP and US EPA jurisdiction pursuant to federal law.

EPA oversees the Dupont cleanup under the Resource Conservation and Recovery Act (RCRA) as amended in 1984  “Hazardous and Solid Waste Amendments” (HSWA) “Corrective Action” program.

The RCRA/HSWA created a complex regulatory framework and cleanup program whose implementation can be delegated to States by EPA. However, NJ never sought EPA delegation of the Corrective Action program, instead relying on State law and the 1988 ACO.

I previously managed the NJ DEP HSWA Corrective Action program, so had front row seats to all this when it was going down.

DEP leaders chafed at EPA RCRA oversight (which they dismissed as “bureaucratic bean counting”) and opposed the stringent RCRA/HSWA regulatory mandates that are implemented via prescriptive federal rules, strict standards, and permit procedures. There was lots of formal public involvement in an EPA RCRA permit program, and both DEP regulators and major corporate polluters hated that accountability, especially for highly controversial toxic site cleanup decisions, where community pressure drives more expensive and protective cleanups.

Instead, for political and economic more than scientific or public policy reasons, DEP leaders favored the more flexible and pro-polluter framework under NJ State laws and DEP oversight.

So, to avoid EPA RCRA oversight, to protect politically influential NJ industrial polluters from costly EPA driven cleanups, and to eliminate public participation and shield DEP bureaucrats and polluters from community demands for complete cleanup, NJ DEP created the “Voluntary Cleanup Program” (VCP) as an alternative to the EPA RCRA Corrective Action program (and prior State DEP enforcement documents like Administrative Orders and Spill Act Directives).

The VCP was implemented by DEP via flexible “Administrative Consent Orders (ACOs) instead of the prescriptive and very public RCRA permit process established pursuant to federal EPA regulations and stringent standards. The DEP used the VCP and ACO mechanism as evidence to argue to EPA regulators that they were making progress in cleaning up federal RCRA sites and had an enforceable program in place. The DEP urged EPA to back off federal RCRA oversight and defer to DEP.

Dupont loved the DEP’s ACO – they wanted to work exclusively with DEP and keep pesky EPA bureaucrats and the public completely out of the loop.

Here’s what Dupont wrote to EPA as comments on the EPA 1992 RCRA permit (links and analysis):

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 schedules.

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: “No further public notice” proves that Dupont has been trying to conceal the groundwater contamination from the public since 1988. FRAUD. CONSPIRACY.]

At the time, EPA and US Justice Department lawyers raised concerns that DEP was creating a “shield” to federal enforcement and frustrating enforcement of RCRA/HSWA requirements. They threatened to withhold federal EPA RCRA grant money to NJ DEP. But the EPA and US Justice Department lawyers lost those debates to lobbying by States and industry.

As a result, since the late 1980’s, EPA has deferred to NJ DEP on most critical aspects of the Dupont cleanup, including groundwater cleanup and the vapor intrusion caused by contaminated soil and groundwater.

While EPA was deferring to NJ DEP here in NJ, a massive national chemical industry lobbying campaign weakened the federal EPA RCRA/HSWA requirements, put EPA regulators on a short leash, and effectively put industry basically in charge of their own cleanups.

Meanwhile, at the State level, on May 7, 2009, Governor Jon Corzine signed the Site Remediation Reform Act, (SRRA) N.J.S.A. 58:10C-1 et seq. (“SRRA”) into law.

The SRRA privatized and deregulated the NJ toxic site cleanup program. The law put consultants who work for polluters like Dupont in charge of toxic site cleanup process, with very little – if any -oversight by DEP or transparency and public accountability to the community. While SRRA technically does not apply to federal RCRA sites, it has had a dramatic impact on DEP’s toxic site cleanup program, vastly worsened DEP’s historical deference to consultants for polluters, and further weakened DEP “culture”, particularly regarding enforcement.

But while the situation was bleak at NJ DEP, things at the federal EPA level improved slightly as a result of the demands by the people of Pompton Lakes, who organized a public campaign to pressure EPA to list the Dupont site on the Superfund NPL.

The EPA RCRA and DEP ACO failures to force Dupont to fully cleanup the site then prompted many in the community to seek the EPA federal Superfund program as a solution, instead of RCRA/HSWA.

In theory, for reasons I won’t go into here but have written about in detail, Superfund is a far better program for the people of Pompton Lakes, compared with the industry neutered and dominated RCRA program.

Under the Obama EPA, Region 2 Administrator Enck began to expand EPA oversight under RCRA/HSWA, but never really pulled the trigger and continued the joint management and historical deference to DEP.

But the Obama EPA stuck with RCRA/HSWA and EPA failed to list as Dupont Pompton Lakes as a Superfund site. EPA Region 2 Administrator Enck failed to recommend to EPA HQ that the site be listed on the Superfund NPL. Enck deferred to NJ Gov. Christie.

So, especially considering that the Obama EPA rejected Superfund, in going forward, we now must consider that Trump’s EPA Administrator Pruitt is notoriously pro-chemical industry and corrupt.

He would never support Gov. Murphy’s request to list the site on the National Priorities List (NPL) for Superfund cleanup. Murphy would look naive in even making the request of Pruitt and he would be accused of pointing fingers instead of solving problems under his own control at NJ DEP.

And even if Pruitt were do agree to a Murphy request to list Dupont PL on the Superfund NPL so, it would only be to protect Chemours/Dupont corporate interests, see:

Trump nominates Dow Chemicals lawyer to oversee EPA toxic waste program

WASHINGTON (Reuters) – U.S. President Donald Trump on Friday nominated a Dow Chemicals lawyer to head-up an Environmental Protection Agency unit that oversees hazardous waste disposal and chemical spills from toxic “Superfund” sites.

Trump named Peter Wright as assistant administrator for the Office of Land and Emergency Management (OLEM). Wright served as Dow’s managing counsel for environmental health and safety and provided the company legal support for Superfund and other remediation sites, according to the EPA.

Dow Chemical and Dupont have merged:

DowDuPont Inc. is an American company formed after the merger of Dow Chemical and DuPont on August 31, 2017. It is the world’s largest chemical company in terms of sales

While it is obvious that a Pruitt EPA Superfund program under Dow’s control would be bad for Pompton Lakes, for those that like to get in the legal and financial weeds, you can sort out all that by reading the various Dow Dupont Chemours financial and legal documents.

So, with all that history and the current Trump – Pruitt EPA reality in mind, what should Gov. Murphy do?

Here’s a to do list:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

What will Murphy do?

Now that he’s personally insinuated himself in the controversy and dropped the L bomb, the whole state is watching.