DEP [or EPA] Redacts Key Information About Pollution From Plant
Redactions obscure health risks and lax regulatory oversight
[Important update in text]
Jon Hurdle of NJ Spotlight has a good story today about imports of the toxic chemical known as “Gen X” to Dupont’s Chambers Works facility in South Jersey. (Chemours purchased Dupont), see:
The story was the result of the work of Tracy Carlucchio at Delaware Riverkeeper, who filed an OPRA request to DEP.
The document, dated May 18, 2018, was obtained from the state Department of Environmental Protection through an open-records request from the environmental group Delaware Riverkeeper Network.
I was stunned by the fact that DEP redacted critical information from the response to Riverkeeper, mentioned in the final paragraph of Hurdle’s story:
But some parts of the document were redacted, obscuring the company’s responses to EPA questions including what pathways allowed the escape of GenX into the environment at the plant, and how the company treats for the chemical.
Asked to provide details of any GenX spills at the site, the company denied there had been any.
“We are not aware of any spills of HFPO-DA at the Chambers Works site,” the company said in its response.
[Update: I just got email reply from Mr. Hurdle. It is not clear whether DEP redacted the information under OPRA, or whether EPA redacted it in the Chemours Report to US EPA. It sounds like the later. Regardless, it is critical regulatory information that must be made public – see specific questions below about that. ~~~ end update]
I was also disappointed that Hurdle missed the issue, on both OPRA and the implications of the redaction.
First of all, the issue is broader than the Dupont response that denied any “spills”.
Here are the relevant issues:
1. The issue is not limited to “spills” but whether there are ongoing releases of Gen X to the air, land, and surface water (the Delaware River) and groundwater at the facility.
2. The issue is whether the facility’s air and water permits authorize these discharges (i.e. are they regulated discharges? are they fugitive emissions?) and whether the facility’s DEP permits were properly modified and issued by DEP with public notification and public participation.
3. The issue is whether the facility was required by DEP to conduct a risk assessment, as required under DEP air permit regulations for discharge of hazardous air pollutants and carcinogens that adversely impact public health – and whether DEP determined that the risks were “acceptable”.
Pursuant to N.J.A.C. 7:27-8.5(b), for preconstruction permit applications, and N.J.A.C. 7:27- 22.3(cc), for operating permit applications, health risk assessments are required for Air Toxic emissions listed for new or modified equipment and at the time of Title V operating permit renewals. For Title V permit renewals, a facility-wide health risk assessment is not required if the facility has already completed one for a previous renewal, unless there have been changes to emissions, stack parameters, risk factors, or dispersion models since the last time a facility-wide health risk assessment was conducted. Applicability determinations are made at the time of permit application. Additional information on applicability can be found at the Air Quality Permitting Program, Division of Air Quality (DAQ) website http://www.state.nj.us/dep/aqpp.” – see: DEP Technical Manual
4. The issue is whether the facility is in compliance with their air and water permits with respect to discharge of Gen X – and if not, whether DEP has taken enforcement action for permit violations or unpermitted discharges.
5. The issue is whether Chemours and/or DEP monitors all emissions of Gen X from the plant and beyond the facility’s property boundary for risks to public health and the environment – and if they do, what do those data say?.
6. The issue is whether DEP regulations and oversight are too lax and provide loopholes that allow the facility to discharge this hazardous chemical with no DEP regulatory oversight and public awareness.
7. The issue is why DEP redacted critical information regarding release of Gen X to the environment that is directly relevant to all the above issues.
8. The issue is on what legal basis under OPRA DEP justified these redactions.
9. The issue is why did this information have to be forced out of DEP by an OPRA request and not previously disclosed to the public and community.
10. The issues why the federal Toxic Substances Control Act – including recent amendments for which Cory Booker declared victory – allows Gen X to be manufactured and why the public was not informed of any of this by US EPA and NJ DEP. ASK BOOKER.
“Congressional approval of this bipartisan chemical safety law is a major victory for our state and for the legacy of Sen. Frank Lautenberg who championed this fight. I am proud of the long-overdue improvements I fought to include in this bill, includingprovisions that strengthen EPA’s ability to regulate toxic chemicals, provide EPA with dedicated funding, give more scrutiny to new chemicals before they come on the market, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist.
[Update – According to US EPA:
Another tool in the TSCA enforcement toolkit is TSCA Section 7 Imminent and Substantial Engagement (ISE) authority. This infrequently used provision provides EPA authority for preventing a release or continued release of a substance meeting the definition of a ”imminently hazardous chemical substance or mixture” in TSCA7(f).
Ask DEP and EPA why this TSCA enforcement tool was not used in this case.
We want answers – and we want more rigorous followup reporting by NJ Spotlight. I reached out to Mr. Hurdle several times now.
We’ll keep you posted.
{Update 2: It appears that DEP and EPA did not redact the information. But even if Chemours redacted the information pursuant to TSCA in a Report to EPA (that NJ DEP had bee copied on) as confidential business information, it relates to chemical releases to the environment at the facility. Even if redacted for public review, EPA and DEP both have the underlying data. Accordingly, the above regulatory issues are still relevant.]
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