USGS Study Christie DEP Relied On To Rollback Highlands Protections Is Challenged Under Federal Data Quality Act

Posted on May 19, 2016 by Bill Wolfe

NJ DEP Private Well Testing Act Data Lack QA/QC

Location bias and lack of basic geological features violate USGS science standards 

The federal Data Quality Act was passed by Congress in 2000 as part of an attack on regulatory agencies. According to a Congressional Research Service Report, some say the Act was designed to be used as:

a tool by which regulated parties could slow or even stop new health, safety, and environmental standards

The academic group Defending Science shares that view of the intent of the Act:

The law was in large part the brainchild of the Center for Regulatory Effectiveness (CRE), an industry-sponsored ‘regulatory watch-dog’ group. …

For proponents of the IQA such as the US Chamber of Commerce and CRE, IQA was a mechanism for “regulating the regulators.” Critics of the law – including public interest groups such as the Center for Progressive Regulation, OMB Watch and Public Citizen – were concerned that a high volume of petitions would sap resources.

The law has been called “the nemesis of regulation”.

So it’s a sweet irony that I just deployed this tool to attack a regulatory rollback by the Christie DEP.

The fact that I drafted the legislative provision of the Highlands Act (i.e. the phrase “deep aquifer recharge“) and staffed Governor McGreevey’s Highlands Task Force and worked on the issue while with DEP only makes that irony sweeter.

The revolving door sometimes turns in the public interest! And the Arc of the Universe sometimes bends towards justice.

NJ Spotlight does a good job in reporting the story today, see:

Just a few points to expand upon that story and provide the underlying documents.

The challenge was filed by PEER, see:

In particular, the wonks out there might want to read the complaint which seeks:

Accordingly, PEER respectfully requests the USGS take the following steps to comply with the Information Quality Act:

1. Retract the “Median Nitrate Concentrations in Groundwater in the New Jersey Highlands Region Estimated Using Regression Models and Land-Surface Characteristics” study.

2. Issue a public statement explaining the reasons for this retraction.

3. Send a letter to the NJ DEP Commissioner requesting that that agency refrain from relying on this retracted report for any regulatory or public health purpose.

The USGS study in question admits that it is spatially biased, a point we highlight in the complaint.

USGS also admits that the data does not provide essential geological information, such as well location, depth, or aquifer – critical attributes that are included in USGS’s own well data.

In addition, as the USGS study admits, shallow residential wells are influenced by nearby septic systems and other anthroprogenic sources of nitrate, and therefore can never characterize “deep aquifer” conditions or background groundwater quality, as required by the Highlands Act.

But, what may be the killer argument, is the fact that the underlying data for the USGS study did not undergo quality assurance/quality control (QA/QC) review. That failure alone conflicts with USGS’s own standards for scientific reports.

The source of this data (96% of it) is the NJ Private Well Testing Act.

The NJ DEP itself noted critical limitations in this data, including the fact that it did not undergo QA/QC review.

The DEP’s Private Well Testing Act Report warns about lack of QA/QC and other limitations and flaws in the PWTA data (see page 5, “Limitations of the Data”)

Several factors may affect the measurement and quality of the data collected as part of the PWTA and utilized in this report. These factors include sample collection and transport, laboratory analysis, accuracy of related well location information, and data entry and reporting. Any of these factors, if handled improperly, could result in an unwarranted test failure or approval. Since no state agency has the ability to verify that all real estate transactions (sales and leases) subject to testing under the PWTA have been reported to NJDEP, the absence of results, along with errors or mistakes in the reported data, could have a significant impact on the evaluation and interpretation of the data presented. The following identifies some key issues concerning PWTA data: […]

Analysis and Data Reporting – The PWTA Program testing data are submitted electronically and are automatically entered into the database without any quality control or quality assurance reviews. It is assumed that the certified laboratory properly met all required protocols and the data are accurate. The PWTA Program relies on the reporting laboratory to catch and correct any data entry errors.

The USGS Report also used a bizarrely high “Method Detection Limit” (MDL) to classify 23% of the PWTA data as “Non-Detect” (ND), as high as 10 mg/L nitrate. That is an MDL that is orders of magnitude higher than what DEP certified laboratory and various EPA regulations require.

While not a science or data flaw, the statistical metric chosen, i.e. median value, by definition considers degradation of background water quality because a median value is “the number separating the higher half of a data sample, a population, or a probability distribution, from the lower half.” (Wiki)

The median statistic contradicts the legislative standard in the Highlands Act to prevent degradation of groundwater

Finally, the USGS knew – or should have known – about the DEP’s methodology and basis for the current Highlands septic density standard (which relied on USGS well data, not flawed NJ PWTA data) and how that methodology reflected the Highlands Act non-degratation policy and derived “deep aquifer” protections based on background nitrate levels.

The USGS knew – or should have known – that this DEP standard was subject to a lawsuit filed by the NJ Farm Bureau and was a core protection of the Highlands.

As such, their work on this study undermined the public trust and confidence in USGS, as a science based organization independent from politics.

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