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DEP Says Lack of Data On Extent of Unregulated Chemicals In Drinking Water Makes It Impossible To Regulate Them

DEP Also Claims That DEP Lacks Legal Authority To Collect That Data

When Will “Emergent Contaminants” Emerge Into Public Awareness & DEP Regulation?

There Are Hundreds Of “Emergent” “Forever Chemicals” Out There

The Murphy DEP yesterday released the Statewide Water Supply Plan (update), which provides the policies, plans, and regulations that govern NJ’s drinking water.  DEP wrote in the passive voice, as if the plan “was released” by some unknown entity:

The 2024 New Jersey Statewide Water Supply Plan was released September 23, 2024. It presents updated water supply data, reflects the most current and best available science and for the first time assesses water supply challenges resulting from climate change.

You can read the plan here.

Buried after the Executive Summary, 8 Chapters, a glossary, and 12 technical Appendices – hundreds of pages – you can find the DEP’s “Response to [Public] Comment Document” on the draft plan.

Further buried in that Document one may find an extraordinarily irresponsible claim regarding what DEP calls “emergent contaminants”.

“Emergent contaminants” are hundreds of chemicals that DEP KNOWS are present in NJ drinking water but are not regulated and therefore there are no health based standards and no treatment technologies required to remove these chemicals from your drinking water.

That’s right: DEP scientists have documented and DEP KNOWS that there are hundreds of toxic chemicals – at unknown concentrations and with unknown adverse health effects – in your drinking water from the tap and in the sources of drinking water, i.e. reservoirs, rivers, and groundwater. (see the DEP’s own admissions in the December 4, 2023 edition of the NJ Register (see: 55 NJR 2430(a).)

DEP also knows, and has publicly stated, that it is not feasible to adopt protective regulations and standards for such hundreds of chemicals under the current regulatory approach, which requires extensive data and scientific documentation on the presence, concentrations, and toxicology of each individual chemical. A single chemical typically takes several years of DEP investigation before a drinking water standard, known as a “Maximum Contaminant Level” (MCL), can be adopted. The chemical industry and private water companies typically throw up legal, scientific, and political roadblocks that delay the MCL process even further.

This is not a minor issue and I’m not fearmongering: the most recent “emergent contaminant” to emerge into the light of public awareness are the class of toxic chemicals commonly referred to as “forever chemicals”, e.g. PFOA, PFAS, PFNA et al.

Another class of chemicals known as “endocrine disruptors” and “pharmaceuticals” “emerged” and received some public and press attention about 20 years ago, but that attention has long faded, no doubt as a result of the suppression campaign of Big Pharma.

So, I was astonished to read in the DEP Response to Comment Document that DEP claims that they lack legal authority to require the water companies to sample drinking water source waters, i.e. reservoirs, rivers, and groundwater, for the presence and concentrations of “emergent contaminants”.

DEP wrote (emphasis mine):

“Currently, the Department currently has limited authority to require individual and untreated source water quality data. Future water supply plans are anticipated to take this work further and these comments will be considered as that occurs. Recommendations in the Final Plan are made to require raw water/pre-treatment water quality data for many public supply sources.

This is absurd and irresponsible.

What precisely are the limits to DEP authority to require data collection? Is there an AG’s opinion on that? When will the “recommendations” in the plan be implemented? From how this is written, it seems to mean that DEP lacks authority over privately owned systems but can mandate data collection for “many public supply sources” (how many?)

DEP then went on to claim that a lack of data made it impossible to establish a reliable scientific basis for regulation (emphasis mine):

A commenter expressed concern over the ability of New Jersey’s treatment facilities to meet new water quality standards for emerging contaminants and the need to upgrade water quality treatment capabilities before scientific evidence warrants new standards be implemented. DEP supports the timely upgrade of water treatment facilities for all emerging contaminants. The nature of these compounds and the scientific research do not always allow for treatment to be upgraded before detection. Science is always evolving and DEP must also evolve from a regulatory standpoint as well.” (see: DEP “Response to comments” at page 4-5)

If “treatment can not be upgraded before detection” and DEP lacks authority and is not mandating that chemicals be sampled for (detected), then there can be no new treatment requirements and regulatory standards (MCL’s).

This is a huge Catch 22.

While I disagree that DEP lacks statutory authority, given DEP’s legal position it clearly is now incumbent on the Legislature to act, because DEP has refused to act.

I’ve been trying to force DEP to address these issues for many years.

Most recently, on September 1, 2023, I filed a petition for rulemaking to force DEP to respond to long known threats to public health posed by the presence of hundreds of unregulated chemicals DEP’s own research has documented to be present in NJ drinking water, see:

https://dep.nj.gov/wp-content/uploads/rules/petition/pet20230901.pdf

The petition was published in the October 16, 2023 the NJ Register, see:

https://dep.nj.gov/wp-content/uploads/rules/petition/pet20230901nor.pdf

DEP denied the petition on October 31, 2023 – see the December 4, 2023 edition of the NJ Register (see: 55 NJR 2430(a).) Although I have written to request that the DEP’s denial document be published on the DEP website like all other petition decisions are, the DEP has failed to do so.

One of the primary bases DEP asserted and relied on to deny the petition was a lack of data on the presence and concentrations of these chemicals in drinking water supplies. DEP claimed that lack of data made it impossible to establish as credible scientific basis for regulation.

But yesterday, in response to public comments on adopting the Water Supply Plan, the DEP went way beyond claims about lack of data. DEP now claims that they even lack legal authority to collect that data. 

Let that sink in for a moment.

Then write Governor Murphy and your Legislator to demand that DEP regulate currently unregulated “emergent contaminants”.