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DEP Proposes A Vague “Weight of Evidence” Method To Gut Current Groundwater Quality Standards

Proposal Lacks Any Justification And Would Invite Industry Challenges To Current Standards

DEP Openly Admits That”Less Stringent” Groundwater Protection Standards Would Result

The Murphy DEP just proposed radical changes to the current groundwater quality standards that would effectively eliminate the current public health basis for those standards. That’s not hyperbole – it’s fact that DEP itself openly admits in the proposal.

Before I get to the complex specifics of that DEP proposal (see letter below), let me set the context to shed light on what’s at stake.

Corporate polluters in NJ have long, vigorously and systematically opposed NJ DEP public health based standards to protect drinking water, air, and the cleanup of toxic waste sites.  These standards are based on an explicit policy with the over-riding and explicit objective to protect public health. These science based standards are derived by well established risk assessment methods and are set to achieve a level of health protection of 1 in a million individual cancer risk.

Industry attacks these standards as too stringent, too costly to comply with, and lacking a “sound science” justification. They have done so for decades.

These standards are designed to protect public health from the chemical poisons polluting industries discharge to our air, water, and land. They cost regulated industries hundreds of millions of dollars to comply with. They protect the air you breathe, the water you drink, and the lands you and your kids live and play on every day. There is a reason that NJ – a former heavily petro-chemical industrial State – has not only the most Superfund toxic waste sites, but among the highest cancer rates in the Country if not the world.

These standards are set based solely on science. The scientific methods under which they are derived are expressly designed to insulate the DEP’s adoption of health based standards from other illegitimate and corrupt factors, such as economics, politics, and the junk science advocated by regulated industries like Big Oil, Big Pharma and the Chemistry Council.

For decades, regulated industries have lobbied the Legislature, the Governor, and the DEP Commissioner to relax the laws and regulations that establish these standards and abandon the current public health and risk assessment based approach to environmental regulation, in favor of more friendly economically oriented and flexible methodologies and standards.

For decades, they have successfully chipped away at the margins and significantly eroded the level of protections afforded by these standards. The numerous incremental relief mechanisms industry has won politically are esoteric and far too complex to discuss in this post: litigation; political pressure; budget cuts; elimination of DEP’s science program; privatization; waivers; exemptions; “mixing zones”; ” classification exception areas”; site specific criteria; alternative models; enforcement grace periods; voluntary compliance; self disclosed immunity; and all sorts of other “regulatory flexibility”.

But now, the Murphy DEP is completely folding to this political pressure and structurally eliminating the public health basis for protecting NJ’s groundwater, which provides a significant fraction of NJ’s drinking water supply.

The letter below to DEP Commissioner LaTourette – a former corporate lawyer who knows exactly what he is doing here  –  provides the outline of that massive surrender (more details to follow):

Dear Commissioner LaTourette:

According to the Basis and Background document for the proposed update of the groundwater quality standards, (emphasis mine): (page 4)

“the Department is proposing to add language under N.J.A.C. 7:9C-1.7(c)3i that will enable it to update the specific ground water quality criterion for a constituent with a corresponding MCL in the SDWA rules, N.J.A.C. 7:10, when the Department determines that the “weight of evidence” approach specified at N.J.A.C. 7:9C-1.7(c)3ii would more appropriately address the risk posed by the constituent than the risk addressed by the health-based level used to establish the MCL.”

https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20240102c-bb.pdf

However, the rule proposal document fails to provide a rationale to justify this radical change in methodology, which would effectively eliminate the current health based approach to groundwater protection and replace it by some novel and vague “weight of evidence” methodology.

The proposal itself acknowledges this gutting on the health based standards: (page 13)

“In determining whether a criterion derived in accordance wi©(c)3ii would more appropriately address the risk posed by the constituent, the Department would review constituent-specific data, applicable USEPA guidance, generally accepted scientific evidence, and/or peer reviewed sources of information. The derived criterion that most appropriately addresses the risk may be more or less stringent than the health-based MCL.”

https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20240102c.pdf

In no case should the Department weaken (i.e. “less stringent”) public health protections.

Worse, the proposal fails to provide specific objectives, criteria, and standards to define what“appropriate” means and to establish boundaries on the “evidence” that may be weighed, the weights assigned to different types and sources of evidence, and how the numeric decision point would be established.

Such a vague method invites abuse, junk science, and economic considerations that would undermine critically important public health protections that have been in place to protect groundwater – a major source of NJ’s drinking water – for over 40 years.

The proposal lacks an articulated justification (i.e. specifically, why is the Department proposing this radical change?).

The proposal would make all current health based and MCL driven GWQS vulnerable to attack by regulated industry (e.g. regulatory petitions to relax current GWQS based on a weight of evidence analysis; or case by case site specific or constituent specific challenges at contaminated sites, et al).

The proposal would also allow the Department – in response to political or economic conditions – to initiate rollbacks of longstanding public health protections.

This is totally unacceptable regulatory and science policy.

I strongly urge that the proposal be withdrawn or should the Department proceed to adoption, that it be subject to Legislative veto.

Bill Wolfe