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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”.

My Post Exaggerated The Urgency Of The Sullivan County Incinerator Project

Late yesterday afternoon, based only on an email action alert from the Catskill Mountainkeeper, I posted a piece urging government officials and activists to oppose “construction” of a new garbage incinerator in Sullivan County.

That was misleading and I apologize for that. I was lazy and didn’t do my homework. I have deleted the post.

Unfortunately, I relied exclusively on Catskill Mountainkeeper’s action alert. So I posted up their info without reviewing it myself. I rarely do this, but Mountainkeeper has proven a very reliable source of activism.

This morning, I read the documents from Sullivan County – the Sullivan County Solid Waste Plan does not site and approve construction of a new garbage incinerator. Instead, it calls for a “feasibility study” of garbage incineration as a solid waste management option.

I am glad that Mountainkeeper and other activists are opposing this project early on, but I felt that my post misled readers by creating a false sense of urgency, so I deleted it.

There is likely several years of “feasibility study” and “planning” before any actual facility would be sited and financed and permitted.

I think Mountainkeeper was premature and misled people in how they conveyed that action alert – my email from Mountainkeeper came with two large red STOP signs : “STOP the Sullivan County Incinerator” with a warning that little time was left in the public comment period. That’s just inaccurate.

Apparently, you can’t rely on even good environmental groups.

My apologies.

My credibility is crucial and something I take very seriously. It won’t happen again.

DEP Is Effectively Engaged In Deregulation, But Without Revising Regulations

DEP Is Violating NJ Supreme Court Doctrine On Rulemaking

Bear with me for a moment as I try to establish the context to illustrate the insidious and lawless behavior of the Murphy DEP.

This is a legally complex situation, but it can be summed up with basic common sense:

requirements to adopt regulations that have substantive impacts apply the same way to the repeal or revision of regulations that have similar substantive impacts. Regulation and deregulation must follow the same rules.

Administrative agencies can only act according to authorizing laws passed by the legislature. Laws require that administrative agencies adopt regulations in order to implement and enforce laws enacted by the legislature.

Adoption of regulations requires public notice, public hearings, an opportunity for public comment, and agency response to public comments. All of this constitutes what is called “the administrative record” and provides the basis for legislative oversight and judicial review.

This procedure allows the regulated community and the public to be aware of and participate in policy decisions that impact their lives. It also holds the executive branch accountable to the public, to science, and to law. It satisfies the “due process” requirements of the US and NJ Constitutions and the procedural requirements of the Administrative Procedure Act.

The NJ Supreme Court has stipulated six (6) factors that determine when an agency’s actions constitute rulemaking that triggers the formal procedures for adopting a rule (i.e. public notice, public hearings, an opportunity for public comment, and agency response to public comments.)

In the leading case known as Metromedia, Inc. v. Director, Div. of Taxation, the Supreme Court ruled (emphasis mine):

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

These factors apply to both when an agency is adopting a rule and when it is repealing a rule (or revising a longstanding regulatory policy or interpretation of the authorizing statute or the rule).

Which takes us to what the Murphy DEP is doing: they are revising statutory and regulatory interpretations and longstanding regulatory policies. And they are doing that without going through the formal rulemaking process.

Essentially, they are scaling back regulatory protections, which is a form a deregulation. This triggers the 5th and 6th factors, among others, in the Supreme Court’s Metromedia decision.

My letter to NJ Senators on the Senate Environment Committee outlines this abuse.

This abuse is particularly egregious because DEP Commissioner LaTourette is a former corporate lawyer and no way would his former corporate clients tolerate the DEP’s regulatory policy revisions if they applied to them and were more stringent.

So why are environmental groups tolerating it?

Dear Senators –

The DEP is interpreting the Water Quality Planning Act extremely narrowly and reversing historic policy and regulatory interpretations to approve wastewater treatment plants and extensions of sewer lines into rural, agricultural, forested, and environmentally sensitive lands. (see this analysis).

This new narrow statutory interpretation appears to contradict the legislative intent of the WQPA, as evidenced by longtime legislative support for prior DEP regulatory policy, which highly discouraged and strictly reviewed extension of wastewater infrastructure to support new development on environmentally sensitive lands.

DEP is revising regulatory policy and adopting new policies in the absence of formal notice and comment rule making. The new DEP regulatory interpretations are highly substantive. These new interpretations meet the criteria that trigger rule making, according to the NJ Supreme Court’s decision in Metromedia, Inc. v. Director, Div. of Taxation

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

Accordingly, I urge you to conduct legislative oversight and restore protections for water resources under the WQPA.

DEP Ignored Environmental Concerns Of Hundreds Of Local Opponents

Environmental Groups Threw In The Towel And Didn’t Even Try To Stop It

The Murphy DEP just issued a Water Quality Management Plan approval of extension of sewers to serve a proposed warehouse complex – 4 warehouses of over 1.5 million square feet on 160 acres of farmland:

The amendment, identified as Russo Warehouse Harrison, also known as Swedesboro Warehousing, expands the sewer service area (SSA) of the Gloucester County Utilities Authority (GCUA) Sewage Treatment Plant (STP) by 73.07 acres in Harrison Township, Gloucester County. The remaining 87.25 acres of the project site are located within the

already approved SSA of the GCUA STP within Woolwich Township. The overall project is for four proposed warehouses (of over 1.2 million square feet).

The DEP approval will be published in the October 7, 2024 edition of the NJ Register.

Once again the media is ignoring the regulatory role of DEP and focusing exclusively on local government. According to the Philadelphia Inquirer, this warehouse project is part of a massive development scheme:

A North Jersey real estate firm’s preliminary plan for 10 warehouses, 84 affordable and 116 conventional housing units, a 100-room hotel, and a buyers-club style retail building in Richwood already has been approved by the township’s Joint Land Use board. …

Meanwhile, a proposal for four warehouses totaling two million square feet near the township’s Mullica Hill section, rejected by the township after a surge of public opposition, is likely on again following a state Superior Court ruling last year that found the rejection to have been “capricious.”

I) DEP Reverses Policy On Sewering Farmland – Murphy DEP Worse Than Whitman

Once again, the Murphy DEP reversed the DEP’s historic policy to strongly discourage and block extension of new sewer lines to serve intensive new development on rural farmlands.

DEP’s former  policy, which I was part of crafting and implementing at DEP during the McGreevey administration (e.g. see Executive Order #4), integrated land use and water resources issues and imposed rigorous water quality standards and environmental review requirements to protect water quality.

Rejecting that historic rigorous regulatory approach, the Murphy DEP has reversed course and allowed a lax “site specific amendment” review. The Murphy DEP has informally interpreted the WQMP regulations so narrowly as to be a meaningless exercise that results in an abdication to corrupt local government “home rule” land use decisions. In this case, there is another abuse of the “redevelopment” loophole in the NJ Municipal land Use Law that allows developments to bypass local Master Plan and zoning ordinances.

Even the pro-development “Open For Business” Whitman administration retained some of those McGreevey DEP water quality regulatory policies. After she faced huge public and media criticism for sewer extensions to farmlands and proposed clean water regulatory rollbacks, Whitman admitted error and went to Princeton University to make a speech titled: “Sewers, the Last Frontier in Sprawl”.  Whitman issued an Executive Order # 109 that required enhanced environmental reviews 25 years ago. Whitman even bragged about that in the biographical sketch she submitted for the US Senate Confirmation hearing for President Bush’s EPA Administrator:

Governor Whitman encouraged greater use of the revised State Development and Redevelopment Plan as a tool for “smart growth,’‘ and encouraged redevelopment of cities through programs to streamline cleanups of abandoned industrial “brownfield” sites. She also established a new watershed management program and in 2000 proposed an overhaul of the state’s water regulations to direct future development to areas already approved for sewer service. […]

As the Governor of our Nation’s most developed State, she initiated and passed a landmark $1 billion bond measure to preserve open space. By the time this program is finished, New Jersey will have preserved 1 million acres of farmland, forests, watershed and urban parkland.

Responding to my testimony to the Senate that harshly criticized Whitman’s record and her attempt to roll back DEP’s water quality regulations, Whitman’s testimony specifically touted her WQMP regulations and restrictions on extensions of sewers to farmland:

Response. The proposed watershed rules are one of the most comprehensive continuous planning regulations in the country. They address the water resource impacts of new development that will occur if the area will be on sewers or use septic systems. Ensuring that new development does not cause the pollution of the State’s water resources is a main purpose of the rules. The rules also establish a watershed management planning program for the entire State to address existing problems and develop long term solutions for areas that are continuing to develop. The legislative action on the rule was more a reaction to the inclusion of a linkage to New Jersey’s State Development and Redevelopment Plan rather than a concern about the need for the proposed planning efforts to protect the State’s water quality and water quantity.

So let that sink in: Governor Murphy and his DEP are WORSE than WHITMAN!

The dismantling began under the Christie DEP (see Christie Executive Orders on “regulatory relief”(see EO#2) and elimination of “Red Tape” (see EO#3).

II) DEP Abdication of Legal Duty To Protect Water Resources

Now, the Murphy DEP has expanded that Christie rollback (without the accountability provided by formal notice and comment rule making) in their interpretation of various regulatory provisions and standards related to water quality and stormwater management.

Here’s a stunning example of that abdication to local government by the Murphy DEP:

the Department considered the land uses allowed in adopted zoning ordinances, future land uses shown in adopted municipal and county master plans, and other local land use objectives. The Woolwich Township Administrator/Clerk confirmed through email on March 2, 2022, that the proposed project is consistent with the Woolwich Township zoning and Master Plan. The Solicitor for Harrison Township confirmed through email on March 5, 2022, that the proposed project is consistent with the land uses allowed with the Harrison Township zoning and Municipal Master Plan. Gloucester County deemed the project consistent with the Gloucester County Development Management Plan’s Goal Statements on February 24, 2022.

Think about that for a moment: an email from a local clerk is sufficient evidence for DEP to rely on regarding their review of land use issues! Are you kidding me?

Here is another example of DEP abdication to protect water resources and reliance on local government:

RESPONSE TO COMMENTS 2 THROUGH 9: The Department acknowledges the commenters’ concerns; however, the above issues are beyond the scope of the WQMP amendment review. The WQMP Program does not determine where these projects should occur or the nature of these projects. The role of the WQMP Program is to review applications submitted to the Program against the criteria established in N.J.A.C. 7:15. Local government, through master planning and zoning ordinances, determines the type of development and the density level the municipality desires for an area.

Residents raised numerous relevant concerns regarding impacts to water quality, wetlands, flooding and other environmental issues. DEP totally ignored them. Here is the DEP’s response. It is another an example of the lax environmental review by the Murphy DEP, which completely ignores stormwater and non-point pollution impacts on water quality:

RESPONSE TO COMMENTS 13 AND 14: The WQM Plan amendment is just one approval required from the Department and is not meant to address all possible issues related to the project.

16. RESPONSE: The WQMP Program does not review for compliance with the Stormwater Management rules at N.J.A.C. 7:8, and compliance with the Stormwater Management rules is not a prerequisite for SSA eligibility.

By their own words, DEP conducted a piecemeal environmental review and abdicated to local government.

The DEP covers their ass legally with this caveat at the very end of the WQMP approval:

Sewer service is not guaranteed should this amendment be adopted as it represents only

one part of the permit process and other issues may need to be addressed. Inclusion in the SSA as a result of the approval of this amendment does not eliminate the need to obtain all necessary permits, approvals or certifications required by any Federal, State, county, or municipal review agency with jurisdiction over this project/activity.

III) Next Steps

When the warehouse developer applies for various DEP wetlands, stormwater, stream encroachment, and water pollution permits, their lawyers will argue that DEP must approve the permits because they are “consistent with the water quality management plan”.

This perverts that law (Water Quality Planning Act), which prohibits DEP from issuing any permit that is inconsistent with the water quality management plan.

The lawyers for the developers will also argue that they “relied” on the DEP’s WQMP approval as a green light and invested millions of dollars in planning and engineering for the project permits.

The lawyers will then use that “reasonable investment backed” permit application to threaten DEP that any permit denial would be reversed by the NJ Courts based on the “reliance” doctrine, and the “takings” doctrine.

DEP will fold and approve the permits.

This is how the corrupt game is played. Get it?

A Blizzard Of EPA Press Releases On Federal Grants

In the last year or so, I’ve been hit with a blizzard of EPA Region 2 press releases touting EPA distribution of grant funds from various federal infrastructure laws.

They all follow the same script:

• they all make claims of “historic” and “transformational” change;
• they all tout the leadership of President Biden (which has recently shifted to President Biden – Vice President Harris);
• they all include political quotes, but only from Democratic officials: Congress, Gov.; State legislators and local officials, creating a highly partisan impression;
• they all lack basic background information on the particular environmental issues presented and funded and explain how the grant money will make change or improve the status quo; and
• most all of them generate favorable media coverage (and support from environmental groups), based exclusively on the EPA press release (i.e. they illustrate stenography and cheerleading)

I got another one just now titled:

• EPA $1 Million Brownfields Cleanup Grant to Revitalize Contaminated Sites in Woodbine

It’s not much money, and Cape May County is Trump country, so my curiosity was piqued. So I decided to ask some basic question – lets see how (and if) EPA press contact responds to these basic questions:

Hi Stephen – I’m a retired DEP policy planner and write about NJ and national environmental policy issues. A few questions on this press release:

1) Google maps shows the former Hat Company site at 608 Dehirsh Avenue as adjacent to the local MUA and what looks like a water tower, as well as residential structures. Is there groundwater contamination at this site? If so, where is the source water well field? If GW contamination, has vapor intrusion potential been documented and remediated? What is the status of contamination and remediation at this site?

2) Same questions for the old Woodbine School at 808 Franklin Street. What was the source of contamination at the school? Was contamination present when school was occupied?

3) Does the municipal landfill have a DEP approved closure plan? Is there a methane recovery system and/or groundwater pump/treat system installed?  Has a CERCLA HRS been performed at the site? If so, what was the score? What is the status of contamination and remediation at this site?

It would help if EPA provided a link to site specific background information on contamination and remediation.

4) Can you send a link to the program priority criteria for selecting sites and allocating available funds?

5) Woodbine is 1 of only 3 Cape May County municipalities that voted Democratic Party (Clinton/Biden) in 2016 and 2020 Presidential elections, see:

https://nj.gov/state/elections/assets/pdf/election-results/2016/2016-gen-elect-presidential-results-cape-may.pdf

https://www.nj.gov/state/elections/assets/pdf/election-results/2020/2020-official-general-results-president-capemay.pdf

How do you respond to those who question the role of partisan politics in EPA administration of available funds? Is this a legitimate concern? Frankly, I’ve been troubled by the partisan nature of EPA press releases of late.

Thanks for your prompt reply.

Bill Wolfe