Is DEP Faking It on Proposed New Draft Interim Groundwater Standard for PFNA?
DEP Evades Drinking Water Standard MCL Regulatory Process
DEP Gives Chemical Industry A Big Heads Up and Opportunity To Kill
DEP Abandons Historic Precautionary & Protective Approach to Scientific Uncertainty on Health Effects
[Update: 3/23/14 – In light of new information, I need to clarify claim that DEP is evading MCL regulatory procedure, see: When The Spell is Broken. – end update]
In a deviation from historic policy and practice, last Friday, DEP quietly posted on its website a request for public comment on what is sure to be a controversial new “Interim Specific Groundwater Quality Criterion” (ISGWQC) for the toxic chemical perfluorononanoic acid (PFNA), see:
REQUEST FOR PUBLIC INPUT ON THE DRAFT INTERIM SPECIFIC GROUND WATER QUALITY CRITERION AND PRACTICAL QUANTITATION LEVEL FOR PERFLUORONONANOIC ACID (PFNA) – MARCH 14, 2014
Oh boy, that’s a mouthful – What the hell is PFNA and an ISGWQS you ask?
And therein lies the rub. Work with me on this, it’s complicated.
But before I can get to why I think DEP may be “faking it”, I need to lay out a little background.
- What are the environmental & health issues with PFNA?
PFNA recently has been discovered in the groundwater and drinking water of several south jersey towns, most visibly in media coverage is the situation in Paulsboro. I wrote about the implications of that situation in this post: Paulsboro NJ Suffers Another Toxic Assault.
The suspected source of the chemical is the Solvay Solexis chemical plant just north of town in Thorofare. The plant has failed to cleanup groundwater contamination and EPA and DEP regulators have not enforced federal and state laws to mandate a complete and protective cleanup.
So, the case also highlights major regulatory failures as well, particularly in the RCRA Corrective Action program, a toxic site cleanup program enacted by Congress in 1984, which, 30 years later, NJ still has not been delegated authority from EPA to implement.
Attorney and former DEP Commissioner Bradley Campbell is representing Paulsboro in a lawsuit against Solvay-Solexis, alleging an “imminent and substantial risk to human health and the environment”. That lawsuit raises a host of significant controversial issues. For details, see this.
Campbell capably nails the scientific, regulatory, and political issues as the obvious source for this Inside EPA national story:
Simultaneously, the mayor of Paulsboro is appealing to New Jersey Gov. Chris Christie (R) to intervene and task the state with undertaking blood studies of residents, using the state spill law and other laws to force Solvay to provide alternative drinking water in the interim, hold public meetings on the risks at the site, and reconvene the NJDEP Drinking Water Quality Institute, in order for it to develop standards for PFCs in drinking water.
We’ve been a longtime critic of the fact that the Drinking Water Quality Institute has not met since September 2010, while DEP regulatory standards programs are in disarray, and there is a huge backlog of scientific recommendations to tighten drinking water standards that are being ignored by the Christie DEP.
So, the Campbell lawsuit and the DEP’s draft ISGWQC for PFNA shine a huge spotlight on some major league problems at the DEP.
According to DEP, exposure to PFNA is associated with adverse health effects:
Perfluorononanoic acid (PFNA, C9) is a member of the class of chemicals called perfluorinated compounds (PFCs). These chemicals have many industrial and commercial uses, are chemically non-reactive, and do not degrade in the environment. Because they are water soluble, they can contaminate surface water and ground water used as drinking water sources. They are not removed from drinking water by conventional treatment processes, but can be removed by granular activated carbon or reverse osmosis and possibly other non-standard treatment processes.
PFNA has been found less frequently and at lower concentrations than the more well-known PFCs, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), in drinking water studies from the U.S. and around the world. Drinking water levels (up to 72 ng/L and 150 ng/L) in wells of two public water supplies in Gloucester County, NJ were higher than reported elsewhere in the world. PFNA has also been recently found at lower levels (up to 56 ng/L) in wells of several other Gloucester County public water supplies. PFNA in these wells is believed to result from past releases from a Gloucester County industrial facility.
- What are the regulatory issues?
Here is DEP’s explanation of an ISGWQC:
Regulatory Background: The Interim Specific Ground Water Quality Standard process is initiated when the Site Remediation program, or other regulatory program within the Department, identifies the need for a Ground Water Quality Standard (GWQS) for a contaminant that is not included in the Ground Water Quality Standards (N.J.A.C. 7:9 Appendix Table 1). Calculation of an ISGWQC combined with the PQL is used to develop the Interim Specific Ground Water Quality Standard. The Site Remediation Program deems the Interim Specific Ground Water Quality Standards to be ground water remediation standards pursuant to the Remediation Standards at N.J.A.C. 7:26D-2.2(a)1. See: http://www.nj.gov/dep/wms/bwqsa/gwqs.htm for additional information on GWQS.
It is important to note exactly what an ISGWQC is, where and when and how it applies, and what it is not:
1) t is NOT a drinking water standard (i.e MCL). So, water companies will not be required to test for it; disclose results to consumers; treat to remove it to the level that DEP proposes in the IGWQS (20 nano grams/L)
2) it is NOT promulgated as a regulation based on a recommendation from the NJ Drinking Water Quality Institute. So, DEP dodges the reality that the DWQI is dormant or dead.
3) it is Limited to the site remediation program, where groundwater quality standards are implemented in the cleanup process. So, the DEP’s draft ISGWQS, if adopted as final – which is a big “if” at this point – wil only apply in a very limited number of sites where PFNA contamination os suspected.
4) it is NOT adopted a a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.
- So what is the problem?
DEP is posting the draft ISGWQC on the DEP website and inviting public comment. DEP announced that a more detailed technical document will be posted next Friday (3/21/14). What’s wrong with that?
Historically, DEP merely posted a notice on the website regarding their adoption of an IGWQC. DEP provided no public comment opportunity. That process is allowed under DEP rules, which have nothing about a public comment process.
The DEP’s new approach to providing more public participation, at best, is done in deference to industry criticism.
But, at worst, more significantly and more likely, DEP’s provision of additional opportunity for public comment while revising the basis for action mirrors sophisticated chemical industry tactics used in two recent legislative rollback efforts:
1) the attempt to stack the Drining Water Quality Institute with industry representatives, alter the procedures for setting regulatory standards, and alter the scientific factors that may be considered by DEP in setting those standards, see: Should the Chemical Industry Have a Role in Writing Your Drinking Water Standards?
2) the bid to revise the process for recommending sites for consideration for listing as Superfund sites, see: NJ Legislators Propose To Change State Role In Superfund Site Listing Process
In a sophisticated attempt to game the regulatory system, both those industry strategies create the appearance of improving the process and providing more transparency, while actually biasing the process in favor of industry interests.The DEP’s ISGWQC shares exactly those misleading appearances, while failing to pull the real regulatory trigger.
1. The process helps industry lobbyists more than public interest advocates.
DEP’s basis and background document acknowledges that there is scientific uncertainty regarding health effects. What’s wrong with that?
Plenty. And this takes me to my concern that DEP is faking it.
If DEP seriously wanted to address drinking water risks of PFNA, then the appropriate procedure to do so if via a referral to the Drinking Water Quality Institute to develop a recommended drinking water MCL.
DEP would then adopt the DWQI recommended MCL as an enforceable regulatory standard. Water companies would be required to monitor, treat and inform consumers about PFNA, just like all other regulated drinking water contaminants.
The chemical industry would be provided ample opportunity to challenge the DWQI science, risk assessment, and the DEP regulation in the formal and transparent rule-making process.
But, DEP didn’t do any of this. And that’s what troubles me.
DEP even deviated from their historical practice of simply announcing a ISGWQI as a fait accompli. Instead, DEP is allowing for a 30 day comment period and going beyond even that to provide an additional week heads up.
So, what’s wrong with giving more time for public comment?
Plenty – more time gives industry scientists and lobbyists more opportunity to intervene behind the scenes without the accountability that the formal regulatory process provides.
Similarly, more time and opportunity to comment gives industry an advantage, as no NJ environmental group has adequate scientific or legal expertise to credibly and effectively intervene. We must simply admit that industry has the public badly outgunned on maters of scientific and legal expertise required to participate effectively in complex regulatory proceedings like this.
The longer DEP allows this proposal to twist in the wind, the more likely it is to be killed.
2. The proposed ISGWQC abandons DEP’s historial precautionary approach to scientific uncertainty regarding health effects.
Traditionally, the DEP’s approach to addressing legitimate scientific uncertainty in evaluating the health effects and regulating toxic chemicals is to err on the side of caution and build in conservative factors, based upon the most sensitive population exposed. That is a legally and scientifically valid and appropriate “precautionary” policy approach to science.
At the same time, a longtime tactic of industry to derail, delay, and weaken costly environmental and public health regulations is to exploit uncertainty and “manufacture doubt” about the science.
We recently wrote about how the tactics exposed by Professor David Michaels’ classic book “Doubt is their product: How industry’s assault on science threatens your health” were deployed in NJ by Dupont corporation with respect to their toxic chemical PFOA, see:
So, depending on who is making the argument, uncertainty can work both ways – as a rationale to err on the side of caution or to provide an excuse to do nothing.
In this case, the DEP seems to be using scientific uncertainty in exactly the wrong way. Instead of a precautionary approach, DEP is pursuing an industry friendly approach that errs on the side on resolving the uncertainty in a manner that is certain to poison the public and the most sensitive population.
That change in scientific approach to uncertainty in found in this paragraph, which explicitly states that in the summary:
Key Uncertainties
• Ongoing exposure to PFNA at 20 ng/L (0.02 μg/L) in drinking water is estimated to contribute an additional 4 ng/ml, on average, to the PFNA concentration in blood serum already present in the general population. Thus, the average serum level in communities with drinking water at this concentration is estimated at about 5.5 ng/ml, 3.7-fold higher than the average serum level of about 1.5 ng/ml in the adult general population (who are assumed to have no drinking water exposure). A serum level of 5.5 ng/ml is well above the 95th percentile PFNA serum level of 4.0 ng/ml in the adult U.S. general population. In infants and children, serum levels from ongoing exposure to 20 ng/L PFNA in drinking water would possibly be greater than in adults, due to their greater water consumption on a body weight basis. Several potentially important health endpoints have been associated with PFNA in the human general population exposure range, although it is not clear whether these associations reflect causality. Thus, there is uncertainty about the extent of protection provided by a criterion that will result in serum PFNA levels several-fold above the general population range.
We urge competent public interest toxicologists to look closely at this particular issue of how legitimate uncertainty was resolved numerically.
The bottom line is that this DEP ISGWQC is an unusual deviation – both procedurally and substantively – from past practice.
Both the process and the substance appears to benefit industry at the expense of public health.
In fact, DEP may have made errors in not promulgating this IGWQC as a MCL regulatory standard, thus inviting industry legal and political challenge – thereby sabotaging their own work instead of doing the right thing (which would shine a spotlight on DEP’s failures regarding the DWQI).
Thus, the “faking it” concern.