Groundhog Day: Chemical Industry Lobbying Forced NJ DEP To Abandon Proposed Water Quality Standards For PCB’s And Other Toxic Chemicals

Murphy DEP Bowed To Same Political Pressure In Current Proposed “Variance” Loophole

Monsanto Is Not The Only One Flat Out Lying About PCB’s

Smoking Gun Industry And DEP Documents Expose Corruption

(Source: NJ Chemistry Council Powerpoint Presentation To NJ DEP On Proposed Water Quality Standards For Toxic Chemicals PCBs, Mercury & DDT. These standards were known as “wildlife criteria”. Links to documents provided in text below.)

This post drills down to better explain my initial post on the Murphy DEP’s proposed “variance” loophole,  see:

• Murphy DEP Proposed Huge Loophole In Clean Water Standards

Today’s post provides some relevant history of DEP’s failed attempts, back in 2002, to regulate PCB’s and later to propose a “variance” loophole.

It then links that history to the current DEP proposed “variance” loophole and to the recent DEP PCB lawsuit against Monsanto.

The chart above is from a powerpoint presentation to the DEP by the chemical industry, sewer authorities, and NJ business community on DEP’s 2002 proposed water quality standards that would have set strict limits on industry and sewer plant discharge of the toxic chemicals PCB’s, mercury and DDT. These standards were known as “wildlife criteria”.

There are two highly revealing points the industry makes in that chart that are directly relevant today:

1) the industry is explicitly opposing a DEP regulatory proposal to establish strict water quality standards for PCBs and other toxic chemicals due to the costs of compliance with them; and

2) the industry is explicitly threatening to seek “variances” (i.e. a loophole) to avoid the costs of complying with those strict standards.

Importantly, the Clean Water Act does not allow consideration of costs in developing water quality standards, which are required to be based exclusively on the best available science. According to EPA: 

• Criteria must be based on sound scientific rationale.

• Factors such as technological feasibility, social and economic costs, and the benefits of achieving criteria levels are not considered in criteria development.

The Act also provides authority to State’s to set more stringent standards than federal minimums:

As recognized by section 510 of the Clean Water Act, States may develop water quality standards more stringent than required by this regulation.

This industry powerpoint presentation – made in a secret meting with DEP managers – was successful. The DEP abandoned the 2002 proposed regulation (see smoking gun DEP email and this followup smoking gun DEP “Hot Issues” briefing memo to Commissioner Campbell.

We disclosed not only this industry powerpoint presentation, but a smoking gun letter from the chemical industry to the DEP that documented a private meeting with the DEP Commissioner and thanked DEP for abandoning those costly regulatory standards.

(Full disclosure: I was employed by DEP at this time as an advisor to DEP Commissioner Campbell and initially was the manager of the DEP workgroup that drafted the rule proposal, which was proposed with the DEP’s first round of “Category One” stream upgrades. That’s how I got these astonishing smoking gun documents.)

At the time, we released these smoking gun documents publicly, along with EPA letter to DEP and US Fish and Wildlife Biological Opinion documents, but they were largely ignored by NJ media and lame environmental groups, see:

• NEW JERSEY DEP ABANDONS TOUGHER TOXIC STANDARDS

Trenton — Abandoning a standard nearly ten years in the making, the
New Jersey Department of Environmental Protection (DEP) has quietly walked away
from proposed reductions in the discharge of mercury, PCBs and DDT into the
state’s waterways, according to documents released today by Public Employees
for Environmental Responsibility (PEER). The abandoned standards were designed
to protect the bald eagle, peregrine falcon and other river-dependent species
from the effects of toxic buildup.

Due to industry opposition, DEP has dragged its feet in ratcheting down water
pollution discharges, despite repeated entreaties from federal agencies and
strong support from DEP’s own scientists:

• In a June 26, 1996 Biological Opinion, the U.S. Fish and Wildlife Service
  found that New Jersey’s surface water quality standards would not protect
  bald eagle and peregrine falcon populations from bioaccumulation of mercury,
  PCBs and the pesticide DDT. As a result, the U.S. Environmental Protection
  Agency directed DEP to develop new wildlife criteria to minimize adverse effects
  on species federally listed as threatened or endangered;

• NEW JERSEY WILL MISS WEDNESDAY’S WATER QUALITY DEADLINE

Internal DEP emails and memos reveal that Commissioner Bradley Campbell’s
personal off the record meeting with chemical industry lobbyists doomed the
standards initially proposed by the DEP in November 2002. That proposal was
allowed to expire. But instead or re-proposing the standards, DEP has been working
behind-the-scenes with the chemical industry on a “variance” loophole
that would shield polluters from the toxic standards in the event that the U.S.
Environmental Protection Agency federally imposed the proposed standards on
New Jersey. The DEP’s original proposal did not include the variance loophole.

• FEDS SAY NEW JERSEY WATER STANDARDS DO NOT PROTECT WILDLIFE

Trenton — New Jersey’s latest stab at water quality standards does not pass federal muster because it leaves bald eagle, peregrine falcon, freshwater mussels and other aquatic life vulnerable to the effects of mercury, the pesticide DDT and the toxic effects of PCB’s, according to formal comments filed by the U.S. Fish and Wildlife Service.

In addition to the recently proposed Murphy DEP variance, this history is directly relevant to DEP’s recently announced lawsuit against Monsanto for damage caused by PCBs.

Although the DEP lawsuit against Monsanto outlines the scientific and regulatory history going back to the late 1930’s, not surprisingly, the Murphy DEP omits the above directly relevant scientific and regulatory history from the legal complaint against Monsanto on PCBs and omits it from the regulatory variance proposal.

 The industry and DEP smoking gun documents are relevant today because:

1) the Murphy DEP just proposed to expand the same “variance” (i.e.”regulatory relief”, or loophole) that the chemical industry threaten to use to avoid compliance with DEP’s water quality standards for toxic chemicals including PCB’s (if adopted and finalized) (read the DEP proposal); and

2) the Murphy DEP and AG just announced a lawsuit against Monsanto on the damage caused by PCB’s, in which they flat out lie in the legal complaint.

In the Monsanto legal complaint, the DEP makes this extraordinary claim, which is not only false, but a flat out lie.

First, DEP claims that they were misled by Monsanto: (@p.2-3)

2.  [….] For decades, Old Monsanto knew that its commercial PCB formulations were highly toxic and would inevitably produce precisely the contamination and human health risks that have occurred. Yet Old Monsanto misled the public, regulators, and its own customers about these key facts, maintaining that its PCB formulations were safe, were not environmentally hazardous, and did not require any special precautions for use or disposal.

Second, DEP claims that had they known that PCB’s were so toxic, that they would have done something to protect human health and the environment:

271. Had the State been warned about the likelihood of contamination of its natural resources with PCBs, it would have taken steps to limit, restrict, prevent, or control such contamination.

“The State”, specifically the DEP, was warned by scientists – including EPA and the US Fish and Wildlife Service – and they knew “about the likelihood of contamination of its natural resources with PCBs” decades ago.

In a 1996 formal Biological Opinion, USFWS also criticized DEP water quality stands for failure to protect wildlife. EPA relied on this BO to direct the DEP to upgrade State water quality standards. USFWS blasted DEP for their failure to adopt protective standards (e.g. see USFWS 2007 comments on DEP proposed water quality standards:

The ongoing national criteria consultation referred to above pertains to all listed species, both wildlife as well as aquatic life and additionally includes the National marine Fisheries Service as a federal participant. Our agencies jointly developed protective  Wildlife Criteria for DDT, PCBs and mercury that were to be implemented as part of the Biological Opinion’s Terms and Conditions. Staff from the Service, USEPA, and NJDEP worked together closely in the derivation of the wildlife criteria and agreed that the end product, a set of three protective and defensive criteria based on the best and most appropriate science available, should be adopted by the state.

These criteria, derived on Buchanan et al (2001) have not been implemented by the State of New Jersey and have not been promulgated by USEPA. The NJDEP should address this protection deficiency, since existing numerous State of New Jersey Water Quality Standards remain unprotective for mercury and DDT. Total PCB criteria adopted in 2006 have closed the gap from previously unprotective criteria,…. attainment of New Jerseys PCB standard is stalled  due to implementation issues that need clear and decisive resolution, regardless of the actual numeric criteria.

Based on these scientific warnings, the DEP proposed strict water quality standards explicitly designed to protect wildlife from PCB’s and other toxic chemicals.

But the DEP abandoned those proposed standards as a result on industry pressure.

The DEP is flat out lying (by material omission) and denying the full scientific and regulatory history about what they knew, when they knew it, and what they did or didn’t do with the knowledge.

And, aside from the half truths and flat out lies, the following DEP claims especially disgust me, because this is exactly why the DEP prosed strict water quality standards back in 2002:

9. On a statewide basis, Monsanto’s PCBs have caused significant, long-term damage to New Jersey surface waters, sediments, ground water, fish and other aquatic life, birds and other wildlife, soils, and air. Hundreds of waterbodies covering over 6,000 river miles and over 14,000 lake acres, as well as over 400 square miles of bays and estuaries, are known to be impaired due to PCB contamination.

10. Defendants’ responsibility for such statewide contamination is punctuated by Old Monsanto’s longstanding practice of recommending that its customers dispose of liquid PCB wastes directly into sewers despite knowing that this would directly introduce PCBs into surface waters. Old Monsanto also urged customers to vent PCB vapors to the atmosphere despite knowing that this would directly introduce PCBs into air, soils, and surface waters.

11. In addition, Defendants owned, operated, or oversaw activities at the Bridgeport Site, where Old Monsanto used PCBs as part of its manufacturing operations. As a result of Defendants’ practices at the Bridgeport Site, important New Jersey natural resources near the Bridgeport Site have been damaged. Such damage includes contamination and pollution of surface waters (such as the Delaware River and Birch Creek), fish and other aquatic life, birds and other wildlife, ground water, sediments, soils, and air in the vicinity of the Site. These resources are contaminated by PCBs, as well as by pollutants such as benzene and chlorobenzene, toluene, trichloroethylene, vinyl chloride, and many others. […]

60. New Jersey’s ecosystems, however, are vulnerable to pollution, degradation, and destruction from the discharge of hazardous substances, contaminants, and pollutants. Contamination from the discharge of hazardous substances, contaminants, and pollutants is one of the major causes of biodiversity loss in New Jersey. {…]

104. In addition to being highly toxic to humans, Monsanto’s commercial PCB mixtures are highly toxic to fish and wildlife.

The following DEP legal claim is galling, in light of the fact that, way back in 1996, the US Fish and Wildlife Service issued a Biological Opinion that found that NJ DEP’s surface water quality standards were lax and did not protect fish and wildlife from PCB’s: