NJEF Provides Cover as DEP Runs Away From Christie Freeze on Drinking Water Standards

Dave Pringle, NJ Environmental Federation. Dave's dissembling to provide political cover for Christie, who NJEF endorsed, has destroyed his credibility. So pucker up Dave, that's one fat ass you're kissing!

This process [i.e. the moratorium, Red Tape Review Group, cost/benefit analysis, and new federal standards policy of Gov. Christie’s Executive Orders 1-3] could just enable them to have a better understanding of what they’re getting themselves in to.” Dave Pringle

Tonight, NJN TV News covered the controversy over DEP’s proposed drinking water standard for the chemical perchlorate. Legal adoption of that standard has been blocked by the Christie Executive Order #1 moratorium and “Red Tape Review” process (the story runs from time 12:45 – 15:22).

The perchlorate standard is the first big test of the Christie DEP because it is stricter than federal standards, is based on public health, and has not been justified by cost/benefit analysis. Therefore, the proposal exposes major flaws in Christie’s Executive Orders #1-3, which mandate cost benefit analysis and seek to limit NJ DEP rules to federal minimums.

Here’s what the DEP said about the US EPA’s federal approach to perchlorate (which shines a bright light on the flaws in Christie policy under EO#2 to rollback NJ’s  strict State standards to federal minimums):

It should be noted that on October 10, 2008 USEPA issued a preliminary regulatory determination for perchlorate through its drinking water Contaminant Candidate List process (73 Fed.Reg., page 60262). USEPA preliminarily determined that a drinking water standard (MCL) for perchlorate is not needed. Instead USEPA will publish a final non-enforceable health based guidance level at the same time its final regulatory determination is issued. The USEPA regulatory determination established a drinking water Health Reference Level for perchlorate of 15 μg/l. The Department has submitted comments expressing concerns with the USEPA preliminary regulatory determination. The main points made in the comments are: 1) A health based level of 15 μg/l is not protective of infants, as they would be exposed to several times the RfD at this concentration. 2) USEPA should adopt a Federal drinking water standard, rather than drinking water guidance, since perchlorate occurs in public water supplies at levels of health concern at a frequency sufficient to warrant regulation. (proposal at page 6. emphasis supplied)

Here’s how DEP explained the critical difference between the stricter NJ law and the federal Safe Drinking Water Act. NJ law allows consideration of only 3 specific factors, which do not include costs. In contrast, the federal law allows consideration of economic costs, so public health is balanced with costs under the weaker federal program. Consideration of compliance costs undermines science and always operates to weaken public health protection. Again, this distinction illustrates major flaws in the Christie cost benefit analysis requirement, which is inconsistent with and in conflict with NJ Safe Drinking Water law:

The [Drinking Water Quality] Institute considers three factors when recommending MCLs: health effects, technological ability to measure the contaminant level, and ability of existing treatment technologies to meet the MCL. For chemicals causing effects other than cancer (noncarcinogens), the goal is the elimination of all adverse health effects resulting from ingestion, within the limits of practicability and feasibility. The Federal standard-setting process considers these factors and an additional economic factor. (proposal at page 19-20)

We wrote about this issue in detail on March 2 (see:”Christie Rule Freeze Kills Drinking Water Standard“) and again to analyze additional drinking water rules impacted by the Christie moratorium after the DEP “stakeholders meeting” on March 10 (See:”Safe Drinking Water Jeopardized by Christie Moratorium“). Note that we assign blame to both the Corzine and Christie Administration’s for the perchlorate fiasco.

DEP refused to go on the record for the NJN story. But, Ed Rodgers, an award winning reporter at NJN reported that DEP stated the Christie moratorium and Executive Orders would have “no impact” on the decision on the perchlorate proposal. This is a flat out false statement by DEP, because the perchlorate proposal was specifically targeted by Executive Order #1 and listed in Attachment A to that Order. DEP is required to comply with all EO’s 1-3.

Because the perchlorate proposal is blocked by the EO#1 moratorium, legally, DEP may not adopt the proposal until the moratorium is over on April 20, 2010. But the proposal legally expires on March 16, before the end of the EO#1 moratorium. The only way to adopt the rule would be to exempt the proposal from the Christie moratorium.

Because DEP re-opened the fromal public comment period until March 15, adoption also would require that DEP respond to public comments in 1 day. Both actions would be deeply embarrassing and illustrate why EO #1 was ill advised and expose the “re-opened” formal public comment period and informal stakeholder processes a sham (* and would confirm exactly the criticisms we have levied).

Furthermore, DEP published a legal public notice, pursuant to EO’s #1, #2 and #3, extending the written public comment period on the perchlorate proposal until March 15 and DEP held a March 10 “informal stakeholder meeting” on the proposal. Both the legal public notice and the meeting document that the perchlorate standard was subject to and NOT exempted from the EO #1 moratorium on the basis of the public health and other exemption criteria in EO #1.

We’re really getting into the procedural weeds here, but as I’ve written previously, DEP Acting Commissioner Martin could have recommended to the Lt. Gov. that the perchlorate standard and other Safe Drinking Water Act program rules be exempt from EO #1 on the basis of public health. The EO provided criteria and set up a procedure that gave Martin a 10 day period to do so. But he clearly did not, as evidenced by the public notice and extension of the comment period.

So it now is obvious that Bob Martin’s DEP – just days before his Senate confirmation hearing on Monday – is scrambling for a way out of the box that Christie’s Executive Order put him in. That is regrettable, but understandable.

But what is not understandable (or tolerable) is Dave Pringle of NJEF’s comments in the NJN story. Shamefully, it is now undeniable that Pringle is willing to mislead the public and provide cover to let Christie and DEP off the hook.

I watched the NJN segment live, so I don’t have a transcript, but Pringle said “NJ law is stronger than federal law”. Has Pringle read EO #2? That Order requires DEP to adopt federal standards and erects barriers to stronger state DEP rules by requiring cost benefit analysis and additional justification for the exception when NJ rules are allowed to be stricter than federal minimums. 

Pringle is basically spun the purpose of the EO’s and moratorium as designed to allow the Christie Administration time to “let them know what they were getting into”. Instead, they are designed to scale back and kill various DEP rules and fundamentally revise regulatory policies and procedures (see extensive analysis of this in the below links).

The perchlorate standard has been delayed for almost 5 years. It was initially recommended by scientists at the NJ Drinking Water Quality Institute back in October 2005. After years of delay and inaction by former NJDEP Commissioner Lisa Jackson, the standard finally was proposed last March 16, of 2009 by DEP Commissioner Mark Mauriello.

We heard nothing publicly from Dave Pringle criticizing this delay. Pringle Chaired the DWQI Health Effects Subcommittee and knew all about the inside story, so his silence over the 5 years of delay is inexcusable.

But when Pringle’s friend Lisa Jackson faced criticism for failing to take action on DWQI scientific recommendations, she was defended by Dave Pringle. In defending Lisa Jackson, Pringle  blamed then Governor Corzine for the problem. Just a little over one year ago, in a national news story, Pingle said:

[DEP Commissioner Lisa] Jackson’s supporters blame Corzine, not Jackson, for New Jersey’s failure to regulate perchlorate.

“I am very disappointed that the state hasn’t moved faster on developing a perchlorate standard,” said David Pringle of the New Jersey Environmental Federation, who sat on the panel that urged the state to regulate perchlorate. “That being said, I fully lay the blame on the governor’s office. DEP was ready to roll two years ago. It was the governor’s office that prevented us from moving forward faster.“  Jan. 13, 2009 ProPublica

The perchlorate standard finally was proposed by DEP in March 2009. It should have been adopted BEFORE the Corzine Administration left office. But it wasn’t.

Instead, Governor Christie’s moratorium has legally blocked its adoption. But has Pringle criticized Christie the way he slammed Corzine? No.

As a result of Christie’s 90 day moratorium and Red Tape Review Process, which ends on April 20, 2010, the DEP proposal will expire (on March 16, 2010). The only way out is for the Governor or DEP Commissioner to explicitly exempt the rule from the Christie moratorium. But this would put egg on the face of the Governor and illustrate how ill advised that Order was. So obviously, DEP doesn’t want to admit doing that.

But Pringle is again providing cover. After blaming and strongly criticizing Corzine  for inaction, he lets Christie of the hook with the same lame and misleading bullshit spin he used to let Jackson off the hook.

And if the DEP does manage somehow to adopt the proposal before Tuesday March 16 deadline – which I strongly doubt – it will only be because of the political pressure brought to bear by the criticism of this blog, real advocates, and media exposure, and surely not the apologetics and political cover provided by Dave Pringle.

For more details on the Christie EO’s, the “Red Tape Review Process”, and what it all means, see:

Water Pollution Enforcement Put Under the Gun of Christie Moratorium

Safe Drinking Water Jeopardized by Christie Moratorium

Oil Industry Seeks Clean Air Rollback Under Christie Moratorium

Clean Water Held Hostage by Christie Moratorium

Democrats in Legislature Join Christie “Red Tape” Environmental Rollback Juggernaut

Christie Rule Freeze Kills Drinking Water Standard for Chemical Found in Rocket Fuel & Military Explosives

DEP Creates Sham Process To Cover Defects in Christie Orders

Christie Regulatory Moratorium Blocks Major Environmental Protections

Christie Environmental Rollbacks Echo Whitman’s Failed Policy

Christie Regulatory Czar Given The Power and Tools To Rollback Environmental and Public Health Protections

Christie off on the “Right” Foot – Executive Orders Attack Environmental Protections