An Open Letter
Will The Murphy DEP Walk The Talk On “Forever Chemicals”?
Dear Chairman Smith and Commissioner LaTourette:
I am writing to suggest the need for and to start a public dialogue and formal process for developing a NJ State strategic response to President Trump’s Executive Orders and the Trump administration’s radical attack on government and their program to “dismantle the administrative State”.
Such a strategy would involve legislative, regulatory, litigation, and public information components, as well as legislative appropriations to support the work. This strategy would include legislative oversight hearings as well as DEP public hearings.
Thus far, it appears that NJ’s response is reactive, ad hoc, and mostly reliant on litigation.
Perhaps I can offer one concrete example of how DEP’s regulatory authority could serve to provide both damage control and effective reforms to improve protections for NJ’s public health and environment.
I plan on filing a formal petition for Rulemaking pursuant to the NJ Administrative Procedure Act to force DEP to respond, but offer this example as a good faith attempt to work collaboratively.
According to news reports, apparently, the Trump Whitehouse, OMB, or EPA withdrew a pending EPA rule proposal on pollution monitoring and discharge limits for “forever chemicals” PFAS. (see Statement by the Environmental Working Group:
It is my understanding that the NJ DEP has State statutory authority pursuant to the NJ Water Pollution Control Act to propose and adopt regulations establishing ambient surface water quality standards, groundwater quality standards, and mandatory discharge monitoring, pollution treatment, and numeric effluent limits (technology and water quality based).
I suspect that many other State regulatory agencies also have similar authority.
Relatedly, the Biden EPA issued an “Advance Notice Of Proposed Rulemaking” (ANPR) on March 17, 2021, “Title: Clean Water Act Effluent Limitations Guidelines and Standards for PFAS Manufacturers Under the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category .”
Based on the public comment and regulated industry response to the ANPR, the Biden EPA prepared a draft rule for final White House/OMB review and approval. So, there is an adequate scientific, data, and technical basis to support regulatory action.
EPA identified six facilities (Alabama, North Carolina, West Virginia, New Jersey, Illinois) in the United States that currently manufacture PFAS compounds and have an associated wastewater discharge.
EPA identified limited publicly available information regarding the universe of PFAS formulators. To date, EPA identified ten facilities (in Ohio, Virginia, Michigan, Minnesota, Pennsylvania and New Jersey) that are potential formulators, but requests additional details regarding formulator facilities.
The NJ DEP has done considerable scientific and regulatory work on “forever chemicals”.
The DEP experts could readily assemble the EPA basis and background documents in support of the EPA ANPR and draft rule proposal, and publish that as the basis for a NJ State NJPDES monitoring, treatment and NJPDES discharge permit requirements.
Here are the relevant EPA regulatory documents and dockets:
ANPR – Federal Register Notice
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=2040-AG10
EPA website:
https://www.epa.gov/eg/documents-associated-pfas-advance-notice-proposed-rulemaking
ANPR – FR Proposal
A comprehensive NJ DEP regulatory strategy could be one way to defend against the Trump EPA rollbacks and protect the public health and environment of NJ.
I urge your immediate efforts along these lines and appreciate your timely and favorable reply.
Perhaps we can forgo the work of drafting and DEP response to a petition for rulemaking.
Bill Wolfe