She blinded me with science – and hit me with technology. ~~~ Thomas Dolby (listen)
Yesterday, the Senate Environment Committee held a hearing on the DEP’s proposed rollbacks to the Highlands Septic Density Standards (see set up post).
Chairman Smith seems to have a strategy, which I find an abdication of a defense of the Highlands Act.
Smith chose to limit testimony to what he called “science” and allowed only “invited guests” to testify. USGS testimony stayed within this narrow limitation, but NJ DEP, a Rutgers professor, and expert consultants ranged widely.
The Rutgers professor appeared to be oblivious to the goals and standards of the Highlands Act, the objectives and standards for the Preservation Area, and the legal and technical bases for the septic density standards. (He actually suggested NJ look at Rhode Island, where they have advanced septic systems that allow development on tiny lots – and along the coast! Was it sarcastic dark humor?) It was embarrassing. At that point, Ray Cantor of DEP – certainly no tree hugger – had to do damage control to explain the land use and ecological objectives of the Highlands Act (considering secondary and cumulative impacts of development) in order to limit dangerous testimony about site specific alternatives to DEP Highlands and recommended revisions to DEP’s “Chapter 199″ septic standards to consider advanced treatment systems for septics (a la Rhode Island). It is pretty amazing when Ray Cantor is championing Highlands protections to derail crazy engineering recommendations of a Rutgers professor. Maybe the Rutgers prof. should talk to Professor Lathrop and folks at CRSSA and ask the Pinelands Commission about that – their alternative design septic system policy has a high failure rate**.
However, the public record for the hearing will remain open for 2 weeks for written comments.
Quite a bit of the hearing focused on whether DEP and USGS’s use of data from the Private Well Testing Act (PWTA) was scientifically sound and appropriate.
PWTA data were available when NJ DEP derived and originally adopted the current septic density standards. However, due to bias, flaws, and limitations, the NJ DEP chose not use PWTA data for regulatory purposes and refused to incorporate the PWTA data into the dataset used to derive the current septic density standards.
For DEP now to use USGS to bring those contaminated PWTA data into the regulatory basis for weakening current standards is totally unacceptable scientific practice and it conflicts with the policies, standards and authorized regulatory basis of the Highlands Act.
More about the hearing in future posts – I wanted to get this letter to Smith ASAP, given seriously misleading testimony by NJ DEP and USGS.
Dear Chairman Smith:
Per your request during yesterday’s Senate Environment Committee’s hearing, I would like to submit the following documents for your information and incorporation in the record regarding the Legislature’s pending review of the NJ DEP’s proposed revisions to the Highlands “septic density standards” mandated by the Highlands Act.
1. USGS Data Quality Act complaint
As you may know, on May 18, 2016, Public Employees for Environmental Responsibility (PEER) filed a complaint with the USGS pursuant to the federal Data Quality Act regarding the USGS’s Highlands nitrate study.
The PEER complaint requests that the USGS withdraw the study, which forms the exclusive scientific basis of the NJ DEP rule proposal. The USGS review of this complaint is still pending. A decision is over-due under USGS policy, which provides a 90 day period to review Data Quality Act complaints.
The PEER complaint, which I wrote, goes into great detail regarding significant bias (geographical, statistical, and scientific), flaws, and limitations in the USGS study.
In addition to those scientific and technical flaws, the USGS methodology is in blatant conflict with the Legislative standards established by the Highlands Act that govern regulatory derivation of the DEP’s “septic density standards”. Most basically, the septic density standards apply only in the Preservation Area. In contrast, USGS relied on data from the Planning Area.
The Legislature, in the Highlands Act, established a non-degradation water quality policy as well as specified with precision – and thereby limited – the factors DEP could consider in promulgating “septic density standards”.
NJ DEP septic density standards are authorized by the Highlands Act in order to prevent the degradation of water quality. The applicable provision provides:
“… a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution…”18 (Emphasis added)
The current septic density standards DEP adopted were derived based on an ambient groundwater nitrate concentration of 0.21 mg/L for forested lands in the Preservation Area. This concentration was found to be the “natural condition” or natural background concentration.
In contrast, the USGS study and NJ DEP proposed revisions are based explicitly on groundwater degraded by anthropogenic loadings of nitrogen from septics and agriculture practices. This methodology conflicts with the legislative standard in the Highlands Act to prevent degradation of surface and groundwater.
The USGS attempted to derive the median value of nitrate in groundwater in the Preservation Area, based on samples taken outside the Preservation Area. That is simply not authorized by and conflicts with the Highlands Act.
I would like to submit the PEER complaint for the record, see:
http://www.peer.org/assets/docs/nj/5_18_16_Highlands-USGS_DQA_complaint.pdf
2. NJ DEP Private Well Testing Act Reports
There were serious substantive omissions in the testimony by NJ DEP and USGS regarding the Private Well Testing Act (PWTA) data.
These omissions reflect bias and may lead to misleading interpretations of the science by Legislators.
Accordingly, I would like to submit a Report by NJ DEP’s Division of Science and Research and two other official program Reports on the PWTA data.
The PEER USGS complaint goes into some detail, based on NJ DEP’s now PWTA Reports, about why that data is flawed, limited, and inappropriate for purposes of deriving the “septic density standards”.
The NJDEP prepared three distinct Reports on the PWTA data, all of which documented serious limitations in PWTA data.
Specifically, DEP issued a preliminary PWTA Report in 2004, see especially page 6 for “limitations of the data”:
http://www.nj.gov/dep/watersupply/pwta/pdf/pwta_report.pdf
NJ DEP issued a more detailed PWTA Report in July 2008The DEP’s 2008 Private Well Testing Act Report warns about lack of QA/QC and other limitations and flaws in the PWTA data (see page 5, “Limitations of the Data”)
http://www.nj.gov/dep/watersupply/pwta/pdf/pwta_report_final.pdf
Analysis and Data Reporting – The PWTA Program testing data are submitted electronically and are automatically entered into the database without any quality control or quality assurance reviews. It is assumed that the certified laboratory properly met all required protocols and the data are accurate. The PWTA Program relies on the reporting laboratory to catch and correct any data entry errors.
In addition to the NJ DEP’s programmatic PWTA Reports released in 2004 and 2008, an April 2009 Report by the DEP’s Division of Science and Research, titled: The New Jersey Private Well Testing Act: An Overview (April 2009) goes into great detail about flaws in PWTA data. The DEP Report found: (boldface emphases are mine):
http://www.state.nj.us/dep/dsr/research/pwta-overview.pdf
Data limitations
The quality of NJDEP’s PWTA database is adversely affected to an unknown extent by several factors. There is no agency responsible for verifying that the data from all real estate transactions (sales and leases) subject to the PWTA are reported to the NJDEP. Therefore, some data is likely missing. Some data that were initially rejected by the E2/COMPASS quality control system were not resubmitted, despite NJDEP efforts to have these data resubmitted. One laboratory failed to submit data over a 3-year period, although this is believed to be an isolated case.
There are errors in the reported data as well. The PWTA relies on the sampling and testing laboratories for proper conduct of sampling, testing, and data accuracy. As previously stated, all laboratories performing PWTA analysis must be certified. That is, they are required to successfully complete periodic performance evaluations. Certification presumably reduces sampling and analysis errors. Nevertheless, there is no ongoing quality control of the data, either following sample collection, during or after testing, or in reporting results to the client or during electronic entry to the NJDEP database. It is not known how many errors exist in the non-location aspects of the data. As one example, it is suspected that, contrary to PWTA regulations, collection of lead samples from unflushed water tanks or spigots is the primary reason why many elevated lead results were reported. NJDEP personnel periodically evaluate the data and, through contact with the submitting laboratories, correct data submissions. This process also reduces the amount of errors.
There is no GPS certification program for samplers who collect GPS coordinate information. As a result, there were numerous GPS errors, especially during the first year of sample collection. For example, many GPS coordinates were not located in the correct municipality let alone the correct property. Because much of the data analysis relied on accurate well location information, the NJDEP spent approximately one man-year (full time equivalent) correcting well location errors, including address, municipality, county, block and lot and GPS coordinate information for wells sampled from PWTA inception (September 2002) through April 5, 2007. This was done using an electronic, subscription-based, tax parcel website, eTaxmaps.com, to correct block and lot as well as address information errors. Once those errors were corrected, the data for each municipality was organized by block and lot to look for GPS errors. GPS errors were corrected using ArcMap® 9.2 software (ESRI Inc., Redlands, CA) and the following data layers: county and municipal boundaries, county tax parcel boundaries (available for 17 of the 21 counties), NJ roads (from Tele Atlas North America, Inc., v 9.1, April, 2007), and 2002 high-resolution infrared orthophotography (1 foot Ground Resolution Distance). For repeat samples of the same well, identical GPS coordinates were offset 1 foot to distinguish these samples on high resolution maps and to enable certain geospatial statistical analyses. A copy of the database with the correct well location information was created in Microsoft Access®. Because of the extensive location errors, the NJDEP subsequently provided GPS training to all PWTA-certified laboratories.
The PWTA requires just one sample and test during a real estate transaction. No confirmatory sampling and testing that might verify the accuracy of the results from the initial sample is required. However, as of April 5, 2007, 9 % of the tested wells have been tested more than once due to multiple real estate transactions and other reasons.
Wells may be contaminated with pathogens or chemicals that were not among the tested parameters. The list of tested parameters was selected based on known or potential broad-based contamination concerns in NJ, but the list is by no means comprehensive in terms of contaminants that have been identified in ground water in NJ or elsewhere. However, the presence of some of the parameters in excess of the standard may be considered as an indicator of the possible presence of other non-tested contaminants.
For example, if fecal coliform or E. coli are detected, the well is considered to be contaminated with fecal wastes from either humans or animals. Such wastes may include one or more of a variety of potentially pathogenic microorganisms such as Salmonella, Shigella, enteric viruses, Giardia or Cryptosporidium. The presence of VOCs may indicate a higher likelihood that some other man-made chemical contaminants may be present.
Information on well depth was not collected in the PWTA database in most cases. This information would have been helpful to more accurately assess the impact of specific geologic formations on ground water quality. Well construction information, specifically permit application information and, in some cases, well drilling record information, is available for many of the wells in NJDEP’s other electronic databases (NJEMS and Hiview). These databases include well identification numbers and well depth information, but it was not possible to transfer this information into the PWTA database (over 50,000 wells) on a well-by-well basis.
Having the well drilling record information or at least the permit application information for all wells rather than for just 5 % in the PWTA database would have assisted data analysis in many cases where there were multiple data records for the same address, block and lot. In some of these cases, it was not certain whether a single well was tested more than once, or there was more than one well at that location, with each well tested just once.
The PWTA addresses NJ ground water quality but not quantity concerns. However, statewide water quantity concerns are addressed through other NJDEP Division of Water Supply programs and through implementation of the NJ Statewide Water Supply Master Plan.
In addition to the reasons set forth in the PEER USGS complaint, the PWTA data are inherently biased, flawed, and limited, as well as an ultra vires basis and inappropriate for use in deriving Highlands Preservation Area septic density standards.
The PWTA data were available when NJ DEP derived and adopted the current septic density standards. However, due to bias, flaws, and limitations, the NJ DEP chose not to incorporate the PWTA data into the dataset used to derive the current septic density standards.
For DEP now to use USGS to bring those contaminated PWTA data into the regulatory basis for weakening current standards is totally unacceptable scientific practice and it conflicts with the policies, standards and authorized regulatory basis of the Highlands Act.
I appreciate your consideration of this information and incorporation in the hearing record.
I will be submitting additional information and would be glad to respond to any questions.
Respectfully,
** revised from first draft – the program was not “withdrawn”
