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Rule Petition Was Denied On October 31 And Is Still Not Posted On DEP Website

DEP Does Not Allow Public Comment On Rule Petitions

Legislators Urged To Mandate DEP Allow Public Involvement And Set Firm Timeframes

On October 31, 2023, the Murphy DEP denied my petition for rulemaking to force DEP to regulate over 500 currently unregulated chemicals that DEP’s own science has documented in NJ drinking water. Obviously, this is an important issue and a controversial DEP decision that the public should be aware of and that the press should report on.

Equally obvious is the fact that DEP has strong interests in minimizing public awareness, as this decision belies all the DEP hype and spin about being an aggressive protector of public health and the environment.  We know all about that, given the virtually daily barrage of self promoting press releases issued by DEP, most of which are transcribed by NJ’s depleted and lame media (and applauded by co-opted NJ environmental “leaders”).

So, I guess it is no surprise that DEP has done the absolute legal minimum in terms of informing the public about this horrible decision.

Over 2 months after DEP denied the petition, DEP still has not posted it on the webpage.

DEP is only required by law to publish responses to petitions for rulemaking in the NJ Register. But that is all and that is all DEP has done thus far, the legal minimum. They haven’t even complied with their own informal policy to post responses to petitions on the DEP webpage.

Probably one of the least known of and read publications in NJ is probably one of the most important and impactful to people’s health and environment.

I’m referring to the NJ Register, an esoteric and – aside from a handful of well paid corporate lawyers – little known and read legal publication for the regulatory actions of NJ State government.

In stark contrast, while I don’t have the data, I’d guess that hundreds of thousands of people are aware of, have access to, and frequent the selective information provided on the DEP website.

That’s why DEP posts all their self serving press releases on the website (and social media, where DEP has accounts and DEP Commissioner LaTourette is a prolific poster and self promoter on Twitter and Instagram.)

And that’s why DEP has invested significant resources in designing and promoting the web page and trying to make it accessible to the public. This allows DEP to frame controversial issues in their most favorable light, spin the science, and promote the DEP’s programs.

So, it’s no mystery that DEP would rely on the NJ Register as the publication vehicle for favorable news to the corporate lawyers and the bad news for the public.

On top of the foot dragging, the DEP does not allow public comments on rule petitions, which further undermines public awareness and involvement.

To fix these problems, I wrote the below letter to DEP Commissioner LaTourette and Senators Smith and Greenstein:

Dear Commissioner LaTourette –

Over 2 months after the Department denied my petition for rulemaking to require treatment of over 500 currently unregulated chemicals that DEP’s own research has documented in NJ drinking water supplies, the Department STILL has not posted the denial document on the Department’s website (see:

https://dep.nj.gov/rules/notices-of-rule-petitions/

As you know, the Department denied my petition on October 31, 2023. The denial document later was posted on December 4, 2023 in the NJ Register (see: 55 NJR 2430(a)).

As you also know, the Department does not encourage, provide for, allow, accept, and respond to public comments on petitions for rulemaking. This practice undermines democracy and public participation in regulatory policy and contradicts sound regulatory policy development as well as scientific processes, which require transparent and participatory deliberations.

Accordingly, I write today to urge your immediate attention and action to publish that denial. The public is being denied critically important information and the Department is dodging accountability for the policy decision to deny the petition.

I also write today to urge Senators Smith and Greenstein to introduce legislation to amend the NJ Administrative Procedure Act to mandate that the Department provide for, consider, and respond to public comments on petitions for rulemaking and do so within mandatory timeframes.

Bill Wolfe

Citizen

DEP Proposes A Vague “Weight of Evidence” Method To Gut Current Groundwater Quality Standards

Proposal Lacks Any Justification And Would Invite Industry Challenges To Current Standards

DEP Openly Admits That”Less Stringent” Groundwater Protection Standards Would Result

The Murphy DEP just proposed radical changes to the current groundwater quality standards that would effectively eliminate the current public health basis for those standards. That’s not hyperbole – it’s fact that DEP itself openly admits in the proposal.

Before I get to the complex specifics of that DEP proposal (see letter below), let me set the context to shed light on what’s at stake.

Corporate polluters in NJ have long, vigorously and systematically opposed NJ DEP public health based standards to protect drinking water, air, and the cleanup of toxic waste sites.  These standards are based on an explicit policy with the over-riding and explicit objective to protect public health. These science based standards are derived by well established risk assessment methods and are set to achieve a level of health protection of 1 in a million individual cancer risk.

Industry attacks these standards as too stringent, too costly to comply with, and lacking a “sound science” justification. They have done so for decades.

These standards are designed to protect public health from the chemical poisons polluting industries discharge to our air, water, and land. They cost regulated industries hundreds of millions of dollars to comply with. They protect the air you breathe, the water you drink, and the lands you and your kids live and play on every day. There is a reason that NJ – a former heavily petro-chemical industrial State – has not only the most Superfund toxic waste sites, but among the highest cancer rates in the Country if not the world.

These standards are set based solely on science. The scientific methods under which they are derived are expressly designed to insulate the DEP’s adoption of health based standards from other illegitimate and corrupt factors, such as economics, politics, and the junk science advocated by regulated industries like Big Oil, Big Pharma and the Chemistry Council.

For decades, regulated industries have lobbied the Legislature, the Governor, and the DEP Commissioner to relax the laws and regulations that establish these standards and abandon the current public health and risk assessment based approach to environmental regulation, in favor of more friendly economically oriented and flexible methodologies and standards.

For decades, they have successfully chipped away at the margins and significantly eroded the level of protections afforded by these standards. The numerous incremental relief mechanisms industry has won politically are esoteric and far too complex to discuss in this post: litigation; political pressure; budget cuts; elimination of DEP’s science program; privatization; waivers; exemptions; “mixing zones”; ” classification exception areas”; site specific criteria; alternative models; enforcement grace periods; voluntary compliance; self disclosed immunity; and all sorts of other “regulatory flexibility”.

But now, the Murphy DEP is completely folding to this political pressure and structurally eliminating the public health basis for protecting NJ’s groundwater, which provides a significant fraction of NJ’s drinking water supply.

The letter below to DEP Commissioner LaTourette – a former corporate lawyer who knows exactly what he is doing here  –  provides the outline of that massive surrender (more details to follow):

Dear Commissioner LaTourette:

According to the Basis and Background document for the proposed update of the groundwater quality standards, (emphasis mine): (page 4)

“the Department is proposing to add language under N.J.A.C. 7:9C-1.7(c)3i that will enable it to update the specific ground water quality criterion for a constituent with a corresponding MCL in the SDWA rules, N.J.A.C. 7:10, when the Department determines that the “weight of evidence” approach specified at N.J.A.C. 7:9C-1.7(c)3ii would more appropriately address the risk posed by the constituent than the risk addressed by the health-based level used to establish the MCL.”

https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20240102c-bb.pdf

However, the rule proposal document fails to provide a rationale to justify this radical change in methodology, which would effectively eliminate the current health based approach to groundwater protection and replace it by some novel and vague “weight of evidence” methodology.

The proposal itself acknowledges this gutting on the health based standards: (page 13)

“In determining whether a criterion derived in accordance wi©(c)3ii would more appropriately address the risk posed by the constituent, the Department would review constituent-specific data, applicable USEPA guidance, generally accepted scientific evidence, and/or peer reviewed sources of information. The derived criterion that most appropriately addresses the risk may be more or less stringent than the health-based MCL.”

https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20240102c.pdf

In no case should the Department weaken (i.e. “less stringent”) public health protections.

Worse, the proposal fails to provide specific objectives, criteria, and standards to define what“appropriate” means and to establish boundaries on the “evidence” that may be weighed, the weights assigned to different types and sources of evidence, and how the numeric decision point would be established.

Such a vague method invites abuse, junk science, and economic considerations that would undermine critically important public health protections that have been in place to protect groundwater – a major source of NJ’s drinking water – for over 40 years.

The proposal lacks an articulated justification (i.e. specifically, why is the Department proposing this radical change?).

The proposal would make all current health based and MCL driven GWQS vulnerable to attack by regulated industry (e.g. regulatory petitions to relax current GWQS based on a weight of evidence analysis; or case by case site specific or constituent specific challenges at contaminated sites, et al).

The proposal would also allow the Department – in response to political or economic conditions – to initiate rollbacks of longstanding public health protections.

This is totally unacceptable regulatory and science policy.

I strongly urge that the proposal be withdrawn or should the Department proceed to adoption, that it be subject to Legislative veto.

Bill Wolfe

Another Example Of The Contradiction Between Murphy DEP Rhetoric And Policy Reality

Th NJ Water Supply Authority (NJWSA) just proposed to retain current water user rates, a move that conflicts with Murphy DEP warnings about the need to make major new investments in drinking water infrastructure to respond to longstanding failure to invest and new challenges posed by climate change and new advanced treatment to remove hundreds of unregulated toxic chemicals.

The NJWSA proposal is scheduled to be published in the New Jersey Register dated January 2, 2024.  A copy of the proposal is available from: the Department’s website https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20240102a.pdf, the NJWSA website (http://www.njwsa.org), and LexisNexis free public access to the New Jersey Register, (www.lexisnexis.com/njoal).

We constantly read of multi-billion dollar deficits in NJ’s water infrastructure.

These huge deficits are projected to grow significantly due to the need for additional investments to respond to climate change and advanced treatment to remove unregulated toxic chemicals and toxic byproducts of harmful algae blooms.

The Joint Legislative Task Force On Drinking Water Infrastructure Report (2018) issued a stern warning:

Most recently, the Murphy DEP Commissioner echoed those warnings (but proposed no response):

“New Jersey’s water infrastructure needs are great,” Commissioner of Environmental Protection Shawn M. LaTourette said. “The Murphy administration is committed to investing in projects that will create jobs while helping to protect the public from health threats such as lead and PFAS in drinking water, flooding caused by outdated stormwater infrastructure, and degraded rivers and streams caused by combined sewer overflows.

The latest American Society of Civil Engineers’ infrastructure Report Card gave NJ a grade of C- – and highlighted the continuing failure to make necessary investments:

Drinking water needs in New Jersey are an estimated $8.6 billion … Delaying these investments only escalates the cost and risks of an aging infrastructure system, an option that the country, New Jersey, and families can no longer afford.

Long before talking about infrastructure investment was cool (and got your organization Foundation and DEP funding), we proposed “A public investment strategy and regulatory agenda” (2005):

Need for Public Investment – Financing environmental infrastructure deficits

The first priority of the Clean Water Council should be a strong recommendation to the next Administration to get the environmental infrastructure deficit issue on the political and policy radar screens. The Council should focus on the fact that environmental infrastructure deficits are a serious and long ignored problem that threaten NJ’s economic future, quality of life, public health, and ecological integrity. The Council needs to emphasize that water resource and environmental infrastructure expenditures are investments. The Council should recommend the absolute need to establish creative new funding sources to finance this critical deficit.

We later blasted the Christie DEP for failure to respond to these deficits, see:

• Christie Administration Dodges Water Infrastructure Deficits, Blames Regulatory Oversight

Yet despite these huge infrastructure deficits, the NJ Water Supply Authority just proposed to retain the current water users rates:

This [proposal] represents no change as compared to FY 24.  The average annual impact per household will therefore be $0.00 based on 400 gallons daily usage per household.

Are we to believe that the entire NJ Water Supply Authority system has no infrastructure investment deficits?

Did everyone forget this massive failure?

• Monmouth Water Emergency Illustrates Climate Change Risks and Reveals Deficits in NJ’s Adaptation Planning

A photo from Monmouth County of the affected pipe (source: Star Ledger)

Here is the NJWS Raritan basin assessment and here is the Manasquan Reservoir assessment.

The words “deficit” and “climate” and “harmful algae blooms” or “unregulated chemicals” or “advanced treatment” are not mentioned in either assessment of financial needs, which seems to validate the Legislative Taskforce’s negative findings:

New Jersey currently lacks a comprehensive system or report for understanding its infrastructure investment needs.

It looks like the NJWSA didn’t get Gov. Murphy’s memo or his DEP’s press releases!

The NJ Water Supply Authority was created by the Legislature in 1981 as a quasi independent public utility, but they are led by and effectively accountable to the DEP and Governor:

The members of the Authority consist of the Commissioner of the New Jersey Department of Environmental Protection (ex officio member) and six public members appointed by the Governor upon the advice and consent of the New Jersey Senate.

The NJWSA submits an annual Report to the Governor and the Legislature. Their most recent Report available is for 2022. It too fails to mention climate or infrastructure deficits, but does note that harmful algae bloom are problems.

The NJWSA’s failure to heed the Murphy DEP’s warnings about infrastructure deficits – and the Gov.’s failure to hold NJWSA accountable – are clear indications that Gov. Murphy and his DEP are not serious and lack the political will to make these crucial infrastructure investments.

Period.

[End Note: Continued reliance on one shot federal infrastructure funding is no sustainable solution – don’t be fooled by that spin.]