As The Clean Water Act Celebrates It’s 50th Birthday, The Murphy DEP Is Using The Same Cost Arguments Richard Nixon Used To Veto The Act
Murphy DEP In Fine Company, Indeed!
DEP says proposal “will provide significant economic relief to permittees”
As the Clean Water Act celebrates it’s 50th anniversary, the Murphy DEP recently proposed major amendments to NJ’s Surface Water Quality Standards (SWQS).
The SWQS are the heart of the Clean Water Act. They establish legally binding limits that polluters must meet to protect the “physical, chemical, and biological” health of the nation’s waters.
The Murphy DEP proposal quietly includes the most significant rollback of those NJ water quality standards since the Whitman DEP’s failed “Mega Rule”. That proposal triggered strong opposition by environmental groups and generated significant media attention and bad press that forced its withdrawal.
The loophole is buried deep in the weeds of the DEP proposal. It is known as a “variance”.
I wrote about that back in August when the rule was proposed, see:
The DEP makes it very clear that a variance is designed to avoid the costs of compliance with water quality standards:
A permittee requesting a WQS variance must justify and demonstrate to the satisfaction of the Department that the SWQS …. would result in substantial and widespread economic and social impact, as proposed at N.J.A.C. 7:9B-1.16(b)4. (proposal @ p. 27)
Simply put, a “variance” allows polluters to avoid compliance with a water quality standard if the cost is too high. DEP makes that clear throughout the proposal: (interestingly the word “cost” is mentioned 64 times in the proposal):.
The Department anticipates that the WQS variance will be useful to address implementation challenges for situations when the water quality criterion for a substance or the designated use of a waterbody/waterbody segment(s) cannot be attained due to the lack of feasible treatment technologies, lack of analytical methods to measure the substance to the criterion thresholds, or the potential to cause widespread social and economic impact, if implemented. (proposal @ p.32)
[Note the word “or” preceding economic impacts. Only one of those conditions need be present to qualify for a variance. That means even if there are feasible treatment technology and analytical methods available. Cost alone can justify a variance.]
The new requirements to incorporate WQS variance provisions will allow the Department to adopt temporary in-stream criteria or effluent conditions that will provide significant economic relief to permittees facing currently unattainable SWQS, (@page 51)
Cost savings could occur for permittees that apply for WQS variances, as a variance could be a means to addressing contested permit limits instead of accruing penalty violations. When the SWQS cannot be met … current regulations offer no options for the permittee other than incurring potential permit violations or enforcement actions, while the water quality of receiving waters continues to degrade. This creates considerable operational and financial uncertainty with respect to the cost of compliance and need for treatment upgrades. Examples of a regulatory compliance issue that creates an uncertainty for permittees include standards for certain pollutants, such as arsenic, that may be lower than natural ambient conditions, or lower than what existing technologies can feasibly measure or treat.
All this shortsighted and misguided emphasis on allowing the costs of compliance to undermine protection of clean water harkens back to exactly the same argument Richard Nixon used to veto the Clean Water Act passed by Congress – thankfully, Congress over-rode Nixon’s veto:
Veto of the Federal Water Pollution Control Act Amendments of 1972
I am also concerned, however, that we attack pollution in a way that does not ignore other very real threats to the quality of life, such as spiraling prices and increasingly onerous taxes. Legislation which would continue our efforts to raise water quality, but which would do so through extreme and needless overspending, does not serve the public interest. There is a much better way to get this job done.
For this reason, I am compelled to withhold my approval from S. 2770, the Federal Water Pollution Control Act Amendments of 1972–a bill whose laudable intent is outweighed by its unconscionable $24 billion price tag.
The Murphy DEP “variance” loophole comes as the DEP and the DRBC are seeking to reduce discharge of ammonia and nitrogen from sewage treatment plants.
The DEP variance loophole is perfectly timed to let polluters off the hook for upgrading pollution control technology for those new ammonia/nitrogen limits, as well as new limits coming down the pike for unregulated toxic chemicals and new limits on “forever chemicals” PFNA’s.
It also will likely be used to delay and forgo compliance with DEP’s toothless stormwater CSO permits.
[End Note: And while we’re focused on history, the DEP proposal is based on 1995 US EPA Guidance (27 years old!!!)
In contrast, the recent DRBC ammonia study is based on 2022 EPA Guidance:
Another heckofajob in leadership by Murphy DEP former corporate lawyer Shawn LaTourette.