Steps for New Jersey Municipalities Facing 1,4-Dioxane Contamination

Among the many contaminants of concern for New Jersey municipalities and drinking water utilities, 1,4-dioxane has garnered heightened attention in recent years. Decades of industrial operations throughout the region have allowed the chemical to infiltrate the environment through industrial wastewater discharges, improper disposal, and accidental spills, resulting in surface water and groundwater contamination. Recent research has associated 1,4-dioxane exposure with an increased risk of cancer and other negative health effects such as kidney and liver damage. In response, New Jersey has initiated the process to develop a Maximum Contaminant Level (MCL) for 1,4-dioxane in drinking water, which is expected to be set at 0.33 parts per billion (ppb).

For municipalities and utilities that have detected 1,4-dioxane in drinking water sources, the time to act is now. Once New Jersey's 1,4-dioxane MCL becomes effective, public water providers with detections of this contaminant above the regulated levels will be forced to shoulder the burden of managing cleanup. Since traditional water treatment methods cannot remove 1,4-dioxane, affected water providers often need expensive infrastructure improvements to achieve compliance. Waiting too long to implement a treatment plan may also be costly, as NJDEP may subject municipalities to financial penalties if they have detections above the MCL when it takes effect.  

Several New Jersey municipalities have already taken initial steps to remove 1,4-dioxane from drinking water to prepare for the expected MCL, but the treatment systems needed can cost millions of dollars. This financial burden should not fall upon municipalities and local residents who played no role in causing 1,4-dioxane contamination. Instead, municipalities can seek to shift 1,4-dioxane treatment costs to the manufacturers responsible for pollution by filing lawsuits against these companies.

In this article, we will share the steps some municipal leaders are already taking to manage 1,4-dioxane in their drinking water supplies. By following these steps to explore water treatment solutions and evaluate funding options, municipalities can mitigate the impact of 1,4-dioxane contamination and avoid compliance concerns when regulations are finalized.

The Evolving Regulatory Landscape for 1,4-Dioxane

In response to research showing that 1,4-dioxane contamination presents a significant risk to public health, state and federal regulators have taken steps to limit its concentration in drinking water. From a regulatory perspective, the contaminant appears to be following the same process as PFAS in recent years. What began as increased awareness and research led to EPA assessment and is now culminating in proposed regulatory action.

EPA Guidelines and Anticipated Federal Rulemaking

The U.S. EPA has made strides toward regulation of 1,4-dioxane recently. The agency has published a Health Reference Level of 0.35 ppb, based on a one in a million increase in cancer risk from lifetime exposure. Health Reference Levels are not legally enforceable, but they can inform future rulemaking.

Additionally, from 2013 to 2015, all large public water providers in the United States were required to test for 1,4-dioxane to comply with the Third Unregulated Contaminants Monitoring Rule (UCMR3). A subset of small water systems were also required to test under this rule to better represent the state of drinking water quality nationwide. The data revealed detections across the country, but the results were even more concerning for New Jersey water providers. 1,4-dioxane was detected in 24% of the samples taken from New Jersey drinking water systems, compared to 11.4% nationwide. Water managers within the state are not to blame for these detections. In fact, they will be instrumental in removing these contaminants to protect New Jersey residents' health.

The U.S. EPA’s release of the 1,4-dioxane risk evaluation mentioned above was another strong indicator that federal drinking water regulations may be on the horizon. Because EPA is tasked with regulating contaminants that present an unreasonable threat to public health, its findings on 1,4-dioxane may prompt the agency to establish enforceable standards in the years to come.

New Jersey Water Quality Regulations

While the U.S. EPA's regulatory process continues, the State of New Jersey has also begun developing its own regulations to control 1,4-dioxane contamination. In 2021, the New Jersey Department of Environmental Protection (NJDEP) accepted the New Jersey Drinking Water Quality Institute's (DWQI) recommendation to set an MCL of 0.33 ppb. The regulatory process is still underway, and a final state-level MCL is expected to be released soon. Knowing that 1,4-dioxane drinking water standards will likely be enacted in the coming years, New Jersey water managers can begin taking steps now to ensure compliance.

1,4-Dioxane Drinking Water Detections in New Jersey

Several New Jersey water providers are already leading the way in addressing 1,4-dioxane detections to prepare for the impending state-level MCL. In one prominent example, New Jersey American Water sought to find the source of contamination in the Delaware River in 2020. The large water system detected concentrations over 100 times above New Jersey's expected MCL through sampling at that time. Because the river provides drinking water to over 13 million people along the East Coast, water official Matt Csik was determined to find and eliminate the contaminant source. Through an extensive investigation, Csik tracked the source down to a plastics and polymer manufacturer that sent its wastewater to a treatment plant on the Lehigh River, which flows into the Delaware River. The wastewater treatment plant immediately stopped accepting wastewater from the manufacturer, helping to reduce the 1,4-dioxane concentration in the Delaware River and improving drinking water quality for millions. This is a great example of the role source control can play in an effective management strategy.

However, source control alone is not always sufficient to comply with anticipated regulations. To lower 1,4-dioxane levels further, New Jersey American Water invested $2.5 million in its Delaware River Regional Water Treatment Plant in 2022. The upgrades included the installation of advanced oxidation processes (AOPs) to treat drinking water for 1,4-dioxane, helping the water system prepare for compliance when New Jersey’s MCL is finalized.

What to Do if Your Municipality Detects 1,4-Dioxane Contamination

New Jersey municipalities and utilities that have detected 1,4-dioxane in their water sources, or suspect that the contaminant may be present, do not benefit from delaying their response. The full process of mitigating 1,4-dioxane contamination can take years, from initial water quality testing to planning, evaluating treatment options or alternative water sources, and sourcing funding for the project. Therefore, water providers that choose to wait for the state MCL to be finalized before taking action may have difficulty achieving compliance before the effective date. For municipalities that cannot reduce 1,4-dioxane levels in time, NJDEP’s Bureau of Safe Drinking Water may initiate legal actions that could include administrative orders with financial penalties.

The first step in responding to contamination is to conduct testing to determine the extent of 1,4-dioxane contamination if water providers have not yet done so. Many New Jersey municipalities have already tested for 1,4-dioxane and are aware of their concentration levels. However, more in-depth monitoring may be helpful to better understand the extent of contamination as they begin planning for treatment.

Best Practices for Water Quality Testing and Monitoring

While each municipality’s unique needs and budget will influence its testing schedules, there are best practices that may be helpful for those with 1,4-dioxane detections. NJDEP recommends the following protocol for drinking water providers that have detected this contaminant:

• Conduct quarterly monitoring of both finished water at treatment plant points of entry (POE) and raw water from wells and surface water intakes.

• Use a lab certified by NJDEP’s Office of Quality Assurance to analyze water samples for 1,4-dioxane using EPA Method 522, with a Minimum Reporting Level (MRL) of 0.1 μg/L.  

• Share sample results with NJDEP through the E2 system to help track the overall impact of 1,4-dioxane in New Jersey.

• Consider implementing monitoring protocols at other treatment plants or sources with lower concentrations to help detect plumes before they spread further.

Once municipalities have a thorough understanding of the extent, location, and concentration of 1,4-dioxane contamination, they can begin crafting a management plan to ensure compliance with the anticipated state MCL.

Responding to 1,4-Dioxane Contamination: Next Steps for Municipalities

New Jersey municipalities need a clear plan for how to remove 1,4-dioxane from drinking water and maintain regulatory compliance. This demonstrates a commitment to protecting local residents' health and maintaining affordability. In today's climate of heightened public awareness and demand for immediate action, transparent communication also helps build trust in local government. A comprehensive strategy to address 1,4-dioxane contamination may include the following components:

• Source Control: It may not always be feasible or even necessary to narrow 1,4-dioxane contamination down to a single point source. However, if nearby manufacturers or other sources can be identified, it may be possible to limit or redirect their discharges.

• Public Awareness: Local residents may already be concerned about contaminants and their associated cleanup costs due to sensationalized media coverage. Municipalities can assuage these fears by showing ratepayers how they plan to maintain compliance with drinking water standards and minimize the financial impact of their mitigation solutions.

• Procurement of Alternative Water Sources: Some municipalities may opt to abandon a contaminated water source, replacing it with a new source. This strategy may involve drilling new wells, building new facilities, or purchasing from another community.

• Drinking Water Treatment: Since traditional water treatment processes cannot successfully filter 1,4-dioxane out of drinking water, new treatment technologies must be implemented to bring water from contaminated sources into compliance. While research into effective treatment methods is ongoing, advanced oxidation processes (AOPs) are currently the leading 1,4-dioxane water treatment technology.

Even under ideal conditions, the steps above will result in increased costs for municipalities. Although residents often demand quick action to remove contaminants from their drinking water, few are eager to pay increased water rates or higher taxes to cover the cost. Such expenses could even negatively affect public approval of local leadership. Therefore, funding solutions are a crucial element of any 1,4-dioxane response plan.

Funding Options to Protect Municipal Budgets

New Jersey water providers perform the essential service of providing safe drinking water to local residents, often on very limited budgets. The cost of 1,4-dioxane mitigation can present a serious financial threat to municipalities, especially smaller ones that may not have as many taxpayers to spread out the cost. This can result in significant rate increases for individual households. To offset the high cost of 1,4-dioxane cleanup, municipalities can explore all of the funding options available to them to find the solutions that best fit their unique needs.

Cost Recovery and Litigation Strategies for Public Water Providers

New Jersey municipalities and water providers did not produce or profit from 1,4-dioxane, so they should not be responsible for cleanup. One strategy some water providers are pursuing is to seek to recover the costs of 1,4-dioxane treatment by holding the manufacturers accountable. Since the majority of 1,4-dioxane in New Jersey water is the result of decades of industrial discharges and improper waste handling, the large companies that polluted local water resources should have to pay their fair share. Municipalities can seek to shift their expenses to these manufacturers through the legal process, building financial resilience and protecting their ratepayers from increased costs.

Cost recovery litigation has emerged as a viable funding strategy for entities affected by 1,4-dioxane contamination within New Jersey. In fact, Attorney General Matthew J. Platkin, NJDEP, and the Division of Consumer Affairs filed a lawsuit in 2023 against the 1,4-dioxane manufacturers the Dow Chemical Company (Dow), Ferro Corporation (Ferro), and Vulcan Materials Company (Vulcan), as well as other unnamed companies. The suit seeks to hold these companies accountable for natural resource damages caused by their manufacturing practices. While this is a great example of government leaders seeking to hold polluters accountable for contamination, it is not a replacement for claims filed by individual municipalities and water systems, as there is no guarantee that any funds potentially awarded through this lawsuit will be available to cover water providers’ expenses. New Jersey water providers with 1,4-dioxane concerns are still eligible to file separate lawsuits seeking recovery for their own contamination cleanup costs and should consider all available legal options as they choose their next steps.

Some municipal decision-makers may wonder whether they should wait until New Jersey's 1,4-dioxane MCL is finalized before planning treatment solutions and seeking funding, but those who act now will avoid missing out on potential cost recovery opportunities. Since the legal process can sometimes take several years from filing a lawsuit to the awarding of funds, municipalities that file now may have a better chance of receiving funding by the time the MCL goes into effect. Furthermore, by selecting a law firm that works on a contingency basis, fees will only be collected as a percentage of recovery. This means there is no financial risk to pursuing litigation, as there is no cost unless a favorable outcome is achieved for the client.

Let's Talk About Your 1,4-Dioxane Cost Recovery Options

For New Jersey municipalities affected by 1,4-dioxane contamination, the cost of treatment and mitigation can be daunting. However, those that start exploring solutions now will have time to begin the cost recovery process before New Jersey's anticipated drinking water MCL takes effect. Through the legal process, water providers can seek to shift the financial burden of 1,4-dioxane cleanup to the manufacturers that profited from the use of these chemicals and allowed them to pollute New Jersey's waters.

SL Environmental Law Group has over 20 years of experience helping water providers recover the costs of managing contamination from manufacturers. Our attorneys are available to discuss your municipality's 1,4-dioxane concerns and the funding options available to you. Schedule a free, no-obligation consultation to start planning your municipality's 1,4-dioxane cost recovery solutions.