NEWARK, NJ - The question of whether Newark will be compelled to expand its emergency bottled water distribution to residents of the other main service area of the city awaits a federal judge's decision after two days of arguments that wrapped up Friday.
U.S. District Court Judge Esther Salas listened as attorneys for the Natural Resources Defense Council (NRDC), an environmental advocacy group, and the City of Newark made their closing arguments regarding the expansion of the emergency distribution of bottled water in the city.
The question is whether the distribution should go beyond the residents of the western half of Newark, who are serviced by the Pequannock water treatment plant, to include residents of the eastern half of Newark, who are serviced by the Wanaque water treatment plan.
The distribution plan is specifically targeted to aid pregnant and nursing women, as well as children under 6 years of age, groups who are especially vulnerable to the deleterious health effects of lead contamination.
Claire Woods, an attorney for the NRDC, maintained that the harm of not expanding the distribution of bottled water to the Wanaque water service area far outweighs any fiscal cost.
"A massive amount of damage can occur in just three months to a child's brain," Woods said.
Yet Salas was not convinced that the case had been made that irreparable harm will occur if the bottled water doesn't go to the Wanaque area.
"I don't know what evidence you have that Wanaque [service area] residents are truly in danger," Salas said.
Eric Klein, an attorney representing the City of Newark, argued that ordering the city to widen its distribution of bottled water would worsen the overall problem.
"Delivering bottled water by court order destroyed public trust in the water in Flint," said Klein, alluding to the infamous lead water contamination crisis that began five years ago in the Michigan city, which has been referenced by both sides. "Not using the plumbing in Newark will not allow the chemical lead corrosion control treatment to work."
Salas, however, pointed to Thursday's testimony by a city official that the distribution of bottled water to pregnant and nursing women from the Wanaque water service area had already begun on a case-by-case basis.
"If it’s being done already for pregnant and nursing women in the Pequannock area, why would it not be acceptable to distribute to pregnant and nursing women in the Wanaque area for a limited period?" Salas said. "There seems to be a haphazard approach in dealing with this awful situation. We need to have consistency."
Salas's looming decision will be the latest in a series of dramatic events in Newark in the last several days regarding lead exposure in the water.
Newark Mayor Ras Baraka admitted on Saturday that some water filters provided to Newark residents by the city to reduce lead levels in tap water are not working as expected in at least two homes.
The U.S. Environmental Protection Agency urged Newark residents the same day to use bottled water for drinking and cooking until the results of the filter testing are fully understood, additional sampling is performed, and a reliable solution can be implemented.
On Thursday, EPA Administrator Andrew Wheeler met with state Environmental Commissioner Catherine McCabe to discuss the drinking water issues in Newark, a meeting the EPA characterized as "very productive" in a statement released Friday.
EPA’s Office of Research and Development (ORD), Office of Water, and Regions 2 and 5 continue to meet with Newark and the state on a daily basis to assess and provide advice on Newark’s drinking water lead issue, the EPA said.
The EPA scientists have helped Newark and the state develop a sampling plan in the Pequannock service area. The city began the first round of sampling according to the plan starting Friday, the EPA said in the statement.
The hearings in U.S. District Court in Newark have been an extension of a lawsuit filed in July 2018 by the NRDC and the Newark Education Workers Caucus (NEW Caucus) against the City of Newark. The two groups sued Newark and New Jersey state officials charging that their violations of federal law have resulted in dangerous lead levels in Newark’s drinking water.
The lawsuit would force city and state officials to address repeated, systemic failures to follow federal rules designed to protect the public from dangerous lead exposure. The NRDC claims the city failed to act swiftly after its corrosion control system was found to be failing in 2017, then understated the severity of the problem when it notified residents.
An economic policy expert testified on Thursday that providing two cases of water per week for three months to qualifying households, which includes those with a pregnant woman or young children or both, would cost approximately $300,000.
Erik Olson of the NRDC referred to a number close to that amount after the hearing when he made a cost-benefit analysis of a potential decision that would force the city to distribute bottled water to the Wanaque water service area.
"The city paid $225,000 to a PR firm last December [for messaging regarding the lead water crisis]," Olson said, referring to a six-month contract the city signed with Mercury Public Affairs, which has offices in Trenton and Westfield.
"Frankly, we're wondering if maybe the money could've been better spent," Olson said. "The top priority really needs to be all of the citizens of Newark's health."
Olson also expressed concerns that city and state officials apparently could not produce early documentation of Newark's corrosion control system.
"We have been trying to find out for the better part of the year whether the state ever did its job and ordered the city to use a specific kind of corrosion control. Today, the state DEP stood in front of the court and said they don't know whether they have a document that says that they ordered the city to do corrosion control," Olson said, referring to questions that Salas asked Deputy Attorney General Kristen Heinzerling, who appeared on behalf of the state Department of Environmental Protection.
"The city is trying to point its finger at the state and say that the state didn't tell us what to do, and the state is saying 'Well, we think we probably did, but we don't have any documents to show that we did," Olson said. "It's obviously a failure by the state and by the city to comply with the law."
Salas offered no specific timeline as to when she will announce her decision. But as she entered into the weekend, she noted that while regulatory agencies such as the state DEP and the federal EPA have their roles to play in Newark's lead water crisis, so could she.
"There clearly is not a written policy in place on what's happening," Salas said. "Maybe the court should serve as a backstop, when and if it becomes necessary."