The New Jersey Department of Environmental Protection (“NJDEP”) continues to take action on emerging contaminants, and, as of September 4th, adopted a maximum contaminant level (“MCL”) for perflourononanoic acid (“PFNA”) in drinking water. PFNA is not regulated at the federal level, and New Jersey is the first state to set an enforceable standard for PFNA in drinking water. The new MCL is 0.013 micrograms per liter, that is, 13 parts per trillion, an extraordinarily low level. MCLs for other substances are measured in the parts per billion, so, for example, the new MCL for PFNA is nearly one hundred times lower than the MCL for benzene, which is one part per billion. If water systems detect the presence of this previously unregulated chemical above the very low new MCL, they will be required to implement new treatment—at the steep cost of $500,000 to $1 million per million gallons of water treated per NJDEP’s estimate—or find alternate water supplies. In addition, testing water supplies for PFNA on a statewide basis, as compared to earlier sporadic efforts to detect PFNA, could unearth previously unknown sources of PFNA contamination that would have to be remediated under New Jersey’s site remediation program.
PFNA is one member of a class of chemicals called per- and polyflouroalkyl substances (“PFAS”) that have been used in numerous industrial applications and in consumer products for decades, but that have come under increasing regulatory scrutiny in recent years. PFNA in particular was used in the manufacture of high-performance plastics. PFAS resist natural degradation when released into the environment and remain in the body after being consumed; studies also have linked certain PFAS to various health risks, including cancer. Because of these health risks and the persistence of PFNA in the environment, earlier this year NJDEP listed PFNA as a “hazardous substance” under its regulations promulgating the Spill Compensation and Control Act. PFNA in groundwater now must be remediated when its concentration exceeds 13 parts per trillion as a consequence of the hazardous substance listing.
Under NJDEP’s new MCL rule, water systems will need to start testing for PFNA as soon as the first quarter of 2019. Smaller water systems must test for PFNA first. The PFNA testing requirement is triggered in 2019 for public water systems that use groundwater as their source and that serve less than 10,000 people, as well as water systems that do not serve the general public in their homes, such as a water system supplying a commercial building. For water systems using surface water or larger water systems using groundwater, the requirement is not triggered until 2020.
Because PFNA was not listed as a hazardous substance until this year, parties remediating contaminated sites typically have not investigated for PFNA. Parties responsible for PFNA found in drinking water will be exposed to claims not only for the costs of treating drinking water found to be contaminated, but also will be required to remediate the source of PFNA contamination, whether that source is a site already subject to remediation for other hazardous substances or a site that heretofore was not known to be contaminated. NJDEP optimistically predicted that the new PFNA testing regime would not disclose water systems impacted by PFNA beyond the thirteen water systems now known to be impacted based on earlier, piecemeal testing efforts. Several commenters on the proposed rule doubted NJDEP’s assessment before the MCL was adopted and predicted that currently unknown contamination will be discovered.
The immediate consequence of New Jersey’s first-in-the-nation MCL for PFNA is to impose new testing requirements and, potentially, costly treatment obligations on water systems. In the long term, testing drinking water for PFNA may uncover contamination that has long remained hidden. NJDEP also can be expected to establish MCLs for other PFAS compounds in the future if current trends continue.