The U.S. Environmental Protection Agency ("EPA") proposed the first national drinking water standards for per- and polyfluoroalkyl substances ("PFAS"), sometimes called “forever chemicals,” on March 14, 2023.
The proposed rule would establish maximum contaminant levels ("MCLs") for six PFAS known to be found in drinking water, including perfluorooctanoic acid ("PFOA"), perfluorooctane sulfonic acid ("PFOS"), perfluorononanoic acid ("PFNA"), hexafluoropropylene oxide dimer acid ("HFPO-DA", commonly known as GenX chemicals), perfluorohexane sulfonic acid ("PFHxS"), and perfluorobutane sulfonic acid ("PFBS"). Under the new rule, public water systems would be required to monitor for these chemicals, alert the public regarding PFAS levels, and take measures to decrease them if they surpass the approved standards.
EPA anticipates that the proposed rule will be finalized by the end of 2023.
The Proposed Rule’s Impact on New Jersey
If finalized as written, the new rule will have significant implications for public water systems across the nation, and New Jersey is no exception. Under New Jersey law, National Primary Drinking Water Regulations like the newly proposed PFAS standards are automatically incorporated into the State’s Safe Drinking Water Act Regulations. N.J.A.C. 7:10-5.1. Typically, the federal drinking water standards establish a floor upon which New Jersey sometimes implements additional restrictions. But in this case, EPA’s proposed rule is substantially stricter than New Jersey’s current PFAS MCLs, which the New Jersey Department of Environmental Protection ("NJDEP") promulgated in 2020 (for PFOA and PFOS) and 2018 (for PFNA).
For example, New Jersey currently has enforceable MCLs for just three PFAS: PFOA, PFOS, and PFNA. The new rule would add to that list PFHxS, PFBS, and the GenX Chemicals. Moreover, the EPA rule sets the MCL for PFOA and PFOS at 4 parts per trillion (ppt), several times lower than New Jersey’s current MCL of 14 ppt for PFOA and 13 ppt for PFOS and PFNA. The four other PFAS will be regulated under a mixture standard under EPA’s proposal, whereby a hazard index will be used to determine if the combined levels of any of those PFAS in a given water system pose a potential risk.
In addition, the automatic incorporation into New Jersey’s Safe Drinking Water Act regulations of EPA’s proposed MCLs also will have the effect of changing New Jersey’s groundwater remediation standards for PFAS. The Department’s regulations require that “the health-based level used to establish [an] MCL shall be the specific groundwater quality criterion for the constituent.” N.J.A.C. 7:9C-1.7(c)(3)(i). In turn, these groundwater quality standards are the groundwater remediation standards for Class II groundwater, which is the groundwater classification for most of the state. N.J.A.C. 7:26D-2.2(a)(1).
Claims for PFAS Treatment Costs in New Jersey
New Jersey’s idiosyncratic statutory scheme for recovery of environmental cleanup costs under the Spill Act may provide unique opportunities for recovering treatment or remediation costs that the strict MCLs for PFAS under EPA’s proposed rule could require. NJDEP has designated PFOA, PFOS, and PFNA, but not the other PFAS compounds covered under EPA’s proposed rule, as “hazardous substances” under the Spill Act. Costs to address drinking water contaminated with hazardous substances are considered “cleanup and removal costs” that are recoverable under the Spill Act's strict liability scheme. Finally, and most significantly, recent decisions of New Jersey courts have left open the possibility that parties who manufactured and sold hazardous substances, including PFAS, could be strictly liable under the Spill Act even if those parties are not themselves the discharger. We have previously written on our blog here and here about cases implicating this novel and evolving theory of Spill Act liability. If non-discharging manufacturers of PFAS are found to be strictly liable under the Spill Act, it will be simpler for parties incurring costs to treat PFAS in drinking water or to comply with increasingly stringent PFAS remediation standards to recover some of these costs. This theory of Spill Act liability would relieve potential plaintiffs of the burden to pinpoint the source of a PFAS discharge, which often could be difficult to prove given the ubiquitous presence of PFAS in groundwater in New Jersey.
At the federal level, EPA has proposed a rule identifying PFOS and PFOA as hazardous substances, which could open the door to CERCLA claims for the costs of treatment of drinking water to meet the proposed stringent MCLs. However, unlike under New Jersey’s Spill Act, CERCLA precedents are clear that parties who are merely selling a useful product, rather than disposing of a waste, are not liable. Thus, parties asserting CERCLA claims for PFOS or PFOA treatment costs will have to identify the particular source or sources of contamination, a hurdle that may prove difficult or impossible to surmount in certain circumstances.
If adopted, EPA’s proposed rule establishing PFAS MCLs may impose significant costs on water purveyors across the country and in New Jersey, where PFAS frequently have been detected in groundwater at levels exceeding NJDEP’s remediation standards. Water purveyors who may incur such costs, and parties incurring costs to remediate PFAS in groundwater, should keep abreast of ongoing developments in Spill Act litigation, which may provide unique opportunities for recovering these costs from other parties.
For more information, please contact any attorney in our environmental practice group. Michael Antzoulis, a law clerk at Riker Danzig and student at Seton Hall Law School, authored this article.