In a move
that has assuredly grabbed the attention of the regulated community, the New
Jersey Department of Environmental Protection (“NJDEP”) recently commenced two
major initiatives in an effort to further address the emerging, hot-button
issue of poly- and perfluoroalkyl substances (“PFAS”) contamination in the
state. Specifically, on March 13th, the NJDEP established new interim specific
groundwater quality standards for two particular PFAS compounds,
perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”),
which became effective immediately. Then on March 25th, the NJDEP issued a
directive to five chemical manufacturing companies that it believes are the
primary source of widespread PFAS contamination in New Jersey. The directive
requires these companies to provide a detailed accounting of their historical
use and discharge of PFAS and notifies them that the State will hold them
financially responsible for costs associated with the investigation and
remediation of PFAS contamination for which they are responsible. A few days
later on March 27th, the NJDEP filed a suit against certain of these chemical
companies seeking cleanup and removal costs and damages for injuries to natural
resources. With these new initiatives, New Jersey continues to be one of the
states at the forefront of investigating and regulating PFAS chemicals. (To see
how New York is handling PFAS, see our March 4, 2019 Blog Article New York Expands
Requirement To Investigate Emerging Contaminants.)
Significantly, in conjunction with establishing the new interim
specific groundwater standards for PFOA and PFOS, both set at 0.01 micrograms
per liter (ug/L) or 10 parts per trillion (ppt), the NJDEP issued a guidance
document mandating that all remediating parties are required to evaluate the
potential for, and if warranted investigate and remediate, PFOA/PFOS
contamination at their sites. The guidance document also makes clear that this
requirement applies to all active site remediation cases, including those
subject to upcoming regulatory and mandatory timeframes as well as those cases
that received a limited restricted or restricted use response action outcome
(in which case the evaluation must be performed prior to and reported in the
next biennial protectiveness certification). In making this clarification, the
NJDEP recommends that if a remediating party cannot complete the evaluation and
any required investigation and remediation by its applicable timeframes, it
should apply for an extension. Notably, however, if PFOA or PFOS is identified,
a remediating party has the option to report the discharge and create a new
case specifically for the PFOA/PFOS contamination that, going forward, will be
subject to separate timeframes for completion of the remedial investigation and
remedial action.
This new requirement to evaluate and address PFOA/PFOS is likely
to have significant impacts on site remediation cases as well as parties
involved in, or performing due diligence associated with, property and other business
transactions. Parties that may be at the end of their investigation or
remediation may now be forced to go back and address these contaminants at
significant unanticipated cost. While some may question or, in the right case,
may even challenge the enforceability of NJDEP guidance since it was not
promulgated through the Administrative Procedures Act process, it is clear that
the NJDEP is intent on making responsible parties evaluate, and if warranted,
address PFAS contamination at their contaminated sites.
For more information, please contact the author Jaan M. Haus at jhaus@riker.com or any attorney in our Environmental Practice Group.
