New Jersey Takes Aim at PFAS and Chemical Manufacturers
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.