Regulation of PFAS in New Jersey
If your property is currently undergoing remediation, or if you have ongoing maintenance or monitoring obligations associated with remediation being implemented at your property, you could soon be facing a new round of remedial obligations. The investigation and remediation of contaminants of emerging concern (CEC), particularly per- and polyfluoroalkyl substances, or PFAS, may be required per the New Jersey Department of Environmental Protection’s (NJDEP) 2021 CEC guidance and the NJDEP’s 2022 Interim Remedial Standards for certain PFAS.
On October 17, 2022, the NJDEP published interim soil remediation standards (“Interim SRS”) for four types of PFAS: perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA), perfluorooctane sulfonate (PFOS), and hexafluoropropylene oxide dimer acid and its ammonium salt, also known as GenX. According to the NJDEP, “the nature of these chemicals, including their toxicity, bioaccumulation and potential health effects, indicates the need for interim remediation standards, so that PFNA, PFOA, PFOS and GenX that are present in soil can be investigated and remediated to protect public health.”
Notably, for more than a decade, scientists have been studying the health effects associated with PFAS, and these contaminants have been subject to increasing regulation across the country. PFAS are found in hundreds of daily-used products including nonstick cookware, firefighting foam, moisture-and stain-resistance clothing, carpeting and upholstery, cleaning products, food containers, grease-resistant food packaging, waterproof mascara, sunscreen and shaving cream. Often deemed “forever chemicals”, PFAS remain in the environment for an unknown length of time and bioaccumulate in the bodies of humans and animals. In fact, a 2015 Center for Disease Control and Prevention (CDC) study estimates that 97% of humans have PFAs in their blood. Reportedly PFAS are associated with a wide array of serious health effects even at low levels of exposure, including cancer, hormone disruption, liver and kidney damage, developmental and reproductive harm, changes in cholesterol levels, and immune system toxicity.
In the last eight years, New Jersey has set strict limits on the presence of PFOA, PFOS and PFNA in drinking water, becoming a national leader in regulating these harmful chemicals. The State’s efforts to regulate PFAS began in July 2015, following the New Jersey Drinking Water Quality Institute’s recommendation to develop health-based maximum containment level (MCL) for PFNA. In 2018, New Jersey set a MCL for PFNA at 13 parts per trillion, becoming the first state to establish an enforceable drinking water standard for PFAS. Then, in 2020, New Jersey adopted groundwater quality standards and MCLs for PFOA and PFOS at 14 and 13 parts per trillion, respectively. New Jersey is now continuing to broaden the scope of its regulation of PFAS with NJDEP’s most recent interim remediation standards.
According to the NJDEP, the Interim SRS are effective immediately, but the NJDEP will ultimately replace the Interim SRS with duly promulgated standards through typical agency rule-making procedures. In the meantime, the Interim SRS include set values for the residential and nonresidential Ingestion-Dermal Exposure Pathway, as well as for the soil leachate standards for the Migration to Groundwater Exposure Pathway. The interim soil remediation standard for the Migration to Groundwater Exposure Pathway will require an area of concern/site-specific calculation pursuant to N.J.A.C. 7:26D.
Importantly, the new standards require properties currently undergoing environmental investigation or remediation to evaluate whether there was historic use of these chemicals and, if so, to investigate and remediate to applicable NJDEP standards. As such, it is important to note that for sites that have not yet received a No Further Action letter or Response Action Outcome, or that are subject to certain long-term monitoring and maintenance requirements, the Interim SRS may now be applicable. In cases where a site remedy has already been completed, the NJDEP could reopen closed cases requiring a responsible party to further evaluate and to address these CESs. This could subject a property owner or the party responsible for the remediation to a new round of enforcement by the NJDEP, leading to additional remedial costs for those sites. Additionally, prospective purchasers should now consider these contaminants as part of their environmental due diligence investigations when considering whether to proceed with a sale and acquire a property.
In March 2023, the USEPA published proposed National Primary Drinking Water Standards and Maximum Contaminant Levels (MCLs) and Hazard Index for six categories of PFOAs, which then went through a 60-day public comment period.
Once the USEPA’s standards are finalized and go into effect following the federal rulemaking procedures, states will be required to have similar drinking water and groundwater standards that are equal to or more stringent than those standards proposed by USEPA. Of the 6 categories outlined in the USEPA’s proposed rule, NJDEP’s current groundwater standards are less stringent for three compounds (PFOA, PFOS, PFNA) and currently NJDEP does not have equivalent groundwater standards for three other categories (PFBS, Gen-X, and PFHxS).
If the USEPA proposed standards are promulgated as proposed, NJDEP’s PFOA groundwater
standards would require further modification to be at least as strict as USEPA’s proposed
groundwater standards. Although the USEPA anticipated finalizing the proposed National
Primary Drinking Water Standards, MCLs and Hazard Index by the end of 2023, at this time the
final rule has not been announced.
Contact Davis Environmental Law for more information about how these standards may impact ongoing remediations and property acquisitions.