NJDEP’s Regulation of PFNA Must Proceed Through Rulemaking

December 21, 2017
John F. Gullace
MGKF Special Alert

On December 19, 2017, the Superior Court of New Jersey, Appellate Division, issued an unpublished opinion in Chemistry Council of New Jersey v. New Jersey Department of Environmental Protection, No. A-1439-15T4, that invalidated the Interim Specific Ground Water Quality Criteria (ISGWQC) for perfluorononanoic acid (PFNA) adopted by the New Jersey Department of Environmental Protection (NJDEP). 

In the litigation, NJDEP maintained that the ISGWQC for PFNA was properly adopted pursuant to N.J.A.C. 7:9C-1.7(c), but the court disagreed because the same rule requires an interim standard to be “replaced with specific criteria as soon as reasonably possible by rule.”  N.J.A.C. 7:9C-1.7(c)(2)(ii).  The court observed that NJDEP first established an ISGWQC for PFNA by publication through its website in March of 2014 and NJDEP could not claim the standards were still “interim.”  According to the court: “The record here shows that these interim criteria have become de facto a permanent regulatory scheme without the agency complying with the requirements of the [Administrative Procedures Act] APA.  As such, these measures are declared invalid.”  Opinion at 15. 

However, the court also stayed the implementation of its decision for thirty days to give NJDEP an opportunity to appeal and/or begin the formal rulemaking process to establish groundwater standards for PFNA.  NJDEP is poised to regulate several other per- and polyfluoroalkyl substances.  The message from the court is that any effort by NJDEP to regulate these substances must more promptly trigger the formal rulemaking process under the APA, with its attendant opportunity for comment and, potentially, litigation.  The decision may also have implications for other types of NJDEP actions that do not go through formal rulemaking, or do not promptly proceed to rulemaking.  Interestingly, the case appears to be a pyrrhic victory for the Appellants because NJDEP initiated the court-required rulemaking for PFNA months before the decision was issued.  49 N.J.R. 596(a) (Apr. 3, 2017).