New Jersey in Forefront in Regulation of PFAS Despite Ongoing Legal Challenge
As noted elsewhere in this Forecast, the New Jersey Department of Environmental Protection (NJDEP) adopted ground water quality standards (GWQS) and maximum contaminant levels (MCLs) effective June 1, 2020, for two of the most prominent per – and polyfluoroalkyl substances (PFAS): perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). These new standards (0.014 ug/L for PFOA and 0.013 ug/L for PFOS) bring these emerging contaminants under much of the same regulatory umbrella already established in New Jersey for another PFAS chemical, perfluorononanoic acid (PFNA) and continues to secure New Jersey’s spot as one of the most proactive states in the regulation of PFAS contaminants. Indeed, New Jersey’s standards, as discussed below, are significantly lower than the recommended guidance set by the United States Environmental Protection Agency (EPA) of a screening level of 0.04 ug/l and Lifetime Drinking Water Health Advisory level of 0.07 ug/l, placing New Jersey well ahead of a growing national trend of states that have begun to regulate PFAS.
New Jersey’s efforts to regulate PFAS in ground water dates back to July 2015, when the New Jersey Drinking Water Quality Institute issued a recommended health-based MCL for PFNA of 0.013 ug/L. The recommendation served as the basis for NJDEP’s adoption of an interim specific ground water quality standard of 0.01 ug/L for PFNA on November 25, 2015, and subsequent amendments to both NJDEP’s GWQS and the Discharge of Petroleum and Other Hazardous Substances regulations to add PFNA to the list of Hazardous Substances (N.J.A.C. 7:1E) in January 2018. On September 4, 2018, NJDEP amended the MCL for PFNA in the GWQS rules to 0.013 ug/L, consistent with the newly established MCL for PFNA of 0.13 ug/L.
The recent adoption of standards and MCLs for PFOA and PFOS has similarly generated amendments to various environmental regulations, including adding both as Hazardous Substances under the Discharge of Petroleum and Other Hazardous Substance rules (N.J.A.C. 7:1E), and amending the GWQS (N.J.A.C. 7:9C), the Private Well Testing Act rules (N.J.A.C. 7:9E), the Safe Drinking Water Act rules (N.J.A.C. 7:10), and the New Jersey Pollutant Discharge Elimination System rules (N.J.A.C. 7:14A). Finally, the newly adopted GWQS also become ground water remediation standards (N.J.A.C. 7:26D-2.2(a)).
The adoption of the new standards should not come as a surprise however, and in fact many sites likely already considered their impact in ongoing site remediation in response to NJDEP’s adoption of interim specific groundwater quality standards for PFNA back in 2015 and PFOA and PFOS in March of 2019. Indeed, under the Technical Requirements for Site Remediation (N.J.A.C. 7:26E), in evaluating a contaminated site, LSRPs were already required to consider whether there were any historic or current use of emerging contaminants, which include PFNA, PFOA and PFOS, regardless of whether the contaminant is listed as a hazardous substance. This evaluation would have to be documented in the preliminary assessment for the site and, where such substances are documented, could lead to a site or remedial investigation of groundwater and possible remedial action. [See NJDEP’s website for details on Emerging Contaminants].
The ultimate fate of the new PFOA and PFOS standards remains uncertain. A coalition of public utilities, businesses and trade and business associations filed a petition with the New Jersey Appellate Division on October 1, 2020, arguing that NJDEP did not comply with the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., in adopting the PFOA and PFOS regulations, and further that the standards are arbitrary and capricious and not based on sound and rational scientific evidence. The coalition’s petition also sought immediate relief in the form of a stay of the regulations pending the Appellate Court’s full review of the legal challenges presented. On January 4th, 2021, the Appellate Division issued a one-page order denying the requested stay, leaving some doubt on whether the Appellate Division’s decision on the merits will change course. A decision on the merits of the challenge could come in 2021.