New Jersey Remains Focused on PFAS
New Jersey was among the first in the nation to promulgate standards to regulate per- and polyfluoroalkyl substances (PFAS) and has some of the most stringent standards in the nation. In the coming year, it is likely to bring particular attention to PFAS in wastewater discharges, the remediation of contaminated sites and water supply systems.
PFAS Source Evaluation and Reduction Requirements Survey
Over the past year, New Jersey has been attempting to understand the sources of PFAS in New Jersey, especially including wastewater discharges. On March 17, 2021, the New Jersey Department of Environmental Protection (NJDEP) sent a PFAS Source Evaluation and Reduction Requirements Survey to Category B NJPDES Discharge to Surface Water Permittees (industrial/commercial dischargers) and Category L NJPDES Significant Indirect User Permittees (dischargers to sanitary sewers) to evaluate potential sources of PFAS. Certain wastewater utilities in the state have also sent out surveys.
Permittees that received the survey were asked to identify their use of Class B firefighting foam, their handling, storage, use, application or manufacture of certain materials that are known to contain PFAS, and whether the permittee was using materials containing PFAS. Based on the responses to the initial PFAS survey, on August 18, 2021, the NJDEP sent a request for information to select Category B NJPDES Discharge to Surface Water Permittees and select Category L NJPDES Significant Indirect User Permittees, to require the collection of two samples for 12 PFAS at least 30 days apart and to submit the monitoring data to the NJDEP by December 15, 2021. The information requests appear to be the first step in New Jersey’s effort to quantify the use of PFAS in the state, and additional investigation by the NJDEP is likely.
PFAS As a Contaminant of Emerging Concern in the Site Remediation Program
New Jersey has also been focused on remediating PFAS contamination. On August 5, 2021, the NJDEP published guidance for the remediation of contaminants of emerging concern (including PFAS) if they are identified at a site undergoing remediation. Under the guidance, licensed site remediation professionals should evaluate every site currently undergoing remediation to determine if PFAS is a contaminant of concern and if further investigation or clean up is required. The NJDEP’s biennial certification form for sites undergoing monitoring and maintenance has also been revised to require an evaluation of contaminants of emerging concern at sites subject to a post-RAO remedial action permit. While the guidance does not necessarily require sampling, multiple lines of evidence must be used to determine if sampling and subsequent remediation is required, and the results of this evaluation must be included in the next remedial phase report (or biennial certification) for the Department’s review.
Water Supply Systems
Finally, New Jersey’s requirement that public water supply systems sample for PFAS has resulted in many public supply systems detecting PFAS in their drinking water. Addressing PFAS in drinking water can be expensive and litigation brought by the owners of these systems against parties allegedly responsible for the discharge of PFAS is on the rise – a trend that will continue in the coming year.