The New Jersey Department of Environmental Protection’s latest action creates several statewide environmental standards for three PFAS contaminants: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and perfluorononanoic acid (PFNA).
PFAS are highly durable chemicals that have been used for more than 50 years in a variety of applications, including in non-stick cookware and carpet protectant and in the manufacturing of cell phones and other electronic devices. They have important oil-, water-, temperature-, and fire-resistant attributes as well as electrical insulating properties, but persist in the environment and have been allegedly linked to a number of health concerns.
Overview of the Amendments
New Jersey’s action finalized new standards for PFOA, PFOS, and PFNA under the Safe Drinking Water Act rules, Discharge of Petroleum and Other Hazardous Substance rules, Ground Water Quality Standards, Private Well Testing Act rules, and New Jersey Pollutant Discharge Elimination System rules. New Jersey is attempting to limit human exposure to PFOA, PFOS, and PFNA on multiple fronts—public and private drinking water sources, groundwater, and contaminated sites.
Safe Drinking Water Act
As an amendment to the Safe Drinking Water Act rules (SDWA) at N.J.A.C. 7:10, New Jersey established a maximum contaminant level (MCL) for PFOA of 14 parts per trillion (ppt) and PFOS of 13ppt. This is not the first PFAS drinking water standard out of New Jersey. In September 2018, the state established a MCL for PFNA at 13ppt. Notably, there are no Federal drinking water standards for these contaminants. Rather, EPA has established a health advisory for total combined PFOA and PFOS of 70ppt, which is not a mandatory standard. The New Jersey MCLs for PFOA and PFOS require public water systems to monitor for the contaminants and treat water when there is an exceedance of an MCL. For context, New Jersey reports that as of January 2020, 169 public water systems in 19 out of 21 counties had detections of PFOA and PFOS over the MCLs. Public water systems are required to begin PFOA and PFOS monitoring by April 1, 2021.
Private Well Testing Act
New Jersey also adopted rules applying to private wells under the Private Well Testing Act (PWTA) rules at N.J.A.C. 7:9E. The PWTA requires testing (but not treatment) of private wells at the time of a real estate transaction, or every five years for rental properties, and notification to potential buyers and tenants. Unlike the SDWA, the PWTA leaves installation of treatment at the discretion of the owner. These new rules require owners of private wells to test for PFNA, PFOA, and PFOS beginning December 1, 2021.
Ground Water Quality Standards
In line with New Jersey’s new SDWA drinking water standards, the State adopted specific Ground Water Quality Standards (GWQS) at the same levels—PFOA at 14ppt and PFOS at 13ppt. N.J.A.C. 7:9C. These rules replace previous interim specific ground water quality standards for PFOA and PFOS of 10ppt. New Jersey had also previously set a specific ground water quality standard of PFNA of 10ppt, but amended it to 13ppt on September 4, 2018. The most significant effect of the new GWQS is that they will serve as remediation standards for cleanup of contaminated ground water at sites where remedial action is undertaken.
List of Hazardous Substances
Also related to remediation, New Jersey’s new rules create liability for PFOA and PFOA discharges under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the Spill Act), which provides strict liability for cleanup and removal costs resulting from any discharge of a hazardous substance. The new rules add PFOA and PFOS to the List of Hazardous substances, at N.J.A.C. 7:1E, under the Discharges of Petroleum and Other Hazardous Substances (DPHS) rules. PFNA was previously added to the List of Hazardous Substances in January 2018. This listing should also create further responsibilities for owners and operators of industrial establishments who are subject to the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 et seq., which requires investigation and, if necessary, remediation, of releases of hazardous substances at applicable sites prior to certain sales of real estate or transfers of business operations.
New Jersey Pollutant Discharge Elimination System
Lastly, New Jersey amended the New Jersey Pollutant Discharge Elimination System (NJPDES) rules, which govern permitted discharges of pollutants into the State’s surface waters. This amendment added PFNA, PFOA, and PFOS to the Permit Application Testing Requirements/Pollutant Listings and the Requirements for Discharges to Ground Water only. N.J.A.C. 7:14A. New Jersey did not alter its requirements for discharges to surface water in this rulemaking. The new testing requirements are not meant to target all facilities. Facilities that do not currently use, or have previously used PFAS will not be required to monitor for PFNA, PFOA, and PFOS. However, the State specifically identifies publicly owned treatment works, aquifer storage and recovery facilities, airports, and military bases, as facilities where the presence of these compounds is reasonably expected. Such facilities thus will be required to monitor for PFNA, PFOA, and PFOS if they hold a NJPDES-DGW permit. New Jersey indicated it will incorporate the new NJPDES-DGW permit monitoring requirements through State-initiated modifications or renewals of existing or expired permits. New Jersey did not, in this proposal, impose requirements on discharges of stormwater (DST) or surface water (DSW) permits, but that may be the subject of future rulemaking.
Impact on Industry
New Jersey’s multitude of amendments expand responsibilities and potential liabilities for public and private industry in the State. While these new rules provide some clarity for operators in New Jersey, they further the divide between Federal and state standards. As noted above, EPA has established a non-enforceable health advisory for total combined PFOA and PFOS of 70ppt. EPA has also added 172 different PFAS to the Toxic Release Inventory and has proposed a rule that would determine PFOA and PFOS should be regulated under the Safe Drinking Water Act, but these federal initiatives have little immediate impact on industry when compared to the New Jersey rules.
From a litigation perspective, New Jersey’s most impactful amendments will likely be the SDWA drinking water MCLs and the addition of PFOA and PFOS to the List of Hazardous Substances under the Spill Act and ISRA. New Jersey has already pursued litigation under the Spill Act and ISRA which rely partially on these rules in proposed form. Based on these amendments, remedial actions as a result of Spill Act liability will likely require cleanups to reduce or eliminate exposure to these contaminants to the applicable ground water standards.
On the transactional side, amendments to the PWTA create additional responsibilities for owners of private wells subject to sale or lease. Owners of private wells should be aware of these additional testing requirements for PFNA, PFOA, and PFOS and their responsibility to advise prospective buyers or tenants of the results starting December 1, 2021. Buyers and tenants are responsible for installing their preferred treatment, such as a point of entry treatment (POET), point of use (POU) treatment system, or alternative sources of water.
From a compliance perspective, public water systems should be prepared to monitor for PFOA, PFOS, and PFNA and treat water when there is an exceedance of an MCL starting in the first quarter of 2021. For both public water systems and private well owners, engaging a certified laboratory may prove difficult until more labs are certified. As of June 2020, there are 19 laboratories certified to conduct the required testing, but only two in New Jersey. Further, NJPDES-DGW permit holders who currently use or previously used any PFAS in their operations should expect to be contacted by the State to modify or renew their permit based on the new PFNA, PFOA, and PFOS testing requirements.