NJDEP Sues The United States Over PFAS Contamination

Fox Rothschild LLP

Fox Rothschild LLP

On January 14, 2021, the New Jersey Department of Environmental Protection (“NJDEP”) filed suit against the United States to compel the United States to address immediately contamination of New Jersey groundwater with PFOA and PFOS from facilities owned or operated by the United States. The suit, which was brought pursuant to the federal Safe Drinking Water Act (“SWDA”) and the New Jersey Safe Drinking Water Act (NJSWDA”), alleges that the use of AFFF at federal facilities caused the contamination, which presents an imminent and substantial endangerment to drinking water supplies in New Jersey. NJDEP seeks injunctive relief ordering the United States to control the source of PFOS and PFOA, to remediate the PFOS and PFOA, to provide alternate water supplies, and to conduct medical monitoring for New Jersey residents who have been exposed. NJDEP also seeks recovery of its reasonable costs for investigation and remediation of the PFOA and PFOS contamination above New Jersey drinking water standards. New Jersey drinking water standards for PFOS (13 ppt) and PFOA (14 ppt) are considerably lower than EPA’s Lifetime Health Advisory level (“HAL”) of 70 ppt.

The complaint asserts that in the case of an imminent and substantial endangerment to human health where the United States has caused or contributed to the endangerment, NJDEP has the authority to institute an action against the United States because NJDEP has primary enforcement authority under the SDWA and the SDWA includes a provision requiring federal agencies to comply with all requirements of the SDWA pertaining to public water systems. The complaint further alleges that under the savings provision of the NJSWDA, federal sovereign immunity is waived and NJDEP has the authority to file an action for private wells.

The complaint focuses on the use of AFFF at Department of Defense operations at Joint Base McGuire-Dix-Lakehurst (“JBMDL”), Naval Weapons Station Earle, and Naval Air Warfare Center Trenton noting that “a single firefighting training event can release thousands of gallons of foam-laced water into the environment” and “decades of AFFF use throughout JBMDL has demonstrably contaminated groundwater on and around the joint base.” The complaint alleges that the United States failed to take sufficient action to protect off-site drinking water supplies near JBMDL, which forced NJDEP to conduct its own sampling and provide an alternate water supply for off-site residents. Further, the complaint alleges that the United States had not taken any action to address contamination in off-site private wells down-gradient of Naval Weapons Station Earle that exceed the New Jersey drinking water standards but do not exceed the EPA HAL.

The complaint was filed in the AFFF Multi-District Litigation in federal court in South Carolina, but NJDEP did not waive its designated home venue of New Jersey, thus preserving its ability to challenge venue at a later time.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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