NJDEP Making PFAS a Top Priority – What Regulated Entities Need to Do Now

NJDEP Making PFAS a Top Priority – What Regulated Entities Need to Do Now

The New Department of Environmental Protection (NJDEP) continues to show its commitment to identifying and investigating contamination involving poly- and perfluoroalkyl substances (PFAS), including perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). On March 13, 2019, the NJDEP established interim specific groundwater quality standards for both PFOA and PFOS, at 10 parts per trillion.  Most recently, the NJDEP issued a Directive ordering several companies to pay for the investigation and remediation of  PFAS-contamination. Additional enforcement action is likely on the horizon, and regulated entities should be taking steps now to address their potential liability.

Interim Specific Ground Water Quality Standards

On March 13, 2019, the NJDEP established interim specific groundwater quality standards for PFOA and PFOS. The interim specific ground water quality standard for both of these contaminants is 0.01 micrograms per liter (ug/L) or 10 parts per trillion (ppt). The interim specific criteria became effective upon publication on the NJDEP’s website and will remain in effect until replaced by specific criteria. As highlighted by the NJDEP, “New Jersey is among the first states to pursue regulation of these compounds.”

To comply with the Technical Requirements for Site Remediation, all contamination at a given site must be addressed, including all discharged hazardous substances, hazardous wastes, and emerging contaminants. The NJDEP recently published guidance regarding the handling of potential PFAS contamination. At a minimum, the person responsible for conducting the remediation is required to evaluate whether there is the potential that PFOA and/or PFOS may have been manufactured, used, handled, stored, disposed or discharged at the site or area of concern. If the scope of the remediation is for the entire site, then an entire site preliminary assessment is required to be conducted pursuant to the Technical Requirements for Site Remediation (N.J.A.C. 7:26E-3.1). If the scope of the remediation is for one or more specific areas of concern, then the licensed site remediation professional (LSRP) must use his or her professional judgement to determine what evaluation is necessary.

The next steps are determined by whether or not PFOA and/or PFOS were manufactured, used, handled, stored, disposed or discharged at the site:

• No PFOA/PFOS Use: If the evaluation/preliminary assessment indicates that PFOA and/or PFOS were not manufactured, used, handled, stored, disposed or discharged at the site or area of concern, then no additional investigation is required. However, the results of the evaluation/preliminary assessment must be included in the next remedial phase report. When a preliminary assessment is not conducted, the report must include the LSRP’s rationale and documentation supporting the evaluation that was completed.
• Potential PFOA/PFOS Use: If the evaluation/preliminary assessment indicates that PFOA and/or PFOS may have been manufactured, used, handled, stored, disposed or discharged at the site or area of concern, then the person responsible for conducting the remediation is required to conduct a site investigation for groundwater. If neither PFOA nor PFOS is detected in groundwater at concentrations exceeding the interim specific groundwater quality standards, then no additional investigation is required for these contaminants and the results of the site investigation can be included in the next remedial phase report.
• PFOA/PFOS Detected: If either or both PFOA or PFOS are detected in groundwater at concentrations exceeding the interim specific ground water quality standard, a remedial investigation and, if necessary, a remedial action of groundwater must be conducted. The person responsible for the remediation may elect to merge the remediation of the PFOA and/or PFOS with the existing case or to create a new case. If a new case is created, then separate remediation documents and forms must be submitted for each case, and separate fees will be applied to each case.

Of particular importance, the above requirements apply to all site remediation sites, including those sites subject to the upcoming May 7, 2019 remedial action regulatory deadline. Requests to extend the May 7, 2019 remedial action regulatory deadline to perform PFOA/PFOS evaluations/preliminary assessments must be submitted to the NJDEP by April 7, 2019.

The NJDEP’s guidance further provides:

For sites that received an unrestricted use final remediation document prior to March 13, 2019, no further evaluation is required at this time.  For sites that received a limited restricted use or restricted use final remediation document prior to March 13, 2019, the evaluation described above must be performed prior to and reported in the next biennial protectiveness certification.

In short, unrestricted use Response Action Outcomes (RAO) issued prior to March 13 do not have to be reopened to perform a PFOA/PFOS evaluation/preliminary assessment.  However, any other types of RAO issued are subject to reopening.

NJDEP PFAS Directive

On March 25, 2019, the NJDEP issued a directive requiring five companies – Solvay, DuPont, Dow DuPont, Chemours and 3M – to provide the agency with a detailed accounting of their use and discharge of  PFAS chemicals, in New Jersey. The NJDEP is seeking information regarding the use and discharge of the chemicals through wastewater treatment plants, air emissions, and sales of products containing the chemicals to current development, manufacture, use and release of newer chemicals in the state.

The NJDEP also notified the companies that the state will hold them financially responsible for the cost of remediation and treatment of PFAS-related contamination. “The Department has expended tremendous resources to investigate the presence of these substances in New Jersey’s environment, as well as monitor, treat, clean up, and/or remove these substances in impacted areas,” the directive states. “As a result, the Department has determined it is imperative to the protection of the public health and safety and the environment of New Jersey that such investigation, monitoring, testing, treatment, cleanup and removal continue, and that Respondents, not New Jersey residents, pay for these activities.”  By its directive, the NJDEP informed the parties that it seeks to recover more than $3 million from Solvay alone and that additional costs will be forthcoming.

The NJDEP issued the directive under the authorities granted by New Jersey’s Spill Compensation and Control Act, Water Pollution Control Act and Air Pollution Control Act. These state environmental laws empower the agency to act to prevent environmental pollution, enforce environmental laws, and obtain documentation about the discharge of pollutants.

Key Takeaways for the Regulated Community

Entities currently conducting investigations must now incorporate a PFOA/PFOS contamination evaluation/preliminary assessment. In addition, those subject to the May 7, 2019 RA regulatory deadline must submit requests to extend the deadline to perform PFOA/PFOS evaluations/preliminary assessments to the NJDEP by April 7, 2019. For compliance assistance in this rapidly developing area, we encourage entities to contact a member of the Scarinci Hollenbeck Environmental Law Group.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.