On March 25, 2019 the Commissioner of the New Jersey Department of Environmental Protection (“NJDEP”) issued a Statewide Directive, Information Request and Notice to Insurers (“Directive”) putting eight entities on notice due to the NJDEP’s belief that these companies are responsible for causing contamination with poly- and perfluoroalkyl substances (“PFAS”). (The substances at issue include perfluorononanoic acid (“PFNA”), perfluorooctanoic acid (“PFOA”), and perfluorooctanesulfonic acid (“PFOS”), and their replacement compounds, including but not limited to “GenX”, commonly referred to as “emerging contaminants”.) These “emerging contaminants” are used in everyday household products, as well as in numerous commercial and industrial processes, including detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, prescription and nonprescription drugs, disinfectants and pesticides. Since these contaminants constitute a substantial threat to human health and the environment, they have become an increasing area of concern for state government and administrative agencies.
The Directive indicates that the NJDEP will be expending resources to identify and investigate the presence of PFAS throughout the state, including resources to monitor, treat, clean up and/or remove PFAS in impacted areas. Therefore, the NJDEP is requiring the entities identified in the Directive to pay for these investigatory and remedial activities. The Directive also seeks a full understanding of the identified parties’ historical development, manufacture, use, storage, release, discharge and/or disposal of PFAS in New Jersey, as well as an accounting of the current activities relating to these chemicals. The entities are labeled responsible pursuant to various environmental statutes in New Jersey, including the Spill Compensation and Control Act, the Water Pollution Control Act, the Air Pollution and Control Act, and the Solid Waste Management Act.
Presently there is no federal guidance as to how to meaningfully regulate emerging contaminants, and therefore it has been up to state governments to take action. In New Jersey, this has included the adoption of a maximum contaminant level (“MCL”) for PFNA of 13 ng/L under the Ground Water Quality Standard regulations and Safe Drinking Water Act Rules, as well as adopting amendments to the Discharge of Petroleum and Other Hazardous Substances regulations to include PFNA to the List of Hazardous Substances. The NJDEP has also issued updated drinking water guidance values establishing the MCL for PFOA at 14 ng/L, and an MCL of 13 ng/L for PFOS. Further, on March 13, 2019 the NJDEP established an interim specific ground water quality standard for PFOA and PFOS of 10 ng/L.
The NJDEP’s recent Directive should serve as a signal that New Jersey is making an aggressive attempt to protect human health and the environment from risks of emerging contaminants, which is likely going to have a significant impact on remediation projects throughout the state.
The NJDEP Directive can be accessed here.