Has NJDEP gone beyond its statutory authority in… requiring that all “persons responsible for conducting the remediation” at “all site remediation sites” must now “evaluate whether there is the potential that PFOA and/or PFOS may have been manufactured, used, handled, stored, disposed or discharged at the site”?

The New Jersey Department of Environmental Protection (NJDEP) has just issued new perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) guidance that, if left unchallenged, will impose immediate and potentially substantial obligations and costs on persons remediating contaminated sites in New Jersey. Although this new guidance may be authorized by the Industrial Site Recovery Act (ISRA), (N.J.S.A. 13:1K-6, et seq.), authority for its issuance under the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11, et seq.) is not clear.

New Guidance

On March 13, 2019, NJDEP formally established new interim specific groundwater quality standards for PFOA and PFOS. These standards were proposed in 2018 and became effective upon NJDEP’s posting them to a “Table of Interim Specific Ground Water Quality Standards” located on NJDEP’s website. NJDEP issued the PFOA/PFOS guidance concurrently with these interim standards.

PFOA and PFOS have been the subject of a growing number of press reports and lawsuits over the past several years. In environmental regulatory parlance, they fall under the label of “contaminants of emerging concern.” In the PFOA/PFOS guidance, NJDEP describes PFOA/PFOS as substances that are “used in everyday products in our homes, on our farms, in our businesses, or by industry in commercial processes. These compounds are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, prescription and nonprescription drugs, disinfectants, and pesticides. Some of these contaminants are unintended byproducts from the manufacturing process… .”

Until now, New Jersey has had no groundwater quality standards for PFOA/PFOS. In establishing these regulatory standards, New Jersey has become a leader among the states in attempting to address groundwater contaminated with these substances. However, an interesting legal question is raised by the way that NJDEP has proceeded: Has NJDEP gone beyond its statutory authority in publishing guidance requiring that all “persons responsible for conducting the remediation” at “all site remediation sites” must now, “[a]t a minimum, … 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”?

Statutory Authority?

It is a precept of administrative law that an administrative agency has only those powers that are granted to it by statute. Here, NJDEP has chosen to regulate PFOS/PFOA by including those substances on its Table of Interim Specific Ground Water Quality Standards. So far, so good: If groundwater at a site is determined to be contaminated with PFOA/PFOS, there are now specific standards to be met when remediating the contamination.

Responsible Parties

But how does the establishment of groundwater quality standards translate into an affirmative obligation on the part of a “person responsible for conducting the remediation” of a site contaminated with a substance or substances other than PFOA/PFOS to evaluate whether there is the potential for PFOA/PFOS contamination? And, upon concluding that such potential exists, how is such a person obligated to take further investigative measures? In its recently published guidance, NJDEP does not answer these questions.

Licensed Site Remediation Professionals

Not only has NJDEP stated that “persons responsible for conducting the remediation” (e.g., dischargers, owners, operators) at existing sites must evaluate the potential for PFOA/PFOS contamination, but it has also issued a directive to licensed site remediation professionals (LSRPs): “When the site or area of concern under remediation is currently or was formerly occupied by facilities that manufactured, stored, handled, or used contaminants of emerging concern [PFOA/PFOS], LSRPs must consider these contaminants during the investigation and remedial action.” Here, too, NJDEP has offered no authority for its action.

May 7 Deadline

Finally, NJDEP has effectively imposed a near immediate deadline to meet the stated obligation to evaluate the potential for PFOA/PFOS contamination: “This requirement applies to all site remediation sites, including those sites subject to the May 7, 2014 statutory timeframe to complete the remedial investigation and for which the regulatory timeframe to complete the remedial action is May 7, 2019.” Recognizing that this deadline will be unreasonable in some (if not most) cases, NJDEP has invited applications for extensions, and implied that at least some extension requests will be granted.

ISRA Cases

In the context of an ISRA case, NJDEP’s approach may fit – the reason being that ISRA (a) is triggered by events (e.g., cessation of operations, sale of real estate) having nothing necessarily to do with the release of any particular hazardous substance or other pollutant, and (b) requires, upon being triggered, remediation of “the [entire] industrial establishment.”

“Remediation” is defined in ISRA to include “all necessary actions to investigate… any… suspected… discharge of hazardous substance…, including, as necessary, the preliminary assessment… .” “Preliminary Assessment,” in turn, is defined in ISRA to mean, in relevant part, “the first phase in the process of identifying areas of concern and determining whether hazardous substances… are or were present at an industrial establishment… and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic… .” Bottom line: Requiring consideration of whether PFOA/PFOS were used, discharged, etc. is, arguably, authorized by statute in ISRA cases.

Spill Act Cases

In the context of a Spill Compensation and Control Act case, NJDEP’s approach appears unfounded. This is because the Spill Act (New Jersey’s “superfund” statute), is applicable only with respect to identified “discharges” of hazardous substances. (“The Legislature intends by the passage of this act to exercise the powers of this State to control the transfer and storage of hazardous substances and to provide liability for damage sustained within this State as a result of any discharge of said substances… .”) N.J.S.A. 58:10-23.11a.

Consistent with this prescribed scope, NJDEP’s enforcement authority under the Spill Act is limited to directing the discharger or other responsible person to clean up and remove (or arrange for the cleanup and removal of) the discharge. (“Whenever any hazardous substance is discharged, the department may, in its discretion, act to clean up and remove or arrange for the cleanup and removal of the discharge or may direct the discharger to clean up and remove, or arrange for the cleanup and removal of, the discharge.”) N.J.S.A. 58:10-23.11f. The statute simply does not require, address or even contemplate exploration for unknown site contamination unrelated to the known discharge being addressed.

Technical Regulations

Although NJDEP has asserted in its new PFOA/PFOS guidance that “[t]o comply with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E), all contamination, including all discharged hazardous substances, hazardous wastes, and pollutants, must be addressed,” those regulations (the “Tech Regs”) do not actually require the investigation of current or historical PFOA/PFOS use, discharge, etc., at a Spill Act site when there is no information to suggest such. The Tech Regs require exploratory investigation for unknown contamination (via a preliminary assessment) only when the person responsible for conducting the remediation falls into one or more of the following categories:

  1. Is required to submit a completed ISRA General Information Notice to NJDEP pursuant to ISRA;
  2. “Wants a final remediation document for the entire site”;
  3. Is remediating a site or portion of a site for use as a child care center, or for use as a public, private or charter school;
  4. Is conducting an evaluation of a child care center; or
  5. Is ordered to do so by a court or NDJEP. N.J.A.C. 7:26E-3.1.

Summary

A simple hypothetical often provides helpful clarification. Assume that a manufacturing facility identifies a leaking valve on an above ground storage tank that contains petroleum, and observes oil-stained soil beneath the tank. Or, that the facility experiences a spill of a spent solvent while transferring the material from a process vessel into waste containers in preparation for off-site disposal, and the spilled solvent enters a floor drain and is released into a drainage swale. In both cases, assume that the facility owner/operator reported the release, hired an LSRP and fully complied with the Tech Regs in all respects relating to the known discharge.

In these instances, do the Tech Regs (or any other NJDEP regulations) require the owner/operator to expand the scope of its investigation to include consideration of PFOS/PFOA? If this were the case, why would there not also be a requirement to investigate past operations in order to determine whether PCBs (polychlorinated biphenyls) might ever have been present, and, if so, to sample for them? Why stop at PCBs? Why not every hazardous substance included in the NJDEP Ground Water Quality Standards? Put another way, what makes PFOA/PFOS special? Yes, they are “emerging” as contaminants, but the Spill Act and the Tech Regs were never intended as vehicles for exploring the potential presence of emerging contaminants. That much is clear. NJDEP’s authority to regulate via its March 13, 2019 guidance is not.