The New Jersey Department of Environmental Protection (NJDEP) Site Remediation and Waste Management Program recently launched a webpage dedicated to “Contaminants of Emerging Concern.” According to NJDEP, the new webpage “focuses on Per- and Polyfluoroalkyl Substances (PFAS)” such as perfluorooctanoic acid (PFOA); Perfluorononanoic Acid (PFNA); and Perfluorooctanesulfonic Acid (PFOS). NJDEP later announced at a technical conference that hundreds of PFAS are present in the environment; are detrimental to human health and the environment in very low concentrations; and are actively being studied by NJDEP. The import of these comments from NJDEP is that the State is developing standards for many other PFAS.
According to NJDEP, contaminants of emerging concern such as PFAS, “if discharged to the waters or onto lands of the State, are pollutants that must be remediated using a Licensed Site Remediation Professional (LSRP). When the remedial objective for a site is an entire site final remediation document and the site is currently or was formerly occupied by facilities that stored, handled, and used contaminants of emerging concern, LSRPs must consider these contaminants of concern during the investigation and remedial action. LSRPs must evaluate the site for potential spills and releases through air, water, and waste discharges.” We expect the administration of Governor Murphy and Commissioner McCabe to support and expand these efforts to establish cleanup standards for PFAS, often in the parts per trillion.
The regulated community may challenge these efforts by NJDEP to establish cleanup standards for PFAS. On December 19, 2017, the Superior Court of New Jersey, Appellate Division, issued an unpublished opinion in Chemistry Council of New Jersey v. NJDEP, No. A-1439-15T4, that invalidated the Interim Specific Ground Water Quality Criteria (ISGWQC) for PFNA adopted by NJDEP. According to the court: “The record here shows that these interim criteria have become de facto a permanent regulatory scheme without the agency complying with the requirements of the [Administrative Procedures Act] APA. As such, these measures are declared invalid.” Opinion at 15. Although the court’s opinion may be moot as to PFNA in light of rulemaking initiated by NJDEP in 2017 and finalized on January 16, 2018, which set a final standard for PFNA, the message from the court is clear. Any effort by NJDEP to regulate other PFAS must more promptly trigger the formal rulemaking process under the APA, with its attendant opportunity for comment and, potentially, litigation. In 2018, we expect to see new cleanup standards for previously obscure PFAS, new rules, and potentially litigation as NJDEP and the regulated community grapple with how to address these contaminants of emerging concern.