From 2018 through 2020, the New Jersey Department of Environmental Protection (the Department or NJDEP) adopted a suite of new rules to address certain per- and polyfluoroalkyl substances (PFAS), specifically, PFOA, PFOS and PFNA, under multiple Department programs. Since that time, the Department continued to advance additional measures targeting these compounds under the auspices of its regulatory and enforcement authorities. More recently, the New Jersey Legislature has taken aim at these and other PFAS, expanding the scope of certain existing laws and introducing a collection of new bills regulating the use, detection and research of PFAS throughout the State. Here’s an overview of the current regulation of PFAS in New Jersey and what to expect in 2023.
Drinking Water Maximum Contaminant Levels
New Jersey was at the forefront of regulating PFAS in drinking water, being one of the first states to propose and adopt regulations setting a maximum contaminant level (MCL) for PFNA (13 parts per trillion (ppt)) in 2019, followed closely by the adoption of MCLs for PFOA (14 ppt) and PFOS (13 ppt) in 2020. These regulations require public water systems to routinely monitor for these contaminants, notify their customers of any violation within 30 days of determining that a violation has occurred, and report MCL violations to the public in their annual Consumer Confidence Reports.
Because the current New Jersey MCL regulations apply to public water systems only, New Jersey also expanded the testing of private wells under the Private Well Testing Act (PWTA), to address PFOA, PFOS and PFNA. The PWTA requires the testing of private potable wells prior to closing the sale of the property and also requires landlords to test private potable wells every five years and provide those test results to their tenants. As of December 2021, PFOA, PFOS and PFNA were added to the PWTA list of water quality parameters required to be tested.
New Jersey’s MCLs for PFOA and PFOS could change in 2023. The United States Environmental Protection Agency (US EPA) anticipates issuing a proposed National Primary Drinking Water Regulation for PFOA and PFOS in 2023. The proposal, which is expected in March, will include a maximum contaminant level goal (which is unenforceable) and an enforceable standard, which may be an MCL or a required treatment technique. In the event the US EPA adopts an MCL for PFOA or PFOS that is lower than the standard adopted by New Jersey, the US EPA MCL will apply (as would any treatment technique that it may require). US EPA anticipates finalizing the drinking water regulation by year-end.
Groundwater, Surface Water and Soil Standards
In 2018 and 2020, in connection with the adoption of MCLs for these constituents, the Department adopted ground water quality standards applicable to Class II-A ground waters (i.e., ground water designated for use as drinking water). The current ground water quality standards are the same as the MCLs–14 ppt for PFOA and 13 ppt for each of PFOS and PFNA. These ground water quality standards are used for site remediation activities and regulating discharges to ground water (e.g., New Jersey Pollutant Discharge Elimination System (NJPDES) permitting). To the extent the MCL for these compounds may be lowered as a result of US EPA anticipated rulemaking in 2023 or thereafter, these ground water quality standards may be adjusted by the NJDEP.
In addition, the Department is currently in the process of developing Surface Water Quality Standards for PFOA, PFAS, and PFNA. Similar to the ground water quality standards, these standards will be used for site remediation activities and regulating discharges to surface water, among other uses.
For the soils side, on October 17, 2022 the Department announced interim soil remediation standards for PFNA, PFOA, PFOS, and hexafluoropropylene oxide dimer acid and its ammonium salt (otherwise known as GenX). The interim standards apply to (i) the ingestion-dermal exposure pathway (for residential and nonresidential, respectively as PFNA 47 ppb and 670 ppb; PFOA 130 ppb and 1,800 ppb; PFOS 110 ppb and 1,600 ppb; and GenX 230 ppb and 3,900 ppb), (ii) the soil leachate remediation standard for migration to ground water exposure pathway (PFNA 0.26 ppb; PFOA 0.28 ppb; and PFOS 0.26 ppb) and (iii) the migration to ground water exposure pathway (site-specific and calculated using the synthetic precipitation leaching procedure (SPLP) and the Department’s PFAS SPLP calculator).
The Department indicates that it is working on establishing final soil remediation standards. The final standards could be available in 2023, however, it is not uncommon for there to be a delay between the issuance of interim standards, which will continue to apply, and the adoption of final ones.
In addition, PFNA, PFOA and PFOS have been identified as contaminants of emerging concerning (CECs) by the Department. As such, NJDEP guidance instructs that if a CEC is identified as a new discharge at a site undergoing remediation, the DEP Hotline or WARN NJDEP App shall be used to report the discharge. The new incident may either be merged into the existing case and the remediation completed under the existing timeframes, or the incident may be assigned a new case number (LSR Activity number) with a new set of remediation timeframes.
If the existing case is close to completion where an Entire Site Response Action Outcome (RAO-E) is being pursued, the Department will issue the applicable Area of Concern Response Action Outcome(s) (RAO-A) for all non-CEC AOCs, while the remediation of the CEC case continues. The requirement for submission of an RAO-E will be deferred to the timeframes established for the CEC case.
Where the site remedy is already completed, and previously relied on a remediation approach that includes the use of institutional controls such as ground water classification exception areas or deed notices, biennial review of those remedies require a written CEC evaluation to confirm the protectiveness of the previously selected remedy. The results of those evaluations could lead NJDEP to declare a case reopened to address the CECs. Lots of legal issues here but definitely an issue to watch.
PFAS Discharge Permitting
As mentioned above, in connection with the adoption of GWQS, and in accordance with the NJPDES rules at N.J.A.C. 7:14A, the Department added PFNA, PFOA, and PFOS to the Permit Application Testing Requirements. NJPDES discharge to ground water (DGW) permits authorize facilities to discharge treated industrial or domestic wastewater to ground waters of the state as part of that facility’s wastewater operations. In conjunction with the adoption of the amendments to the GWQS in 2020, the Department adopted an amendment to N.J.A.C. 7:14A that requires analysis for PFNA, PFOA, and PFOS to be included in the application for a DGW permit and the Department has modified DGW permits to include a requirement to monitor for PFOA, PFOS and PFNA.
The Department has not adopted any rules that address PFAS in NJPDES discharge to surface water (DSW) permits. However, the Department is undertaking an effort to identify and reduce the source of PFAS to surface waters. In 2021, the Department began issuing surveys to Category B permittees (i.e., industrial dischargers to surface water), Category L permittees (i.e., industrial dischargers to sanitary sewers) and certain wastewater treatment plants (WWTPs) to gather information regarding potential sources of PFAS in industrial wastewater. Based on the results of those surveys, the Department sent a series of Requests for Information to certain permittees requiring them to test their effluent for 12 to 15 PFAS compounds, including GenX, and submit the data to the Department. The results are available on the NJDEP’s Division of Water Quality’s webpage. The GenX data is due to the Department on February 3, 2023.
The Department’s data collection efforts are expected to continue in 2023. On January 17, 2023, NJDEP Commissioner LaTourette signed Administrative Order 2023-01 (the Order). The Order states that the Department is and has been seeking PFAS data from WWTPs, “including, but not limited to, effluent quality from [industrial dischargers], influent and effluent quality in the WWTP, influent and effluent quality at different points of the treatment process; sludge quality of the WWTP, and other data points collected throughout the system.” The Order seeks to encourage WWTPs to cooperate and share data and information with the Department by assuring the owners and operators of WWTPs that “the Department will not take an enforcement action for an unpermitted discharge against [WWTPs] based upon PFAS data submitted to the Department solely pursuant to this Order.” The Order is retroactive to January 1, 2021.
Listing of PFNA, PFOA and PFOS as Hazardous Substances
The Department has also added PFNA, PFOA and PFOS to the list of hazardous substances at N.J.A.C. 7:1E. This action will impose upon all responsible parties, regardless of the environmental statute they are liable under, the obligation to identify and remediate PFNA, PFOA and PFOS discharges. It will also permit the Department to initiate cost recovery and damages actions against the responsible party or parties. In addition, the listing of these compounds requires owners and operators of industrial establishments subject to the Industrial Site Recovery Act (ISRA) to remediate these substances prior to the transfer of the establishment to a new owner or operator.
Proposed Legislation
In February and May 2022, two bills were introduced in the New Jersey Senate (S402, S2712) and the New Jersey Assembly (A2372, A4125) addressing firefighting foams that contain PFAS. The first bill (S402/A2372) would prohibit the use of firefighting foams containing intentionally added PFAS for training purposes, and testing purposes unless certain containment, treatment and disposal measures are implemented. Identical versions of these bills had been introduced in January 2020 and November 2019. The May 2022 proposed bills were referred to the Assembly Environment and Solid Waste Committee and the Senate Environment and Energy Committee, respectively.
In May 2022, another set of bills were introduced in both houses that would prohibit the sale, manufacture or distribution for sale or use in the State of any class B firefighting foam containing intentionally added PFAS. On December 15, 2022, the Senate Environment and Energy Committee reported favorably on the bill, which is now pending a second reading in the Senate. In the Assembly, the A4125 was referred to the Assembly Environment and Solid Waste Committee, which has not yet reported on the bill.
On October 3, 2022, a new comprehensive package of bills was introduced in the State Senate (S3176 – S3180) and State Assembly (A4758 – A4762) addressing the presence of PFAS in New Jersey. The proposed bills broadly define PFAS to include “any member of the class of fluorinates organic chemicals containing at least one fully fluorinates carbon atom,” which include over 12,000 different types of PFAS and would go well beyond those presently targeted by NJDEP.
One proposed bill (S3176/A4760) would require the Department, in consultation with the Drinking Water Quality Institute, to study the feasibility of regulating PFAS in drinking water as a class, or in subclasses, rather than regulating each individual substance, and to assess available treatment technologies that remove or reduce PFAS in drinking water. Pennsylvania undertook a similar study that was completed in January 2021 by the Drexel PFAS Advisory Group (DPAG)—a multidisciplinary team of experts in toxicology, epidemiology, and drinking water standards and risk assessment. The DPAG “determined that currently available scientific evidence does not appear to support a decision to use a cumulative or summative approach for regulating PFAS” because “it could not be assumed that all PFAS have shared hazard traits and target the same health endpoints[.]” 53 Pa.B. 333 (Jan. 14, 2023). Rather, the DPAG recommended that each PFAS compound be reviewed and MCLs determined individually. In the Assembly, A4760 has been referred to the Assembly Environment and Solid Waste Committee. In the Senate, S3176 was referred to the Senate Environmental and Energy Committee, which favorably reported on the bill, and then the bill was referred to the Senate Budget and Appropriations Committee.
The second proposed bill (S3177/A4758) would require manufacturers of products for sale in the State that contain intentionally added PFAS to submit certain information to the Department concerning the product and the PFAS added to it, as well as pay a fee to the Department. If a manufacturer does not submit the required information and fee, the proposed bill would prohibit the sale of the product in the State. Further, regardless of whether the above notice was given to the Department, beginning two years from adoption, the bill would prohibit the sale or distribution in the State of any cosmetic product, carpet or fabric treatment or food packaging that contains intentionally added PFAS. The proposed bill also sets forth labeling requirements for any cookware that contains intentionally added PFAS, and would forbid the sale of any cookware containing intentionally added PFAS if the labeling requirements are not met. Finally, the proposed bill would require the Department to implement a source reduction program to reduce the presence of PFAS in the environment and conduct PFAS-related research and monitoring throughout the State. The Assembly and Senate referred the proposed bills to the Assembly Environment and Solid Waste Committee and the Senate Environment and Energy Committee, respectively.
The third proposed bill (S3178/A4761) would require the Department to conduct an annual assessment of (i) unregulated PFAS to determine whether an MCL or other drinking water standard should be established; and (ii) whether current and proposed PFAS MCLs adequately protect the health of children. The Assembly and Senate referred the proposed bills to the Assembly Environment and Solid Waste Committee and the Senate Environment and Energy Committee, respectively.
The fourth proposed bill (S3179/A4759) would require any PWS that exceeds a PFAS MCL to notify its customers by mail of the exceedance within 10 calendar days after confirming the exceedance and having the notice approved by the Department. These proposed notification requirements differ slightly from the Tier 2 notification requirements for MCL exceedances imposed by the Safe Drinking Water Act. The proposed bill would also require monthly written notifications to all customers until there is no longer a PFAS MCL exceedance. In the Assembly, A4759 has been referred to the Assembly Environment and Solid Waste Committee. In the Senate, S3179 was referred to the Senate Environmental and Energy Committee, which favorably reported on the bill, and then the bill was referred to the Senate Budget and Appropriations Committee on January 30, 2023.
Finally, the fifth proposed bill (S3180/A4762) required PWS to submit a plan to the Department that identifies an alternative water supply to supply water to the customers of the system when there is an exceedance of a PFAS MCL and to implement that plan when there is an exceedance. The Assembly and Senate referred the proposed bills to the Assembly Environment and Solid Waste Committee and the Senate Environment and Energy Committee, respectively.
As other states propose and adopt similar legislation, and scrutiny of PFAS use, handling and disposal continues, there’s sure to be movement on one or more of these bills in 2023. We will continue to track the progress of these bills, proposed revisions to them, and any new bills in the coming year.
Take Aways
As the US EPA anticipates issuing a proposed National Primary Drinking Water Rule for PFOA and PFOS in March and finalizing the rule by year-end, it is likely that New Jersey’s MCLs for those substances will change, along with corresponding changes to the Department’s related GWQS and NJPDES DGW permitting process. The Department will also continue to collect data and study the likely sources of PFAS discharges to the environment and explore other avenues to reduce those sources. Finally, we can expect legislative efforts to continue in 2023 as these bills progress (or not) and are revised through the adoption process and new bills are introduced.
Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you. For more information or if you have any questions about this post, please contact Lindsay Brown, Lori Mills, Phil Cha, Brad A. Molotsky, Alice Shanahan, Seth Cooley, Alyson Lotman, Kelly Bonner, Sharon Caffrey or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.