Key Contacts
New Jersey’s Focus on PFAS Regulations and Enforcement Initiatives are Expected to Continue in 2024
New Jersey advanced significant regulatory, litigation, and legislative initiatives applicable to per- and polyfluoroalkyl substances (PFAS) in 2023 that will likely continue into 2024 and beyond. The main initiatives are addressed below.
New Jersey Legislation
Last year we reported on six proposed bills (and related Assembly bills) that were part of a comprehensive PFAS legislative package designed to create an extensive regulatory PFAS program in New Jersey. One of these, S-2712/A-4125, the Assembly and the Senate both unanimously passed in December 2023. In 2024, Governor Phil Murphy will consider whether to sign the bill into law. S-2712/A-4125 would prohibit the sale, manufacture, distribution, or use of Class B fire-fighting foam containing intentionally added PFAS, effective two years after the bill is signed into law. Certain industrial facilities with specific safety requirements would have a four-year transition period and oil refineries and petroleum terminals would have an eight-year transition period. The bill would also allocate $250,000 to the New Jersey Department of Environmental Protection (NJDEP) to create a grant program to help small fire departments pay for removing any old foam stocks. A violation would be considered an unlawful practice under the state’s Consumer Fraud Act and would subject the violator to monetary penalties, including punitive damages and treble costs.
On January 8, 2024, the Assembly and Senate both unanimously passed S-3176/A-4760, which would require NJDEP, together with the Drinking Water Quality Institute, to conduct a study to determine whether maximum containment levels (MCLs) for PFAS in drinking water should be established for the entire class of PFAS or for individual subclasses rather than individual PFAS, and to study treatment technologies for PFAS in water and wastewater.
S-3179/A-4759 passed unanimously in the Assembly on June 30, 2023, and was referred to the Senate Budget and Appropriations Committee on November 27, 2023. S-3179/A-4759 would establish a ten-day written customer notification requirement for any public water system (PWS) that exceeds any PFAS MCLs and for periodic notice updating the status of any remediation. Where customers are landlords, the landlords would be subject to a three-day written notice to every tenant who has a lease agreement with the landlord and is served by the PWS (unless the tenant is a direct customer of the PWS) and post the notice in a conspicuous location near the entrance of the rental premises (except for certain single-family residences).
The remaining three bills are still pending before the Senate Environment and Energy Committee. S-3177/ A-4758 would, among other things, ban PFAS-containing cosmetics, carpet treatment products, and food packaging, and would require PFAS-containing cookware to be appropriately labeled. S-3178/A-4761 would require NJDEP to assess current MCLs in place to ensure they adequately protect children, and to consider whether MCLs should be implemented for presently unregulated PFAS compounds. Finally, S-3180/A-4762 would mandate that water suppliers or purveyors proactively designate alternate water sources in the event they discover PFAS exceedances in current sources.
New Jersey PFAS Ground Water Quality Standards
New Jersey’s MCLs for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) will likely change in 2024. New Jersey has been at the forefront of regulating PFAS, being one of the first states to propose and adopt regulations setting an MCL for perfluorononanoic acid (PFNA) (13 parts per trillion (ppt)) in 2018, followed closely by the adoption of MCLs for PFOA (14 ppt) and PFOS (13 ppt) in 2020. An MCL is an enforceable standard, defined as the maximum level allowed of a contaminant or mixture of contaminants in water that is delivered to any use of a public water system.
In March 2023, the Environmental Protection Agency (EPA) proposed regulations to establish new MCLs for six PFAS compounds: PFOA and PFOS, perfluorohexane sulfonic acid (PFHxS), hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salts (commonly known as GenX chemicals), PFNA, and perfluorobutane sulfonic acid (PFBS). For both PFOS and PFOA, the EPA proposed MCLs of 4 ppt. Public comment on the proposed regulation ended on May 30, 2023. The EPA has indicated on their website that a Final Rule may be implemented as soon as January 2024.
NJDEP automatically incorporates changes to the federal MCLs if they are lower than the standard adopted by New Jersey. N.J.A.C. 7:10-5.1. Once EPA finalizes the federal MCL and NJDEP incorporates those standards, it sets in motion a chain reaction requiring NJDEP to update several of its own standards. NJDEP will be required to update its Ground Water Quality Standards (GWQS) to mirror the new MCLs. N.J.A.C. 7:9C-1.7(c)3i. Similarly, once the GWQS are updated, they automatically become the groundwater remediation standards. N.J.A.C. 7:26D-2.2(a).
PFAS Sampling Requirements for NJPDES Permits
Last year we reported on the NJDEP’s efforts to identify and reduce sources of PFAS in industrial wastewater in New Jersey by issuing to certain NJPDES permittees a survey to gather information regarding potential sources of PFAS and operational processes. NJDEP also issued a follow up Request for Information to gather wastewater sampling data from certain surveyed permittees. Monitoring results are available on the NJDEP’s webpage, along with an FAQ document concerning the Requests for Information.
NJDEP’s investigation of PFAS compounds in the state remains in full swing. On January 17, 2023, NJDEP Commissioner Shawn LaTourette signed Administrative Order (AO) 2023-01 seeking to encourage Wastewater Treatment Plants (WWTPs) to cooperate and share data and information with the NJDEP by assuring the owners and operators of WWTPs that it would “not take an enforcement action for an unpermitted discharge against [WWTPs] based upon PFAS data submitted to [it] solely pursuant to this Order.” AO 2023-01 is retroactive to January 1, 2021 and shows a continued effort by NJDEP to identify and reduce sources of PFAS in 2024 and beyond.
New Jersey Litigation and Settlement Initiatives
On March 14, 2023, Commissioner LaTourette issued AO 2023-08 representing another step in NJDEP’s evolution of natural resource damages (NRD) enforcement. AO 2023-08 memorialized some of NJDEP’s policy determinations underlying its NRD enforcement efforts by outlining its expansive authority to pursue assessment and restoration of any “injured or altered natural resource, including those injured by any past, present, or future discharges of hazardous substances, contaminants, or other pollutants.”
AO 2023-08 seeks to improve NJDEP’s policies and procedures for voluntarily resolving potential NRD liabilities with responsible parties. AO 2023-08 also directed the Office of Natural Resource Restoration (ONRR) and the Contaminated Site Remediation and Redevelopment Program to establish protocols and procedures to encourage responsible parties to resolve potential NRD liability during the remediation process, which may include the identification of information necessary to initiate the collaborative process, guidelines for submittal of information to NJDEP, and the development of relevant forms to facilitate information sharing, such as new or amended site remediation forms. Notably, AO 2023-08 is intended to be prospective in nature and will not affect any ongoing collaborative processes, settlement discussions, or administrative or legal actions concerning alleged injuries to natural resources.
AO 2023-08 directed NJDEP to establish procedures that enhance public engagement in the planning, design, and implementation of natural resource restoration projects throughout the state. To aid in such engagement, AO 2023-08 created the Natural Resource Restoration Advisory Council (NRRAC) for the purpose of providing insight and feedback about potential natural resource restoration projects and assisting NJDEP in communicating restoration project objectives and outcomes to the public. NRRAC will be comprised of members of the public, NJDEP, the regulated community, and environmental advocacy groups. It is expected that members of NRRAC will be selected sometime in 2024. AO 2023-08 also requires ONRR to establish a public dashboard on the NJDEP website that identifies each restoration project administered by NJDEP, its status, funding source, and any other relevant information.
On August 7, 2023, NJDEP announced a proposed settlement with Solvay Specialty Polymers USA, LLC (Solvay) resolving its PFAS remediation and NRD claims for Solvay’s alleged discharges of PFAS during its operation of a manufacturing facility located in West Deptford, New Jersey. See NJDEP et al., v. Solvay Specialty Polymers USA, LLC, No. G-L-1239-20, Superior Court of Gloucester County. Touting the settlement as “[t]he first of its kind to address PFAS contamination in New Jersey” the proposed settlement obligates Solvay to provide financial commitments of nearly $393 million, including an NRD component of $75 million.
In announcing the proposed settlement, New Jersey made clear that it remains committed to pursuing future claims for PFAS impacts. As stated by Attorney General Platkin, “[t]oday we send a clear message to any corporation that exposes our New Jersey communities to PFAS toxins or injures our natural resources with any hazardous substance: you will face consequences for your actions. You have our promise.” Commissioner LaTourette reinforced this message promising that NJDEP “will continue to pursue PFAS manufacturers for the widespread harm their chemicals have caused across our state.”
Notably, the Solvay settlement included an NRD component, which NJDEP announced will be used for natural resource restoration projects “to be identified and pursued in close collaboration with the affected communities pursuant to AO 2023-08.”
New Jersey is also expanding its emerging contaminants enforcement initiatives beyond just PFAS to also include 1,4 dioxane. On March 23, 2023, NJDEP filed a complaint in state court to address 1,4-dioxane contamination across the state. The complaint names alleged manufacturers and distributors of 1,4-dioxane and seeks to require them to be responsible for the cleanup and removal of the chemical. The suit alleges both environmental and consumer fraud claims and seeks NRDs, punitive damages, and other damages and penalties. Like its initiatives relating to PFAS, NJDEP has made clear its intention to continue to focus on existing and new emerging contaminants, stating that NJDEP will “take every appropriate action to protect public health, safety, and the environment from 1,4-dioxane contamination.”
We expect that New Jersey will continue its efforts, which started in 2018, to address PFAS and other emerging contaminants through litigation and its NRD initiatives in 2024.
