NJDEP Issues Statewide PFAS Directive

On March 25, 2019, The New Jersey Department of Environmental Protection (NJDEP) issued a Statewide PFAS Directive, Information Request, and Notice to Insurers (Directive) to a collection of Respondents including Solvay, DuPont, DowDuPont, Chemours and 3M. The Directive notifies these companies that NJDEP believes them to be responsible for environmental contamination caused by poly- and perfluoroalkyl substances (PFAS), including perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA), and perfluorooctanesulfonic acid (PFOS), and their replacement compounds including GenX.

NJDEP asserts that the respondents have understood the toxic characteristics of PFAS for decades, but that regulatory agencies are only now coming to understand the true nature and dangers of these contaminants. The state agency has spent and continues to spend significant resource to study, assess, and remediate PFAS in New Jersey's environment and plans to recover these costs from the Respondents.

The Directive states that New Jersey is moving forward "in the absence of action at the federal level" to protect its citizens. The state is pursuing Maximum Contaminant Levels (MCLs), Groundwater Quality Standards (GWQS), and proceeding to add these chemicals to the NJDEP's List of Hazardous Substances. The NJDEP has established a specific GWQS of 10ppt and an MCL of 13 ppt for PFNA and added it to the NJDEP List of Hazardous Substances. More recently, NJDEP established interim Specific Groundwater Quality Criteria for PFOA and PFOS of 10 ppt. The department anticipates publishing a notice of proposed rule amendments in the NJ Register on April 1, 2019 that would establish an MCL for PFOA of 14 ppt and for PFOS of 13 ppt. The amendments would also establish GQCS for PFOA of 14 ppt and PFOS of 13 ppt as well as add PFOA and PFOS to the list of Hazardous Substances.

Solvay is required to pay $3,105,084.91 to NJDEP to reimburse for past costs. All Respondents are to meet collectively with the department to estimate future costs and establish funding sources for investigation, testing, treatment, cleanup, and removal of PFNA, PFOA, and PFOS from New Jersey's environment.

The Directive is not  a formal enforcement order or legal determination that a violation has occurred. As such, the Directive may not be appealed or contested.