On June 1, 2020, the New Jersey Department of Environmental Protection (DEP) officially published health-based drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). These chemicals have received serious attention from the environmental community in the last several years due to increasing science that has confirmed the harmful impact of PFOA/PFOS on human health and the environment.
These new more stringent rules, published in the New Jersey Register, set maximum contaminant levels (MCLs) at: 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. The DEP also added PFOA and PFOS to the state’s list of hazardous substances. Site remediation activities and regulated discharges to groundwater of PFOA and PFOS will now have to comply with these new standards. These new formal standards establish a regulatory framework that will provide consistency in remediation activities statewide.
It is important to note that PFOA and PFOS are just two of potentially thousands of per- and polyfluoroalkyl substances (or PFAS). To date Vermont and New Hampshire are the only other two states to set MCLs for PFAS. New York is working on similar standards. New Jersey issued a standard of 13 parts per trillion for perfluorononanoic acid (PFNA) in 2018. The federal government has not yet established MCLs for PFAS. While there are treatment technologies in existence that effectively remove PFAS from drinking water, there are concerns with how effective these technologies are in remediation scenarios. The rules will require that all water systems in New Jersey begin monitoring for PFOA and PFOS within the first quarter of 2021. As many as 1,000 water systems already report levels of PFOA and PFOS in the state.
Another major provision of these new rules requires private well owners to test for PFOA, PFOS, and PFNA, and mandates testing during real estate transactions for private residences and periodic testing for rental properties. It is unclear whether similar standards will apply to commercial and/or industrial real estate transactions.
New Jersey sites currently being remediated will now be required to determine whether PFOA, PFOS, and PFNA have been discharged at the site and whether the groundwater at these remediation sites has been impacted. If testing confirms a past discharge, the site’s groundwater will now require remediation to the new standards outlined herein.
These new rules will have major implications for all corporate and individual citizens of New Jersey. Costs of necessary improvements to private and public water systems to address these PFAS will most likely be passed down to the consumer. Remediation sites in New Jersey will also be required to conduct mandatory testing for these chemicals if it has been determined that these contaminants have been discharged at a site and have impacted the groundwater. Many developers, at the advice of their technical consultants, have been testing for PFAS for years understanding the imminence of PFAS regulations. Similarly, some commercial and industrial real estate transactions have already been accounting for past and future remediation liabilities and responsibilities of PFAS by contracting remediation responsibilities and costs of these chemicals to either the buyer or seller, while simultaneously seeking insurance coverage for these liabilities. These new formal standards establish a regulatory framework that will require consistency in remediation activities statewide having major implications for all private and public water systems and real estate transactions in the state.