New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

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...

Recent CERCLA Decision Allows Divisibility of Comingled Groundwater Plume

Recent CERCLA Decision Allows Divisibility of Comingled Groundwater Plume

In Burlington Northern, when the United States Supreme Court decided that joint and several liability under section 107 of CERCLA could be ameliorated in cases where the harm was theoretically capable of apportionment, potentially responsible parties (PRPs) hailed the decision outlining the test for divisibility as a great breakthrough. In practice, however, the availability of the divisibility defense that PRPs hoped would flow from the Burlington Northern decision has been limited, particularly in complex, comingled groundwater plume cases. In March 2020, however, the District Court in Von Duprin LLC v. Moran Electric Service, Inc. et al. (United States District Court, Southern District of Indiana – Indianapolis Division. Case No. 1:16-cv-01942-TWP-DML) issued the first CERCLA decision finding that a comingled groundwater plume was capable of apportionment because there was a reasonable basis to divide the harm. The District Court relied on the findings of one of the technical experts, who analyzed substantial groundwater monitoring results from four different source areas and demonstrated that the magnitude of the concentrations and chemical characteristics of the Chlorinated Volatile Organic Compounds (CVOCs) were different in the four source areas. The Von Duprin case involved the release of hazardous substances at four properties located in Indianapolis,...

New Jersey Appellate Division Clarifies Spill Fund Lien Law &  Procedure

New Jersey Appellate Division Clarifies Spill Fund Lien Law & Procedure

In an unpublished opinion captioned In Re Spill Fund Lien, DJ No. 129570-02; 954 Route 202, the Appellate Division affirmed the final agency decision of the Spill Compensation Fund (Fund) holding that the lien filed against the property and revenues to recover remediation costs that the Fund expended in cleanup was appropriate under the New Jersey Spill Act (Spill Act). The property owner, Branch 2002 LLC (Branch), had purchased a gas station from a previous owner who was ordered by the New Jersey Department of Environmental Protection (NJDEP) to conduct a remedial investigation and remove or treat contaminated soil from leaking underground storage tanks at the property. Ultimately, the previous owner did not conduct the required remediation, so the NJDEP oversaw remediation of the property using Fund resources. The property was later sold to Branch, with the prior owner’s insurance company indemnifying all subsequent owners for any liability arising out of the prior owner’s discharge. The Fund Administrator filed the initial lien on the property for expenditures and commitments incurred by the Fund in 2002, and then later amended this lien in 2015 to reflect additional costs expended and requested that the Superior Court Clerk enter the addresses of both...