PFAS: Still Only an Emerging Contaminant? In New Jersey, It’s Here

In the final week of March 2019, the New Jersey Department of Environmental Protection (NJDEP) took two unusually broad actions regarding contamination caused by poly- and perfluoroalkyl substances (PFAS).

On March 25, 2019, NJDEP issued a Statewide PFAS Directive, Information Request and Notice to Insurers (Directive) to eight chemical companies (the Respondents). NJDEP says that PFAS compounds are "ubiquitous in New Jersey" and calls them "a statewide public nuisance" because they resist degradation and bioaccumulate.

The Directive demands that the Respondents:

• provide NJDEP, within 21 days of receiving the Directive, information on:

  (A) each Respondent's manufacture, supply, transportation, storage, use, treatment, disposal and discharge of three specific PFAS compounds: perfluorononanoic acid (PFNA); perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS)

  (B) the ability of the Respondents to pay for or perform the cleanup and removal of PFNA, PFOA, and PFOS

  (C) every "change of ownership" as defined by the New Jersey Industrial Site Recovery Act involving their "current or former sites in New Jersey"

• identify, within 21 days of receiving the Directive, the nature, extent, source and location of discharges of PFNA, PFOA, PFOS and any "GenX compounds" -- "i.e., those short-chain PFAS chemicals used in any manufacturing process as a replacement for PFNA, PFOA and/or PFOS"
• meet collectively with NJDEP, within 30 days of receiving the Directive, to discuss a good faith estimate for future costs to investigate, test, treat, cleanup, and remove PFNA, PFOA and PFOS from the environment
• notify their insurers that NJDEP may bring its claims for costs of cleanup or damages directly against an insurer or anyone else providing evidence of financial responsibility

The Directive states that it "is not a formal enforcement order, a final agency action or a final legal determination that a violation has occurred." Nevertheless, non-compliance with the Directive, NJDEP notes, may lead NJDEP to (i) seek damages equal to three times the cost of arranging for cleanup and removal of the discharge; (ii) use its authority under the New Jersey Spill Compensation and Control Act (Spill Act) to place a lien on a Respondent's real and personal property; and (iii) impose penalties.

On March 27, 2019, NJDEP filed four civil actions in four different counties -- Salem, Gloucester, Middlesex and Passaic -- seeking in each case from various Respondents reimbursement for costs NJDEP incurred to respond to PFAS contamination, declarations of liability for future cleanup costs, payments for natural resource damages, and restoration of natural resources.

Given such claims for relief, these cases may seem to make conventional claims about an unconventional contaminant. They do not. One Respondent is not alleged to have owned or operated any facility in New Jersey, but in both the Directive and two of its four complaints NJDEP asserts that this Respondent is liable under the Spill Act as a person "in any way responsible" for PFAS contamination. Additionally, NJDEP would use New Jersey's statutory and common law of products liability – specifically, the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 et seq., and allegations of strict liability for defective design and failure to warn – against this Respondent. NJDEP names this particular Respondent in only the cases it filed on March 27, 2019 in Salem and Middlesex counties.

PFOA and PFOS were not listed as a hazardous substances by NJDEP when these four cases were filed. It was only on April 1, 2019 that NJDEP proposed such a listing. The April 1, 2019 notice of that proposal also proposed to set a maximum contaminant level (MCL) of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS under the New Jersey Safe Drinking Water Act. NJDEP also proposes to amend its Private Well Testing Act rules to require testing for PFNA, PFOA, and PFOS.