What You Need to Know:
- On October 17, 2022, NJDEP published a public notice establishing interim soil remediation standards for PFNA, PFOA, PFOS and GenX.
- The levels are effective immediately and apply to sites without a site-wide response action outcome.
- NJDEP previously adopted rules pursuant to New Jersey Safe Drinking Water Act to establish maximum contaminant levels for PFOA and PFOS.
NJDEP’s Public Notice provides that “[t]he Department will replace the interim remediation standards for soil and soil leachate with promulgated standards as soon as reasonably possible through rulemaking, in accordance with the Administrative Procedure Act, N.J.S.A. 52: 14B-1 et seq.” It is not known how quickly NJDEP will proceed to formal rulemaking, and the PFAS Interim SRS may be subject to challenge in the intervening timeframe.
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By way of background, in 2018, New Jersey became the first state to regulate PFNA, when NJDEP adopted a groundwater standard and set a maximum contaminant level (MCL) in drinking water at 13 parts per trillion. In 2020, NJDEP adopted groundwater standards and MCLs for PFOS and PFOA at 13 and 14 parts per trillion, respectively. Given the Interim SRS publication, potential purchasers of real estate in New Jersey should now consider including analysis of PFNA, PFOA, PFOS and GenX in Preliminary Assessments performed during due diligence investigations.
At the federal level, the U.S. Environmental Protection Agency (USEPA) recently proposed designating PFOS and PFOA as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Among other things, CERCLA provides the federal government with statutory authority to investigate, monitor and respond to hazardous substances that have been released into the environment, or are under threat of release, as well as an enforcement mechanism to hold parties responsible for the cleanup costs if found liable for the release of hazardous substances. Assuming final adoption of these PFAS compounds as hazardous substances under CERCLA, an evaluation of PFAS (specifically, PFOA and PFOS, at a minimum), should be part of the Phase I environmental site assessement conducted prior to the closure of a real estate transaction.
