The New Jersey Department of Environmental Protection (NJDEP) recently amended its rules under the New Jersey Safe Drinking Water Act (NJ SDWA) to address per- and poly-fluoroalkyl substances (PFAS). NJDEP adopted the amendments on March 31, 2020, and published them in the New Jersey Register on June 1, 2020. 52 N.J.R. 1165(b). The United States Environmental Protection Agency (EPA) began the process for establishing drinking water standards for certain PFAS compounds in February 2020; however, with these amendments, New Jersey now has some of the most stringent PFAS drinking water requirements in the United States.
NJDEP’s amendments establish health-based drinking water standards—known as Maximum Contaminant Levels (MCLs)—for two chemical compounds in the PFAS family. In particular, the amendments establish a 14 parts per trillion (ppt) MCL for perfluorooctanoic acid (PFOA) and a 13 ppt MCL for perfluorooctane sulfonate (PFOS). N.J.A.C. 7:10-5.2(a)(5)(ii)–(iii). These are the same substances EPA addressed in its February 2020 regulatory determination. In addition to PFOA and PFOS, NJDEP also previously adopted a 13 ppt MCL for perfluorononanoic acid (PFNA) in 2018. Id. at 7:10-5.2(a)(5)(i). These MCLs are far below EPA’s current health advisory levels (HALs) of 70 ppt.
Further, the amendments require public water systems to begin monitoring for PFOA and PFOS in the first quarter of 2021. Id. at 7:10-5.2(a)(5)(ii)–(iii). If a system’s drinking water contains PFOA or PFOS in concentrations exceeding their respective MCLs, the new rules require providers to take necessary protective measures, which may include adding treatment systems or removing impacted wells from service.
Beginning December 1, 2021, NJDEP’s new rules also require private well owners to monitor for PFOA, PFOS, and PFNA pursuant to the New Jersey Private Well Testing Act. See N.J.A.C. 7:9E-2.1(a)(12). This will require testing during private residence real estate transactions, as well as periodic testing at rental properties.
In addition to establishing MCLs and requiring PFAS monitoring, NJDEP added PFOA, PFOS, and PFNA to the New Jersey List of Hazardous Substances. N.J.A.C. 7:1E. Given the widespread use of these compounds in numerous manufacturing sectors, these additions may have significant impacts on day-to-day operations, as well as the due diligence process during real estate transactions.
For more information on NJDEP’s amendments, please contact Andrew Perel, Brooks Smith, or Buck Dixon.