On April 1, 2019, the New Jersey Department of Environmental Protection (“NJDEP”) proposed drinking water standards (known as maximum contaminant levels, or MCLs) for two PFAS – 14 parts per trillion (“ppt”) for PFOA and 13 ppt for PFOS. If the rule is promulgated, it will set the limit for the amount of each substance that is permitted in drinking water systems and would be the most stringent in the nation for these compounds (New York is on track to establish 10 ppt limits for the 2 compounds). The effect of the rule could be far-reaching, since as many as 40 public water systems in New Jersey have already detected levels of these compounds above the proposed standards. As such, the water systems will be required to actively remediate the contaminated wells or take them out of service. The proposal will also require private potable well owners to sample for PFAS in real estate transactions, and will require landlords of rental properties to periodically sample potable wells after an 18-month phase-in period.
This rule is the next iteration of New Jersey’s recent and rapid regulation of the family of chemicals known as perfluoroalkyl and polyfluoroalkyl substances (“PFAS”). PFAS has been found to be prevalent in drinking water supplies around the United States due to their high solubility, mobility and persistence in water. As we recently reported, NJDEP promulgated a groundwater remediation standard for another PFAS compound, PFNA, of 13 ppt and recently established interim groundwater remediation standards for PFOA and PFOS of 10 ppt, pending promulgation of formal standards. In addition to proposing MCLs and groundwater remediation standards, NJDEP is also vigorously pursuing enforcement actions against the alleged manufacturers, dischargers and users of these compounds by recently filing a Spill Act Directive and Natural Resource Damage actions against these entities.
The publication of the MCL rule proposal in starts the 60-day comment period, including a May 15th public hearing.