New Jersey Approves PFAS Drinking MCLs, Now What?

Author: Doug Hunter

Published in the May 2020 Focus on the Environment Newsletter

Per-and polyfluoroalkyl substances (PFAS) compounds are man-made chemicals that have been used in numerous industrial processes and many consumer products such as cookware, stain resistant carpets, grease resistant food packaging, raincoats, makeup, and many others. PFAS compounds are persistent in the environment and have been shown to accumulate in people and animal tissues. They have been shown to induce tumors, disrupt hormones, and cause damage to the immune system and organs like kidneys and the liver. They are widespread in the environment, and have been found throughout the world in soil, groundwater, surface water and air.

In 2016, EPA established health advisory levels (HALs) for PFOA and PFOS, two of the most prevalent PFAS compounds, at 70 parts per trillion (ppt).  Although the HALs are intended to offer a margin of protection from adverse health effects from exposure to PFOA and PFOS in drinking water, they are non-regulatory and non-enforceable.   In late 2019, the EPA finally signaled their intention to establish MCLs for PFOS and PFOA in drinking water, beginning a process that will likely take multiple years before a federal drinking water standard is finalized.  With the federal government lagging-behind in the establishment of regulated standards, states are left alone to develop their own policies to regulate these chemicals, a process leaving them open to challenges, legal and otherwise, regarding their authority to establish standards and require corrective action.

New Hampshire was the first state to establish MCLs for PFAS in drinking water and on September 20, 2019 when the standards became enforceable, the state was promptly sued by 3M and others to prevent the standards from taking effect. In December 2019, the Merrimack County Superior Court issued a preliminary injunction barring enforcement of the rules due to the alleged failure of the New Hampshire Department of Environmental Services to appropriately consider the costs and benefits of the rules. With it bogged down in the courts, it is uncertain if and/or when New Hampshire’s standards will take effect.

As with drinking water MCLs, the lack of federally regulated cleanup standards has left states with little leverage to force responsible parties to remediate PFAS contaminated sites.  Because PFAS chemicals were a key ingredient in firefighting foams used widely by the military during training and emergencies, the federal government is responsible for large number of PFAS contaminated sites across the country.  The Pentagon estimates environmental and legal liabilities in the billions of dollars to investigate and remediate PFAS releases at hundreds of military bases.  To date, the US Department of Defense (DoD) has proactively initiated short-term actions (e.g. provided bottled water, point of use filters) and long-term actions (e.g. municipal connections, filtration systems) such that no one is drinking water above the HAL of 70 ppt at sites where the DoD is the known source of PFOA and PFOS.   However, for those states with either proposed MCLs and/or Health Based Guidance Levels for PFOA and PFOS at concentrations less than the 70 ppt HAL, there exists a gap between what the DoD will provide treatment for versus what the state contends is safe to drink.  As more and more states attempt to force the military to investigate and clean up PFAS related contamination, the DoD has begun pushing back, contending that PFAS contamination falls under Federal cleanup law, in this case CERCLA, and challenging the authority of states to require corrective action.

In April of this year, New Jersey proposed MCLs for PFOA and PFOS at 14 ppt and 13 ppt, respectively, as well as adding both to the List of Hazardous Substances.  The proposed MCLs are considerably stricter that the EPA HAL of 70 ppt and could set the standard for other states looking to emulate New Jersey’s proactive stance.  As with New Hampshire, New Jersey likely will face legal challenges after the rules become final; however, the robust process New Jersey used to develop their MCLs potentially places them on firmer footing.

The NJDEP employs a panel of the state’s leading water experts under its Drinking Water Quality Institute (Institute) for the sole purpose of developing MCLs for hazardous contaminants in drinking water.  In the case of PFOA and PFOS, three subcommittees were established within the Institute to address the essential considerations for development of MCLs as outlined in the New Jersey Safe Water Drinking Act.  The Health Effects Subcommittee was responsible for recommending health-based levels, the Testing Subcommittee was responsible for revaluating and recommending appropriate laboratory analytical methods and the Treatment Subcommittee was responsible for evaluating best available treatment technologies.  Recommendations from each of the three subcommittees formed the basis for the recommended PFOA and PFOA MCLs.  Using this approach, the Institute ensures that the recommended MCLs are protective of human health, can be reliably quantified within acceptable limits of uncertainty and are attainable using current available treatment technologies.

The road that individual states must take to establish and implement regulated standards for PFAS is mined with challenges.  So why should states like new Jersey go through the time, effort and expense knowing that they will likely be sued to prevent the standards from taking effect?  With New Jersey, the answer is simple.  As one of the most densely populated states in the country and one of the most industrialized, New Jersey has a particularly high occurrence of PFAS contamination in drinking water.  Consequently, New Jersey took a serious and thorough approach in developing their proposed standards.  As to whether their proposed standards can weather the impending legal challenges, stay tuned, NJDEP expects a final decision on the standards in the next few months.

Doug is a licensed professional geologist in Indiana and North Carolina. As a consulting hydrogeologist, Doug specializes in aquifer characterization and yield determinations, well and wellfield performance evaluations, and the design and testing of both vertical well and horizontal collector well systems. Additional areas of expertise include environmental assessment and remedial system evaluation and design. He has worked throughout the United States on a wide variety of groundwater supply and environmental contamination related projects. Doug’s wide-ranging expertise and extensive experience in the groundwater supply industry add another dimension to Cox-Colvin’s technical staff and provide additional opportunity to support our clients in meeting their needs and reaching their business goals.