Last year, we provided an update regarding Pennsylvania’s ground-breaking PFAS soil standards for remediation. Last week, the New Jersey Department of Environmental Protection (NJDEP) published interim soil remediation standards for four PFAS compounds: PFNA, PFOA, PFOS, and GenX. It is important to note that the New Jersey PFAS soil standards would not create liability standards, at least not explicitly. Instead, the standards aim to be guidelines by which site remediators can gauge PFAS removal steps in instances of soil pollution. Nevertheless, the steps by New Jersey represent another step forward in PFAS regulatory action that other states are exploring, but have yet to affirmatively propose standards at this time. As other states follow suit, though, it is likely that other states will begin setting PFAS soil standards that include both a remediatory guideline and liability purpose. Companies are well-advised to closely follow developments at the state level with respect to PFAS soil standards.
New Jersey PFAS Soil Standards
The NJDEP’s Interim soil remediation standards are:
|Interim SRS: Ingestion/Dermal Pathway – Residential (mg/kg)||Interim SRS: Ingestion/Dermal Pathway – Non-Residential (mg/kg)||Intermin SRS: Migration to Groundwater Pathway (mg/kg)||Interim Soil Leachate Remediation Standard: Migration to Groundwater Pathway (ug/L)|
The NJDEP indicated that the standards will be effective immediately. However, the NJDEP must still go through the final formal rulemaking process to make the standards fully enforceable under the law. It will be of interest to companies with presence in New Jersey to follow this topic to see if the interim standards are challenged in court. Nevertheless, the practical outcome is that all property acquisitions in New Jersey certainly must take into consideration soil testing for PFNA, PFOA, PFOS, and GenX during the due diligence phase of any acquisition.
Impact on New Jersey Businesses
As noted above, the PFAS soil standards do not create liability if soil is discovered to contain levels of PFAS above the noted limits. Instead, the regulations provide guidance to site remediators, to provide clarity as to the extent and scope of PFAS remediation necessary from contaminated sites. Nevertheless, companies in New Sersey are advised to use the limits in the regulations as baselines testing during the diligence phase of any property or corporate acquisition. It is critical to determine whether or not sites owned by the businesses or sites that companies may inadvertently be polluting with PFAS have elevated levels of PFAS such that future liability concerns may arise.
Businesses outside of New Jersey must be aware of the New Jersey regulations and closely follow legislation and regulatory action in discussion with respect to PFAS soil standards. While drinking water and wastewater have certainly received the most attention from a PFAS regulatory perspective, efforts are being made in several states to collect data with respect to PFAS soil contamination, with the long-term goal of enacting science based PFAS soil standards.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.
Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: John Gardella.