January 31, 2023

Volume XIII, Number 31

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New Jersey PFAS Soil Standards Set

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)

PFNA

0.047

0.67

AOC/Site Specific

0.26

PFOA

0.13

1.8

AOC/Site Specific

0.28

PFOS

0.11

1.6

AOC/Site Specific

0.26

GenX

0.23

3.9

N/A

N/A

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.

©2023 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume XII, Number 298
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About this Author

John Gardella Environmental Law Attorney CMBG3 Law Firm
Shareholder

John Gardella is a Shareholder at CMBG3 Law in Boston, a law firm specializing in the regulatory, litigation, and compliance aspects of numerous environmental and toxic torts issues. He is a member of the firm’s PFAS Team, which counsels clients on PFAS related issues ranging from state violations to remediation litigation. Mr. Gardella has over 15 years of experience litigating environmental and toxic torts matters, including asbestos, PFAS, benzene, lead paint, mold, talc, hazardous waste and pollution matters. He is a successful trial attorney with over 75 verdicts to...

617-279-8225
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