The New Jersey Department of Environmental Protection (NJDEP) has been taking small but consistent steps to regulate per- and polyfluoroalkyl substances (PFAS), starting with the development of maximum contaminant levels (MCL) proposals by the Drinking Water Quality Institute (DWQI). To date DWQI has developed proposed MCLs for perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The MCL for PFNA has already been promulgated. Promulgation of MCLs for PFOA and PFOS is pending. When an MCL is established, the NJDEP also promulgates ground water quality standards (GWQS). A GWQS for PFNA has already been published.
On March 13, 2019, the NJDEP announced that it has established new interim specific GWQS for PFOA and PFOS. These interim specific GWQS are effective immediately. Based on promulgation of these new GWQS, and to comply with the provisions of the Technical Requirements for Site Remediation (TRSR), the NJDEP requires persons responsible for conducting remediation to evaluate whether there is the potential that these compounds may have been manufactured, used, handled, stored, disposed or discharged at the site or area of concern. The NJDEP published detailed instructions for complying with these requirements.
It is common and expected for any regulatory body to periodically update its rules and develop new standards and requirements. In this case, these requirements are coming into effect very close to remedial action mandatory timeframes. For example, sites that were subject to the May 7, 2014 statutory timeframe to complete the remedial investigation have a regulatory timeframe deadline of May 7, 2019 to complete remedial action. While this is a key compliance concept in the Site Remediation Reform Act (SRRA), it should not be a cause for alarm, as regulation provides tools and options. The Licensed Site Remediation Professional (LSRP) can assess and recommend an appropriate course. For example:
- The Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) provide for an extension of the regulatory timeframe by up to two years. If necessary, this option will provide additional time to complete remediation and documentation. However, the notification of extension must be submitted to the Department by April 7, 2019.
- Depending upon the specific provisions of the governing regulatory program for the specific site, the discovery of PFAS may be viewed as a new triggering event and initiate a new case with new timeframes not bound by the 2019 dates.
While the NJDEP has made a strong statement regarding compliance with PFAS GWQS, it must be understood that having a regulatory standard does not automatically trigger the requirements for investigation and remediation. Regardless of regulatory program, understanding the site history and site conceptual model is critical in making the right decisions. In many cases a preliminary assessment already exists and can provide the basis for evaluating the need for further action. Is there reason to believe, based either on site-specific information or literature information and experience that PFAS may be reasonably be expected to be present at an Area of Concern (AOC)? In many cases there will be adequate information to conclude that PFAS is not a concern and no further assessment is warranted. On the other hand, and given the widespread occurrence of PFAS, background and off-site sources should be assessed and documented carefully. The NJDEP does not require a remediating party to remediate contamination that is not related to its site, and there is regulatory and guidance framework to guide closure under those conditions.
Our experienced site assessment staff, PFAS experts and well-versed LSRPs can help you determine whether your site may be affected by these new requirements and how to address effectively, if needed. If you have questions about this announcement or related issued please contact me or any of our LSRPs.