Not without a fight: A curious coalition challenges New Jersey’s PFAS regulations

The challenge

On October 1, 2020, a group of petitioners filed a Notice of Appeal with the New Jersey Appellate Division, challenging New Jersey Department of Environmental Protection (NJDEP) regulations that add two of the more notorious forms of PFAS chemicals—PFOA and PFOS—to several regulatory programs.

The petitioners are comprised of 3M, a PFAS manufacturer; the Landis Sewerage Authority, which operates a wastewater treatment facility; and the Sussex County Municipal Utilities Authority, which operates a landfill and a wastewater treatment facility; as well as three business and industry interest groups.

The petitioners assert that the regulations, which became effective June 1, 2020, did not comply with the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and are arbitrary, capricious, and otherwise unreasonable. This may be the first time that regulators will be put to task in court to defend the basis for stringent standards that are expected to be especially expensive for the regulated community to achieve.

PFAS primer

PFAS is an abbreviation for “per- and polyfluoroalkyl substances” and refers to a family of thousands of human-made chemicals that are used globally in many industries, in firefighting foam, and in a surprising number of common household products (e.g., Teflon nonstick pans, waterproof clothing, stain-resistant fabrics, dental floss, and food wrappers). Known as “forever chemicals,” their fluorine-chlorine bond is one of the strongest known in nature, so they are persistent and do not easily degrade. They also bioaccumulate. Until recently, they weren’t regulated.

After decades of widespread unregulated use, PFAS are practically ubiquitous on the planet. Studies find them in 99 percent of humans’ blood and in remote places, even Arctic seawater.

The push for regulation comes from the continually growing body of evidence that exposure to PFAS can lead to adverse human health outcomes. Studies find links to reproductive, developmental, liver, kidney, and immunological effects, and tumors in laboratory animals. Links to increased cholesterol levels, low infant birth weight, cancer (PFOA), and thyroid hormone disruption (PFOS) are also found. PFOA and PFOS were phased out of production by 2015 in the United States yet remain persistent in the environment.

To date, the U.S. Environmental Protection Agency (EPA) has not established an enforceable maximum contaminant level (MCL) (i.e., a drinking water safety standard) or an enforceable environmental remediation standard (i.e., groundwater or soil cleanup criteria). In 2016, EPA announced a drinking water health advisory level of 70 parts per trillion (ppt), but there is no legal requirement to meet this standard.

In the absence of federal standards, states across the country are responding to increasing public pressure and acting on their own, resulting in a patchwork of rapidly evolving regulations, legislation, studies, and litigation. Examples including banning PFAS-containing firefighting foam, suing PFAS manufacturers, and establishing their own MCLs, remediation standards, and permitting requirements.

NJDEP’s PFAS regulations

On March 31, 2020, NJDEP adopted the amendments incorporating PFOA and PFOS into several of its programs.

As a result, New Jersey now has a drinking water standard, or MCL, of 14 ppt for PFOA and 13 ppt for PFOS. In 2018, New Jersey established an MCL of 13 ppt for PFNA, another PFAS chemical. The MCL concentrations also apply to permitted discharges of PFOA and PFOS to groundwater, as well as remediation standards for cleanup of contaminated groundwater. Additions were also made to the New Jersey Pollutant Discharge Elimination System (NJPDES) program and the List of Hazardous Substances, Discharges of Petroleum and Other Hazardous Substances.

The amendments primarily affect drinking water providers, operating facilities with discharge permits, wastewater treatment facilities, and parties responsible for remediating PFAS groundwater contamination.

Compliance costs and challenges

PFAS are the ultimate “emerging contaminant.” The chemicals have been used globally for decades before their harmful effects were known, and regulations are brand new. Only a handful of states began to set standards before New Jersey.

Parts per trillion. One challenge of regulating PFAS is the incredibly small concentrations associated with adverse health effects. Drinking water standards most often use concentrations of parts per million or parts per billion, not, as with PFAS, parts per trillion. Here is an illustration on how these concentrations compare:

• One part per million = One inch in 16 miles
• One part per billion = One inch in 16,000 miles
• One part per trillion = One inch in 16,000,000 miles

Harriett S. Stubbs, Parts per Million, Billion, Trillion, 29:1 Science Activities 17–20 (1992).

Sampling. It is difficult and expensive to test for an analyte in the parts per trillion. Only a few U.S. laboratories have equipment that can calibrate to that level. Special precautions are also necessary to avoid cross contamination in the sample.

Remediation. PFAS remediation technologies are in their infancy. Also, PFAS chemicals are practically indestructible. Granular activated carbon (GAC) is one option, but there is a wide range in efficacy rates, depending on numerous factors. Several alternative technologies are under development.

Disposal. The disposal of PFAS remediation waste, such as spent carbon from GAC systems, is a highly controversial issue.

What to expect in the appeal

Based on the comments raised by the petitioners during the comment period when the NJDEP regulation was proposed, there appears to be two major substantive areas of dispute.

The numerical value. Determining health-based standards requires a complex and highly technical analysis. It is riddled with decisions involving selection of animal toxicology studies, interpretation of epidemiological observations, determination of default relative source contribution factors, evaluation of potency factor certainty, etc. Generally speaking, a court is reluctant to overturn an expert agency’s decision in the technical and scientific sphere of decision-making. The increasing number of states adopting MCLs and other health-based standards well below the EPA health advisory level of 70 ppt would seem to further support NJDEP’s position.

Costs. For cost issues, we can look to New Hampshire, where their PFAS standards were challenged by a familiar group—a municipal water and sewer district, a sewage sludge disposal company, and 3M. In July 2019, New Hampshire adopted by regulation some of the most stringent drinking water and groundwater quality standards in the United States for four PFAS chemicals—PFOA (12 ppt), PFOS (15 ppt), PFHxS (18 ppt), and PFNA (11 ppt).

The group filed a lawsuit and in November 2019 secured a preliminary injunction that halted the enforcement of the new standards. The legislature, however, stepped in and, on July 23, 2020, the governor signed into law a PFAS bill that established by statute those same standards. The preliminary injunction was ordered dissolved once the statute becomes effective.

The injunction is nonetheless interesting for our New Jersey case. It was issued on the basis of only one factor: The court found that the plaintiffs would likely succeed on the merits of their claim that New Hampshire did not conduct an “adequate cost-benefit analysis required” under state law. Plymouth Village Water & Sewer District v. Scott, No. 217-2019-CV-00650 (N.H. Super. Ct. Nov. 26, 2019).

The New Hampshire court found the agency was “glossing” over the challenge of quantifying the costs to comply with a standard lower than EPA’s health advisory level without being able to articulate the benefits of the lower standard. It will be interesting to see how the New Jersey court evaluates NJDEP’s analysis of the costs to comply, especially with respect to remediation technologies.

Published in Trends January/February 2021, Volume 52, Number 3, ©2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

©2016. Published in The Business Lawyer, Vol. 71, No. 4, Fall 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.