To continue combating environmental contamination, the New Jersey Department of Environmental Protection (NJDEP) issued new regulations this week, which take immediate effect for four Per- and polyfluoroalkyl substances (PFAS), including perfluorononanoic acid “PFNA,” perfluorooctanoic acid “PFOA,” perfluorooctane sulfonate “PFOS,” and ammonium salt “GenX.” A further decision regarding the implementation of an informal phase-in period is pending. While the designation of PFOA and PFOS as hazardous substances by USEPA is still a pending matter, New Jersey has stepped up its regulation of these substances (and PFNA and GenX) and it is important that environmental professionals, insurance providers, and industry professionals be aware of the tightening regulatory framework for these four PFAS.

Under these new regulations, sites actively performing cleanup activities (or future remediation sites) must investigate for these four PFAS and remediate to levels below the NJDEP’s standards and in accordance with the NJDEP’s timeframes. Although the NJDEP has advised that it will seek to replace the interim regulations as “soon as reasonably possible,” it has been slow to act in the past, and we can expect that the interim regulations may be applicable for some time. The interim regulations are:

PFNA: soil remediation standard: ingestion-dermal residential (mg/kg) 0.047; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 0.67; soil remediation standard: migration to groundwater (mg/kg): area of concern/site specific; soil leachate remediation standard: migration to groundwater (µg/L) 0.26;
PFOA: soil remediation standard: ingestion-dermal residential (mg/kg) 0.13; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 1.8; soil remediation standard: migration to groundwater (mg/kg) area of concern/site-specific; soil leachate standard: migration to groundwater (µg/L) 0.28;
PFOS: soil remediation standard: ingestion-dermal residential (mg/kg) 0.11; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 1.6; soil remediation standard: migration to groundwater (mg/kg) area of concern/site-specific; soil leachate standard: migration to groundwater (µg/L) 0.26;
GenX: soil remediation standard: ingestion-dermal residential (mg/kg) 0.23; soil remediation standard: ingestion-dermal nonresidential (mg/kg) 3.9; soil remediation standard: migration to groundwater (mg/kg): not applicable; soil leachate standard: migration to groundwater (µg/L) not applicable.

The Migration to Groundwater Exposure Pathway areas of concern/site-specific calculations for PFOA and PFOS should be computed using the Synthetic Precipitation Leaching Procedure (SPLP) set forth in Appendix 8 to N.J.A.C. 7:26D. This procedure requires the following:

1) collection of samples and implementation of SPLP procedures in accordance with appropriate NJDEP guidance;
2) input of appropriate values into NJDEP’s SPLP calculator on NJDEP’s website;
3) provision of resultant ARS and modified input parameters used in NJDEP’s SPLP calculator and description and basis of how the samples were selected (including all related laboratory results) in addition to the applicable form on the NJDEP’s website with applicable remedial phase report.

Additional information regarding the NJDEP’s new regulations can be found on their Interim Remediation Standards webpage.

Previous efforts by the NJDEP to publish interim standards without prompt formal rulemaking have been met with challenges and, as such, it is possible that such a challenge will arise concerning the interim regulations published this week. As most know, the regulation of PFAS is rapidly evolving and keeping pace with interim or final regulations, and the challenges to those regulations, is important to understand the shifting remediation standards and risks. Please check back here for an update regarding the implementation of a phase-in period when the Inhalation Exposure Pathway standards are released and as to any challenges made to the interim regulations.

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