First-in-nation directive underlines New Jersey’s leadership on curbing toxic chemicals; requires details of manufacture, use and discharge of the chemicals

Credit: Amritanshu Sikdar/unsplash Credit: Amritanshu Sikdar/unsplash New Jersey stepped up its nation-leading efforts to curb toxic PFAS chemicals on Monday by ordering five industrial companies to pay for the investigation and cleanup of contaminated sites, and hand over details on their manufacture, use and discharge of the chemicals.

The Department of Environmental Protection said the companies are responsible for “significant contamination” of New Jersey’s water and air with the chemicals and have understood their toxic nature for decades even as scientists raise increasing concerns about health risks.

Now, the companies are being directed to compensate the DEP for its testing and remediation of the sites so far, and to take responsibility for cleanup going forward.

“Respondents are responsible for the significant PFAS contamination across New Jersey and the costs the Department has incurred, and will incur, responding to this threat to public health, safety and the environment,” the DEP said in a 16-page directive.

It named Solvay Specialty Polymers and Solvay Solexis; E.I. Dupont de Nemours and DowDupont; Dupont Specialty Products; Chemours, and 3M as the responsible parties.

New health limits on two of the chemicals

It also announced long-awaited health limits on two of the chemicals — PFOA and PFOS — that will be formally adopted for drinking water on April 1. The new maximum contaminant limits (MCLs) of 14 parts per trillion and 13 parts per trillion, respectively, will match new state groundwater standards for the chemicals.

Last September, New Jersey became the first state in the country to regulate another PFAS chemical, PFNA, and is setting tough new standards in the absence of federal regulation. The chemicals, formerly used in consumer products like non-stick cookware and flame-retardant fabrics, are linked to some cancers and other complaints including low birth weights, immune-system problems, and elevated cholesterol.

The Environmental Protection Agency, which has been under pressure from advocates to set national standards on PFAS, said in February that it would begin the process of regulating PFOA and PFOS but didn’t specify limits nor say how long it would take to implement them.

DEP Commissioner Catherine McCabe said any EPA regulation could take years to implement and so it was incumbent on states to act.

“Now is the time for action at the state level,” said McCabe. “The current EPA plan leaves millions of Americans exposed to harmful chemicals for too long by choosing a drawn-out process that will delay establishing a federal maximum contaminant level for PFAS.”

First in the nation

McCabe said the directive was the first of its kind in the nation, and takes its authority from state laws on air and water pollution and spill compensation.

Ed Lloyd, an environmental law professor at Columbia University, said the department has clear legal authority to issue the directive, which he said is certainly the first initiative of its kind on the PFAS chemicals.

“This is the use of comprehensive department authority to solve a problem in a comprehensive and complete way,” he said. “They have clear statutory authority to do this, and they are exercising it in an appropriate and legal manner.”

The Environmental Working Group, a national nonprofit that advocates for tougher PFAS standards, said New Jersey’s latest move shows that it is far ahead of the EPA in curbing the chemicals.

“New Jersey is taking real steps to address the statewide contamination of PFAS chemicals, and importantly ensure that the polluters are held responsible for funding the cleanup,” said EWG senior scientist, Dr. David Andrews, in a statement. “New Jersey should serve as a model for collecting information about past and ongoing PFAS use.”

‘…lack of federal action’

With its new move to hold manufacturers responsible, New Jersey confirmed its position as a leader in governmental efforts to protect public health from the chemicals.

“This is much-needed forthright action by New Jersey in the face of the expanding PFAS water crisis and the lack of federal action by the Environmental Protection Agency,” said Tracy Carluccio, deputy director of the Delaware Riverkeeper Network, an environmental group that has long campaigned for strict regulation of the chemicals. “The directive today and the proposal to adopt PFOA and PFOS safe drinking water standards on April 1 are providing the protection so urgently needed across the state, where PFAS contamination is amongst the highest in the nation.”

DEP tests of public water systems in all but one of New Jersey’s counties during 2009 and 2010 found up to eight PFAS chemicals in 70 percent of samples. In 2018, officials placed consumption advisories on some fish after they were found to contain the chemicals at 10 sites. By March 19 this year, about a fifth of public water systems sampled were found with as many as three PFAS chemicals at or above the official health limits, the DEP said.

Some private water wells are also contaminated. By June 2018, 284 private wells out of 992 sampled had PFOA at above the health limit, while 40 exceeded the limit for PFOS.

Concern about the chemicals is especially acute at military bases such as New Jersey’s Joint Base McGuire-Dix-Lakehurst where PFAS chemicals were used for years in firefighting foam, and where contamination levels are high.

The DEP accused one of the five companies, Solvay Specialty Polymers, of discharging “massive amounts” of a chemical that consists of about 75 percent PFNA into the air and water near its factory in West Deptford, Gloucester County, between 1990 and 2012.

The chemicals don’t break down in the environment, and so persist in water and soil in some places even after they are no longer made or used there.

State officials have so far sampled 400 wells around the Solvay site, and have found 83 of them require installation of a system to treat for PFNA or PFOA. Within 90 days, the DEP ordered the company to assume maintenance and operation of 70 sites near its plant where state officials have installed the treatment facilities.

It also ordered Solvay to pay $3.1 million to the DEP as reimbursement for its cost in investigating and treating for the chemicals near the West Deptford facility.

In 2013, Solvay began testing for PFAS chemicals near its plant after high levels of PFNA were found in nearby Paulsboro. On Monday, the company said it’s reviewing the DEP’s directive, and has been sharing information about the chemicals near its plant with state officials and local stakeholders.

Companies issue statements

“Solvay has been responding to the presence of compounds in the vicinity of its West Deptford plant and has implemented remedial activities,” the company said in a statement.

Chemours, which operates the Chambers Works plant at Deepwater in Salem County, said it too is sharing information with the DEP on emission of the chemicals, and is working to reduce them.

“Chemours has been significantly investing in emission control technologies at our fluoroproducts sites and has previously announced our global corporate responsibility goal to reduce air and water emission of fluorinated organic chemicals by 99% or greater,” the company said.

The DEP said PFOA and other PFAS chemicals “continue to be discharged” at the Chambers Works site, which has been in operation since the late 19th century. In addition, the company is using so-called replacement chemicals including Gen-X which experts say may be just as toxic as the chemicals they are designed to replace. One of the replacements, HFPO-DA, has been found in residential water wells near Chambers Works, DEP said.

Minnesota-based 3M, a leading manufacturer of PFOA and PFOS, did not respond to a request for comment.