October 13, 2022
Bruce S. Katcher, Esq.
A comprehensive package of bills regulating per- and polyfluoroalkyl substances (PFAS) was introduced in the New Jersey Senate and Assembly on October 3, 2022. The bills, S-3176 – 3180 (all co-sponsored by Senate Environment and Energy Committee chair and co-chair Bob Smith and Linda Greenstein) and A-4758 – 4762, would create a variety of new requirements applicable to PFAS in drinking water, impose a system of notification requirements for manufacturers of products containing “intentionally added” PFAS, prohibit the sale of certain such products, impose labelling requirements for certain cookware products, require NJDEP to develop a PFAS source reduction program, and require and appropriate funds for NJDEP research. Under the bills, PFAS would be defined to include any substance that includes any fluorinated organic chemical containing at least one fully fluorinated carbon atom, with no limit on the quantity or concentration.
The package of bills is similar to a variety of PFAS water quality and product regulation bills that have been introduced or passed in a number of other states and promises to be very controversial. How the bills address both PFAS in drinking water and PFAS in certain manufactured products is summarized below.
PFAS in Drinking Water
As of now, NJDEP has adopted separate Maximum Contaminant Levels (MCLs) for the individual PFAS including PFNA (13 ppt), PFOS (13ppt) and PFOA (14 ppt). S-3176/A-4760 would require NJDEP, together with the Drinking Water Quality Institute (DWQI), to conduct a study to determine whether MCLs for PFAS in drinking water should be established for the entire class of PFAS or for individual subclasses rather than individual PFAS, and to study treatment technologies for PFAS in water and wastewater. A report would have to be submitted to the legislature within two years of the legislation’s effective date.
S-3178/A-4761 would require NJDEP and DWQI to conduct an annual assessment of unregulated PFAS to determine whether drinking water standards should be set and would require NJDEP to conduct an assessment of whether current and proposed MCLs adequately protect children as compared to adults.
S-3179/A-4759 would establish new ten day written customer notification requirements for any public water system (PWS) that exceeds any PFAS MCL and for periodic notice updating the status of any remediation. Where customers are landlords, the landlords must in turn supply three day written notice to every tenant who has a lease agreement with the landlord and is served by the PWS (unless the tenant is a direct customer of the PWS) and post the notice in a conspicuous location near the entrance of the rental premises (except for certain single-family residences).
S-3180/A-4762 would require each public community water system to submit a plan to NJDEP that identifies an alternative water supply to be used when an exceedance of an MCL for a PFAS is discovered and to use that plan.
PFAS-Containing Product Regulation
S-3177/A-4758 would impose a variety of new requirements on products containing PFAS.
A new NJDEP notification requirement, to start one year after the effective date of the bill, would be imposed on all manufacturers of products for sale in the state containing “intentionally added PFAS” with a $1000 fee to accompany the notification. Beginning one year later, any manufacturer who failed to file the notification would be prohibited from selling its PFAS containing products. Retailers may also be subject to the prohibition when notified by the manufacturer that its sale is prohibited.
Beginning two years after the effective date, the bill would prohibit the sale, offer for sale, or distribution of certain products that intentionally added PFAS including cosmetics, carpets, fabric treatment, and food packaging – with exceptions for certain “technically unavoidable trace quantities” as defined by the bill.
Also, beginning two years after the effective date, labelling requirements would be imposed on manufacturers of cookware (with certain exceptions for very small cookware and where PFAS are present in certain “technically unavoidable trace quantities”) containing intentionally added PFAS. Sale, offer for sale or distribution within the state of cookware without labels would be prohibited.
The legislation would require NJDEP to establish a PFAS source reduction program, and the agency would be required to recommend to the Legislature other products containing intentionally added PFAS to be banned from sale.
In addition, S-3177/A-4758 also would require NJDEP to conduct a variety of PFAS research, monitoring and testing of PFAS in air, water, biota and soil, for which $5 million would be appropriated. The agency is also afforded a number of enforcement tools, including civil penalties, civil enforcement actions, and administrative orders. NJDEP may also audit or investigate any manufacturer to assess its compliance and require the manufacturer to pay for the audit.
A separate bill introduced back in May 2022, S-2712/A-4125 would prohibit the sale, manufacture, distribution, or use of Class B fire-fighting foam containing intentionally added PFAS effective in two years. Whether this bill has the same impetus toward passage as the new package remains to be seen. Given the spotlight on PFAS regulation today, it seems possible that at least a portion of the new package will survive in some form and create a set of new and complex regulatory requirements for NJDEP to implement at substantial cost to the agency and industry.