Earlier today, the New Jersey Department of Environmental Protection (NJDEP) issued a directive requiring five companies – Solvay, DuPont, Dow DuPont, Chemours and 3M – to provide detailed information on their use of PFAS chemicals and potential modes of discharges such as through wastewater treatment plants, air emissions, and consumer products.  The directive also notifies the companies that the state intends to hold them responsible for PFAS remediation costs.

This is yet another move on the state level in pursuit of regulating PFAS chemicals.  We reported earlier today on new developments in New York and are monitoring the soon-to-be issued investigative orders in California.

The New York State Department of Environmental Conservation (NYSDEC) is now requiring all sites entering into a state cleanup program to sample for two of the more popular and well-known “emerging contaminants” – 1,4-dioxane and Per- and Polyfluoroalkyl substances (aka PFAS) – in soil, groundwater, surface water, sediment, and, where applicable, biota.  There is currently no requirement to sample soil vapor.

NYSDEC is also requiring similar sampling of any soil imported to a site, such as for backfill or a soil cap.  According to the guidance, NYSDEC will evaluate the results on a site-specific basis to determine appropriate use.

The recently-issued guidance document, Sampling for 1,4-Dioxane and Per- and Polyfluoroakyl Substances (PFAS) Under DEC’s Part 375 Remedial Programs, is a significant expansion of the NYSDEC policy issued last year, which also required 1,4-dioxane and PFAS sampling at all sites in a state cleanup program, but only of groundwater.

Keep in mind that NYSDEC is still developing cleanup standards for the majority of these contaminants, so the extent of the impact on the development and implementation of remedial strategies won’t be clear for a while.  However, at minimum, the requirement to sample all environmental media (except spoil vapor) could have significant impacts on the cost, complexity, and duration of at least the investigation phase of remediation projects in New York, and may also complicate due diligence issues.

Stay tuned as we continue to follow these important developments impacting NYSDEC cleanup programs, as well as the ongoing developments in other states making moves towards regulating PFAS chemicals in the absence of federal drinking water or cleanup standards for the time being.

Whenever estate planning involves the transfer of a business or real estate, environmental issues can be important drivers. Owners and operators of real property are strictly liable for the remediation of any contamination on the property regardless of who caused the contamination. Often families are unaware of the environmental obligations and liabilities associated with their properties and businesses. This is especially the case for long-held family businesses and real estate. Planning requires getting an understanding of the values of the assets and potential liabilities associated with them.

The transfers of these assets may trigger a requirement to investigate and remediate properties under the New Jersey Industrial Site Recovery Act (ISRA) which requires investiga­tion and remediation of properties that are deemed “industrial establishments” when they are transferred or when operations cease at any location. Industrial establish­ments include properties that have been used for a wide variety of uses including any manufacturing, various types of distribution and repairs operations. It is important to know about ISRA including certain exemptions for transfers by devise or to family members and to trusts whose beneficiaries are family members. Sales to third parties will not be exempt.

Beyond ISRA, the New Jersey Spill Act requires all owners of contaminated properties to report the contamination and clean it up. Estate planning should take into account environmental requirements so that families can leave a legacy that does not include the complications of unresolved environmental liabilities.

The PFAS family of chemicals continues to be in the spotlight on what seems like an almost daily basis.  Just earlier today was this article, reporting on at least 55 drinking water systems contaminated with PFAS chemicals from Defense Department use of firefighting foam, a common source of PFAS chemicals.   Here is our report last month on recent regulatory actions at the state level, along with some background on the toxicity and prevalence of PFAS chemicals.

The big news last week was the United States Environmental Protection Agency’s (EPA) release of its PFAS Action Plan, laying out the agency’s short and long-term plans to address PFAS contamination.  Here is the news conference with EPA’s Acting Administrator Wheeler.  The release of this plan is yet another step in the direction towards federal regulation of PFAS chemicals.  While the plan is being heavily criticized by many for not doing enough, federal regulation is still possible in the near term, especially with pressure from both Democrats and Republicans in Congress.  Meanwhile, a regulatory patchwork is rapidly developing on the state level.

The United States Supreme Court agreed today to consider the issue of whether a Federal Clean Water Act (“CWA”) permit is required for discharges of pollutants from point sources that reach CWA navigable waters through a groundwater conduit. By taking up this case, the Supreme Court will hopefully resolve a current Circuit Court split between the 9th and 4th Circuits, which have both held that discharges of pollutants through groundwater require a CWA permit, and the 6th Circuit which has rejected that theory.

The case before the Court is County of Maui v. Hawaii Wildlife Fund, et al., No. 18-260, in which the 9th Circuit ruled that pollutants found in CWA navigable waters that are “fairly traceable” to a point source discharge to groundwater are a basis for liability under the Act and would require a CWA permit. In County of Maui, the point sources at issue were underground injection wells that discharged sanitary effluent via groundwater to the Pacific Ocean.

The Supreme Court’s decision could have far-reaching impacts on a variety of industries and practices, including those which may not be currently regulated under the CWA. The decision also has the potential to bring an added layer of complexity and reopener risk to groundwater cleanups.