If you were thinking that PFAS were important, but you’ve been unsure just how big a deal they are, you need look no further than the Statewide PFAS Directive issued by the New Jersey Department of Environmental Protection. Some of my colleagues in New Jersey may correct me, but I think that the Directive may be the most wide-ranging order I’ve ever seen issued by an environmental agency. (And I know that NJDEP denies that the Directive is in fact an “order.” Can you say “walks like a duck”?)
The Directive represents NJDEP’s attempt to frame a comprehensive approach towards the contamination resulting from the use of PFAS in New Jersey. That’s all well and good. Nonetheless, it’s not obvious that significant concerns about PFAS are enough to justify this Directive. Here are some of the provisions that might give one pause.
- NJDEP declares that “PFAS compounds constitute a statewide public nuisance” (Am I the only one who has never previously heard of such a thing?)
- 3M is subject to the Directive even though, as far as one can tell, it has no operations in New Jersey. The Directive states that:
3M is a person in any way responsible for PFOA and PFOS discharged in New Jersey as the primary manufacturer of PFOA.
Doesn’t this sound much more like a lead paint kind of products liability case, rather than an environmental statutory claim? I love that 3M was “in any way responsible.”
- Despite the rather Draconian provisions of the Directive, it explicitly provides that it:
is not a formal enforcement order, a final agency action or a final legal determination that a violation has occurred. This Directive is not subject to pre-enforcement review and may not be appealed or contested
Failure to comply may nonetheless result in treble damages, even against 3M, which, as noted, does not operate in New Jersey and is not alleged in the Directive to have arranged for the disposal of any PFAS in New Jersey.
The PFAS tsunami is fully underway.
New Jersey has a strong tradition of using nuisance and strict liability so not surprising the directives reference a statewide nuisance.