Ryan H. Knapick, Esq.
ATTN: DEP Docket No. 02-19-03
Office of Legal Affairs
Department of Environmental Protection
401 East State Street, 7th Floor
Mail Code 401-04L; P.O. Box 402
Trenton, NJ 08625-0402
RE: NJBIA comments on the proposed rules regarding perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). DEP Docket Number: 02-19-03, Proposal Number: PRN 2019.042
Dear Mr. Knapick, Esq.,
On behalf of our member companies that provide more than 1 million jobs in the state and make the New Jersey Business & Industry Association (NJBIA) the largest statewide business association in the country, we would like to comment on the proposed rules regarding perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS).
NJBIA believes that high quality drinking water is of the utmost importance to the State and its residents. To address our challenges in this area, New Jersey needs a fundamental change in our approach to drinking water protection verses the continued practice of relying solely on individual standards to adequately protect human health. NJBIA proposes that the Department focus on exploring treatment systems capable of removing most, if not all, of relevant potentially harmful substances which is a more comprehensive solution.
Through the stakeholder process, the New Jersey Drinking Water Quality Institute (DWQI), recommended maximum contaminant levels of 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. Per the stakeholder recommendation, the New Jersey Department of Environmental Protection announced proposed interim specific groundwater quality criteria for PFOA and PFOS.
This new set of Maximum Containment levels (MCLs) recommendations highlights the challenges in continuing to rely on individual standards to adequately protect human health. This process creates a constant moving target for not only public and private water systems, but also for businesses implementing processes or environmental cleanups. This is particularly so for emerging contaminants, of which there are potentially hundreds. It is literally impossible for the Department to analyze and set standards for each contaminant, as well as staying ahead of the latest science on contaminants with existing MCLs. The burden on the regulated community would also be overwhelming as more testing, treatment and potential for cleanup would be required.
Rather than a rush to propose additional MCLs, at lower and lower levels (we are now proposing standards to parts per trillion), the State needs a paradigm shift on how we treat chemicals in our environment. The Department should be exploring comprehensive treatment systems capable of removing potentially harmful substances. While cost is an obvious factor, an emphasis on adequate treatment to provide stability in the drinking water world can eliminate the endless system of searching for new contaminants to add to the MCL list, requiring testing, and then mandating various treatment technologies. The existing system serves no one very well.
The Department must also recognize that drinking water purveyors, as well as others impacted by a change in this MCL and groundwater quality standards, will be fiscally challenged to balance these requirements to their already prioritized capital and operational needs. If this rule is adopted, the MCL will be in place requiring compliance within short regulatory timeframes. Testing will immediately be required, water dischargers will have to monitor and put in treatment, and potentially responsible parties will have to perform cleanups.
These actions cannot all be priorities, especially when compared to other health and environmental needs (e.g. lead, infrastructure upgrades, stormwater, clean energy). The Department has made no distinction between what must be done to comply with this rule versus others previously adopted and will adopt. As such, there is no priority system, no means to implement asset management and improve systems over time. Further, there is no cost-benefit analysis or consideration to the fact that the public cannot afford to pay for every environmental initiative all at once.
Aside from these more global issues, the NJBIA has a number of specific questions and concerns with the proposal.
Federal Standards – NJBIA recognizes and supports the Department’s authority to adopt drinking water standards that are more stringent than those adopted by the federal government. Establishing contaminant levels more stringent than the federal government is especially important where there is a circumstance unique to New Jersey, such as population density or geography, that necessitate such levels. We are concerned, however, that New Jersey is not unique in its need for more stringent PFOA and PFOS drinking water standards and we question the difference in scientifically derived drinking water standards from what is being proposed and what remains in place at the federal level.
The United States Environmental Protection Agency (USEPA) has not established a MCL for PFOA or PFOS. Rather, they have set a health advisory for PFOA and PFOS combined at 70 parts per trillion. The USEPA web page states that they have set these levels “based on the agency’s assessment of the latest peer-reviewed science.” It is our understanding that the USEPA and the NJDEP calculate health effects and risks from contaminants in drinking water using essentially the same risk analysis methodologies. Thus, we presume, the difference in the conclusions between the two agencies cannot be explained by the implementation of differing calculations. This discrepancy should be resolved.
It is also our understanding that USEPA has access to and is aware of all of the scientific studies used by DWQI and the Department in proposing its PFOA and PFOS MCLs. In fact, staff from the Department have been in contact with USEPA staff over the past several years and also met in person specifically to discuss health impacts from drinking water contaminated with PFOA and PFOS. The USEPA decisions on PFOA and PFOS go back several years and cannot be ascribed to any predeterminations by the current Administration. Their decisions have been consistent for at least the last two Administrations.
As the USEPA has acted on the exact same information as the Department and the same risk methodologies have been used, the Department should resolve the discrepancy between the state and federal levels and explain why its levels are significantly lower than the USEPA health advisories.
Private Well Testing Act – As part of this proposal, the Department is mandating that PFOA, PFOS, and PFNA be tested as part of the Private Well Testing Act (PWTA). NJBIA has several concerns with this proposal.
When the PWTA was adopted by the Legislature, tests were required for a limited number of contaminants and the total cost of those tests were under $200. Over time, more contaminants were added and costs have risen. The average test today is approximately $700. Adding PFOA and PFOS to the PWTA mandated contaminants will add $300 to this total, with some estimates being as high at $500 more. This will drive up the mandated testing cost up to $1,000 – $1,200, a significant sum. NJBIA believes this cost is burdensome and thus, PFOA and PFOS should not be added to the PWTA list at this time. We do not believe the benefits justify the cost. We note, as well, that nothing would prevent a prospective property owner from doing these tests at the time of purchase or at some later point in time. We only object to this being a mandate under the PWTA.
NJBIA is also concerned with potential time delays in obtaining analytical results given the lack of laboratory capacity at this time. As much as a 2 to 3 week delay is anticipated. This delay can have an enormous negative impact on the residential real estate market. While the rules do provide an 18-month delay in this mandate, we would suggest that if the changes to the PWTA are adopted that it be delayed until such time as the Department determines that sufficient laboratory capacity exists so as not to delay real estate transactions.
Requiring that PFOS and PFOA compounds be added to the suite of compounds analyzed in private wells under the Private Well Testing Act seems premature and not necessary for a large group of citizens who own private wells. As an example, Northern New Jersey has many private wells in areas that are predominantly farmed or forested. They are not located in areas of known manufacturing using fluorine chemistry and/or near commercial airports or military airports that would have used fire-fighting foam. Other parts of New Jersey are similar as being a low risk for contamination. Requiring homeowners in low risk areas to be burdened with the added cost of PFAS analysis seems unnecessary.
Further, the testing process is quite onerous and is recognized as having the real potential for false positives, driving costs up even more. The Interstate Regulatory Commission’s (ITRC) published fact sheet ( https://pfas-1.itrcweb.org/fact-sheets/ ) discusses sampling concerns. Under typical protocol for sampling identified in New Jersey’s Field Sampling Procedures Manual (FSPM), samples are typically collected from a faucet and not directly from the well itself. FSPM indicates:
….sample as close to the well head as possible and upstream of the storage tank or any treatment system.
Homeowners’ plumbing systems should not be tampered with in any way, except for removal of the faucet screen (aerator) with permission of the homeowner. Under no circumstances shall a pump be pulled from a homeowner’s well unless the removal is authorized by the homeowner and is carried out by a licensed pump installer.
When combining the low threshold of parts per trillion in the interim specific groundwater quality criteria with the widespread use of Teflon products in pumps and plumbing equipment, materials and fixtures, the likelihood of false positives is significantly increased. Many water systems utilize LDPE, MDPE and HDPE piping which may influence sample results. When a positive result is obtained, the first response should be to re-sample under a more rigid sampling protocol, thus adding to the cost for the homeowner. This added cost could include hiring a licensed plumber and/or well driller to assist the lab in sample collection. To do adequate testing may require that a well pump be pulled. To pull the pump using a licensed well driller, as required by state regulation, and collect a truly representative sample from a well would be extremely costly.
Given the costs, likelihood of false positives, limited risk, and negative impact to the real estate market, no changes should be made to the Private Well Testing Act testing provisions.
Groundwater Quality Standards – As part of this proposal the Department is amending its groundwater quality standards to reflect the proposed MCL standards. The result of this change would be to prohibit the discharge of PFOA or PFOS at levels that exceed those standards. This would apply to NJPDES permit holders who discharge directly to groundwater.
In the rule summary it states that these dischargers can use the same treatment technology (usually granulated activated carbon) as may be used by drinking water purveyors. This is factually incorrect. Because of the other contaminants in wastewater, and the volumes and velocity of a discharge, carbon filters are not a treatment option. To our knowledge, there is no technology that would treat PFOA or PFOS to the proposed levels in discharging to groundwater. Absent such a technology, the groundwater quality standards should not be adopted. If there is another technology, this was not reflected in the summary document or economic impact statements.
Conclusion – The NJBIA appreciates the opportunity to comment on this rule. We question why the Department’s proposal differs from the conclusions being reached by the USEPA. We object to the inclusion of PFOA and PFOS in the private well testing act. We also do not believe the groundwater quality standards should be changed to reflect the proposed MCLs if the result of that would be to require NJPDES permit holders who discharge to groundwater to meet those standards. Thank you for your consideration.
Vice President, Government Affairs
New Jersey Business & Industry Association