Companies refuse to pay clean-up costs mandated by New Jersey directive

By Lisa Martine Jenkins | Chemical Watch | May 16, 2019

Read the full article by Lisa Martine Jenkins (Chemical Watch)

“Four major chemical companies operating in New Jersey have said they will not pay for a statewide investigation and clean up of per- and polyfluoroalkyl substances (PFASs) contamination. Their refusal comes despite being ordered to do so via a directive from the state’s Department of Environmental Protection

In letters to the NJDEP late last month, Chemours, DuPont, 3M and Solvay took issue with the department’s informal enforcement measure and said they will not pay the cost of cleaning up the fluorinated chemicals.

However, all agreed to ‘work with’ the department, especially regarding any contamination in the vicinity of their own factories.

In the 25 March directive, the NJDEP directed the companies to fund the statewide removal of PFAS contamination, citing evidence of the chemicals in waters across New Jersey. The companies would also be responsible for accounting for their PFAS use and discharge.

The directive cites the state’s Spill Compensation and Control Act as the source of its authority to hold the companies responsible for cleanup and removal costs, ‘no matter by whom incurred’ and ‘without regard to fault’.

But in letters submitted to the NJDEP between 17 April and 25 April, obtained by Bloomberg Environment, each company sets out their own ‘good cause defences’ for their respective refusal to pay. All responded within the time limit given in the original directive.

To refuse on good cause a directive requires a recipient to argue that it has an objectively reasonable basis for believing it to be invalid or inapplicable. When contacted by Chemical Watch, however, the NJDEP said: ‘We are confident in our legal authority’ with regard to the directive’s requirements…

No state has used a directive – which is not a ‘formal enforcement order, a final agency action or a final legal determination that a violation has occurred’ – to hold companies accountable for pollution in this way ever before…

In a 17 April letter, Chemours and Dupont responded jointly (Chemours is the DuPont subsidiary responsible for its fluorinated chemical dealings.), calling the statewide breadth ‘not just unprecedented but untenable’. They said that New Jersey’s environmental laws are only intended to be applied in the specific locations where discharges have occurred.

Solvay – which was singled out and told to reimburse the NJDEP $3m for past clean-up and treatment efforts – also called the directive ‘unprecedented’. In its letter – also sent on 17 April – it acknowledged its need to investigate certain contamination issues near its West Deptford facility in the southwest of the state, but also took issue with the implication that it is responsible for contamination across New Jersey.

Solvay operates a single facility in New Jersey and does not manufacture PFAS itself. It listed other potential PFAS sources – including gasket/seal manufacturers, historic use of firefighting foams (AFFF), other fluorochemical facilities, petrochemical facilities and landfills – that it said the NJDEP had failed to investigate.

Similarly, Chemours and DuPont argue that the directive’s failure to establish a ‘causal nexus between a given discharge or contamination and the responsible party’ flies in the face of New Jersey law.

Meanwhile, 3M said in a 25 April letter that it is ‘fundamentally flawed’ because perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) – the specific PFASs at issue – have not yet been named ‘hazardous substances’ under the Spill Act.

‘On 1 April 2019, DEP issued a proposed rule seeking to list the two substances as hazardous substances, but this is not yet final,’ 3M said in its letter to the NJDEP…”

This content provided by the PFAS Project.