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New Jersey sues federal government over drinking water contamination allegedly caused by military base operations

On January 14, 2021, the New Jersey Department of Environmental Protection (“NJDEP”) brought suit against the federal government under the federal Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.) and New Jersey’s Safe Drinking Water Act (N.J.S.A. §§ 58:12A-1 et seq.). The complaint alleges that contamination stemming from the use of aqueous film-forming foam (“AFFF”) on certain US military bases throughout the state has seeped into the state’s groundwater, causing contamination of the drinking water in multiple municipalities.

According to the complaint, AFFF is used in fire-fighting operations and is known to contain perfluorooctane sulfonic acid (“PFOS”) and perfluorooctanoic acid (“PFOA”), two types of the category of manufactured chemicals known as per- and polyfluoroalkyl substances (“PFAS”). These two particular substances have been designated as “hazardous substances” under New Jersey law due to both their negative effects on human health and their persistence in the environment. Dubbed “forever chemicals,” PFOS and PFOA do not naturally break down in the environment and are unaffected by conventional treatment systems for drinking water.

In June 2020, the NJDEP released new regulations reflecting the danger these “forever chemicals” pose by decreasing the allowable limits of PFOS and PFOA concentrations in drinking water. According to these regulations, the limit for PFOS is 13 ppt and for PFOA the standard is 14 ppt. See N.J.A.C. 7:9C., Appx. These restrictions go beyond the federal requirements, which currently limit PFOS and PFOA concentrations to a combined 70 ppt. Through its complaint, New Jersey asserts that samples taken throughout one of the military bases that is an alleged source of drinking water contamination recorded combined levels of PFOS and PFOA as high as 264,300 ppt, far exceeding both the federal and state limits. According to the NJDEP’s June press release regarding the new regulations, the human health concerns related to PFOS and PFOA include liver issues, delays in growth and development for fetuses and infants, and an increased risk of cancer.

You can read the full text of the complaint here: https://www.nj.gov/oag/newsreleases21/COMPLAINT(AFFF).pdf

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