PFAS contamination presents a particularly difficult question for property owners, businesses, municipalities, and developers: Who is responsible for paying for the investigation and cleanup? The answer depends heavily on the source and pathway of the contamination, the parties involved, and the particular statute or regulatory program that applies. In New Jersey, the Department of Environmental Protection (NJDEP) has adopted site-remediation standards for PFNA, PFOA, PFOS, and GenX, addressing contamination in soil as well as migration from soil into groundwater. NJDEP also regulates PFAS in groundwater and has established drinking-water standards for certain PFAS compounds.

The first step in determining responsibility is generally investigation. Where PFAS is detected in soil or groundwater, the investigation may need to determine where the PFAS came from, when it was released, and how it migrated to the affected property. Potential sources can include industrial operations, manufacturing facilities, firefighting foam, wastewater discharges, landfills, and other activities involving PFAS-containing materials. New Jersey’s Spill Compensation and Control Act is particularly important because it provides a statutory framework for addressing discharges of hazardous substances and can expose responsible parties to substantial investigation and remediation costs.

The question becomes more complicated when there are multiple potential sources or multiple potentially responsible parties. A current property owner may discover PFAS in its soil even though the contamination originated with a former owner or tenant, a neighboring property, a manufacturer, or another user of PFAS-containing materials. Groundwater migration can make the problem still more difficult because contamination may cross property boundaries and become commingled with PFAS from other sources. The parties may therefore dispute not only who is legally responsible, but also whether a particular party actually caused or contributed to the contamination and how cleanup costs should be allocated. The federal CERCLA framework is also relevant to PFOA and PFOS, which EPA designated as hazardous substances, although the precise federal liability analysis depends upon the statutory requirements and facts of the particular release.

For a property owner confronted with PFAS contamination, the process therefore can involve NJDEP oversight, environmental investigation, remediation planning, negotiations among potentially responsible parties, insurance coverage issues, and litigation. A party may seek contribution or reimbursement from other responsible parties, while NJDEP may independently pursue parties it believes are responsible for the discharge. Litigation may involve competing experts on the source and migration of PFAS, disputes concerning historical property uses, contractual indemnification, insurance coverage, and arguments over the appropriate allocation of cleanup costs. The critical point is that finding PFAS on a property does not, by itself, answer the question of who ultimately pays. That determination requires reconstructing the history and movement of the contamination and then applying the applicable state and federal liability regimes to those facts.