TRENTON, N.J. (Legal Newsline) - A New Jersey appeals court has affirmed the State's regulations on chemicals known as PFAS that are found in drinking and ground water and bioaccumulate in the body, earning the nickname "forever chemicals."
Rules setting maximum contaminant levels have been resisted by critics who say scientific research on their exact effects on the human body are unknown. Some studies link the chemicals to some cancers, and New Jersey set an MCL of 13 parts per trillion.
New Jersey was also the first state to use private lawyers working on contingency fees to file a PFAS lawsuit against companies like DuPont and 3M that manufactured products using the chemicals. PFAS can be found on nonstick cookware, waterproof clothing and firefighting foam used on military bases, among other items.
DuPont faced dozens of cases from the alleged release of PFOA around its western West Virginia plant, leading to an agreement that created a so-called "science panel." The residents around the plant won medical monitoring damages, and their health was analyzed by the science panel.
The panel believed there were links to six health issues, and litigation has continued in a multidistrict litigation proceeding in South Carolina. Though other research projects on the effects of PFAS have been debated, 3M has agreed to pay $12.5 billion to settle claims from local water districts.
However, New Jersey Attorney General Matthew Platkin is one of many AGs who has objected to the settlement.
An Aug. 3 ruling from the Appellate Division of the New Jersey Superior Court affirmed the state's level of 13 parts per trillion, rejecting challenges that said the Department of Environmental Protection didn't comply with the requirements of the Administrative Procedure Act.
3M had argued with the State's calculations during its adoption of PFAS regulations in 2020 and claimed 16 parts per trillion was more appropriate. It said DEP's adoption was arbitrary, capricious and unreasonable and that its public notice of the proposed regulations failed to include a sufficient description of their socio-economic impact.
The notice did not include specific costs that would be incurred by drinking water providers, the objectors said. The Appellate Division disagreed.
"In its notice, DEP identified the numerous and diverse entities and individuals that will be affected by the rule amendments, including water systems, well owners, consumers, local health agencies and parties engaged in site remediation," the decision says.
"DEP further explained the costs associated with the rule amendments would be passed on to consumers, but there will be financial savings from the MCLs through reduced medical costs."
The DEP also noted costs would vary based on multiple factors and that it could not precisely define all costs. State law does not require an agency to mathematically precise in a situation like this, the court ruled.
The DEP also did not ignore comments it received during the public comment period, the court found.