I’ve been thinking about writing an article on this for some time as an example of the runaway regulatory state, since it is within my field of expertise. And because it is also a fine example of a regulatory agency finding excuses to regulate more things just because they can, regardless of whether there is an actual quantifiable threat to human health and the environment. So what the hell, I’m giving it a shot, and if the admins choose to post it, feel free to have at me.
I have been in the environmental consulting and remediation field in New Jersey for approximately 30 years. New Jersey is a fine place for such work, since it has been industrialized since the early 1800s; in fact, Paterson was one of the very first industrial cities in the nation. Until about the 1970s, there were few rules regarding handling of hazardous materials and wastes, so there is ample work here for someone in the business of environmental remediation.
The New Jersey Department of Environmental Protection, (NJDEP) has recently developed policies and requirements regarding chemicals known as Contaminants of Emerging Concern. These contaminants are chemicals that have been used in various manufacturing and production processes, but were previously not identified as contaminants of concern, and could not be easily identified via laboratory analytical techniques and detection limits. In other words, these contaminants were previously not a concern because available laboratory methodologies were not sensitive enough to detect them at the levels they are typically present. These chemicals can be found in drugs, fragrances, detergents, pesticides and disinfectants, among other common products.
Due to the new analytical abilities of laboratories, it has allowed detection of the exceedingly low levels at which these chemicals typically occur in ground water. Although the understanding of the toxicity and health effects of these chemicals is still developing, the NJDEP has issued guidelines under authority from the Technical Requirements for Site Remediation, N.J.A.C. 7:26E which requires all contamination, including all discharged substances, hazardous waste, and pollutants, must be remediated. In other words, even though there is no data which demonstrates human toxicity at these low levels, the State is regulating it anyway, by claiming authority under a broad general statute.
Therefore, responsible parties at a site under environmental investigation must ensure that the potential presence of these chemicals must be investigated if there is any (any!) potential that they could have been used or stored on site or were contained in any of the products and materials used on site prior to closing the case.
A little more background: In New Jersey, there is a program under the Site Remediation Reform Act which licenses environmental professionals with specified education, training, and experience to become Licensed Site Remediation Professionals, or LSRPs. If any site in New Jersey requires any environmental remediation, it must be performed by an LSRP, and only the LSRP can eventually close the case by issuing a letter known as a Response Action Outcome, or RAO.
Since these contaminants include chemicals such as Per- and Polyfluoroakyl Substances (PFAS) that are not included in the standard Target Analyte List, analysis for these chemicals must be specified to the lab if the LSRP suspects that they may have been present on the site. Although the science regarding health effects is still emerging (currently no data showing human toxicity), the NJDEP typically uses advisory limits recommended by the New Jersey Drinking Water Quality Institute (DWQI), which are overly conservative. The recommended limits for different PFAS range from 10 nanograms per liter (10ng/L) or 10 parts per trillion (ppt) to 70 ng/L, or 70ppt. Therefore the laboratory must be prepared to achieve the required detection limits for analyses in order to properly investigate the ground water at the site.
Since these Contaminants of Emerging Concern can be found in a wide variety of products and materials at extremely low levels, there are recommendations for precautions to be taken when conducting sampling, in order to avoid cross-contamination and potential false positives. Among the recommendations are: don’t wear coated Tyvek protective coveralls; don’t use Teflon sampling equipment, even though Teflon sampling equipment is required for all other ground water sampling; don’t wear clothing that has been washed using fabric softener or certain detergents; and avoid fast food containers and wrappers, as they may contain PFAS. That’s right, something that is safe enough to be used to wrap and contain food for human consumption may cause an exceedance of the regulatory standard in your ground water sample if it cross-contaminates it.
So, even though people are constantly exposed to these very low levels of PFAS in clothes treated with fabric softener, fragrances, and even fast food containers and wrappers, which are deemed safe for those purposes, and there is currently no data showing human toxicity from low-level exposure, the State has decided that since modern laboratory equipment can now detect these very low-levels (parts per trillion!) of these substances, it will now regulate them, and require full investigation and remediation, at considerable expense, because they can.
After all, the regulatory state isn’t just going to grow organically, it needs a little help now and then.