Source: https://www.nj.com, May 13, 2019
By: Michael Sol Warren
We won’t pay.
That’s the message that a group of major chemical companies have in response to being ordered by the state of New Jersey to pay for the cleanup of what are known as “PFAS” chemicals (short for polyfluoroalkyl and perfluoroalkyl substances).
The five companies — DuPont, DowDuPont, Chemours, 3M and Solvay — have all informed the New Jersey Department of Environmental Protection that they have no intention to pay for statewide cleanup after a state directive issued in March asserted them to be financially responsible for PFAS contamination around the Garden State.
But in letters first reported by Bloomberg, lawyers for each of the companies strongly object to the directive, question the state’s legal footing and declare that the have no intention of paying for the cleanup of the entire state.
The amount of money at stake in this dispute is unknown, but is expected to reach massive levels. When the directive was announced, NJDEP Commissioner Catherine McCabe told NJ Advance Media that upgrading drinking water systems across the state to address PFAS chemicals could cost hundreds of millions of dollars — that cost does not include any actual cleanup work.
Caryn Schinske, a spokeswoman for the NJDEP, said Monday that the state is continuing to work with the five companies in response to the directive and that the state remains hopeful for a voluntary resolution.
“While DEP cannot comment on the specifics on any of its discussions with the companies subject to the directive, we are confident in our legal authority as to the requirements and actions set forth therein,” Schinske said.
In a joint response to the NJDEP on April 17, DuPont and Chemours pointed out that they are only named by the state as potentially responsible parties for PFAS pollution at sites in Salem County and Middlesex County. The companies say that while they plan to work with the state to cleanup those specific sites, they have no intention of paying for PFAS cleanup in any other part of New Jersey.
DuPont and Chemours’s lawyer Lanny Kurzweil argues the state is overstepping its authority under the Spill Compensation and Control Act by ordering the companies to take action beyond site-specific remediation.
Solvay’s lawyer, Christopher Roe, made a similar argument to the NJDEP in a letter that was also sent on April 17. Roe writes that Solvay operates a single facility in New Jersey — a West Deptford manufacturing plant — and that Solvay is not responsible for the wrongdoings of other companies.
“DEP’s decision to target Solvay for all PFAS impacts in New Jersey is patently unreasonable,” Roe writes.
The state directive singles out Solvay to pay more than $3 million for remediation work that was already done by the NJDEP in West Deptford, where the company used perfluorononanoic acid (PFNA) from 1985 to 2010.
In a letter sent to NJDEP on April 25, 3M’s lawyer Donald Camerson writes that the company is not liable under state law for financial responsibility because it never directly spilled PFAS into New Jersey’s environment. Instead, the state only alleges that 3M sold chemicals like perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) to other companies, who then polluted.
“DEP’s attempt to hold 3M liable for alleged discharges of PFOA and PFOS by Solvay, DuPont and other third parties is fundamentally flawed,” Camerson writes.
All of the companies wrote that they intend to continue cooperating with NJDEP, despite the refusals to comply with the entirety of the state’s directive.
According to the Centers for Disease Control, the health effects of PFAS exposure range from increased risk of cancer to stunting the growth of children. Exposure to these chemicals, which have been used to manufacture everything from nonstick cook-wear and stain-resistant carpets to cosmetics, is even linked to lower chances of pregnancy in affected women.