A4758

An Act concerning perfluoroalkyl and polyfluoroalkyl substances, supplementing Title 13 of the Revised Statutes, and making an appropriation.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Protecting Against Forever Chemicals Act.”

2. The Legislature finds and declares: that perfluoroalkyl and polyfluoroalkyl substances, or PFAS, are man-made chemical compounds that have multiple fluorine atoms bonded to a chain of carbon atoms; that there are over 12,000 different types of PFAS, and new types are invented on a nearly daily basis; that since the 1930s, PFAS have been widely used in countless consumer products because they repel oil, water, and grease; and that PFAS continue to be used across a variety of industries for a variety of purposes and are ultimately contained in many of the products sold in the State.

The Legislature further finds and declares: that the carbon-fluorine bond that forms PFAS is one of the strongest chemical bonds found in nature and does not break down under typical environmental conditions; that PFAS are nicknamed “forever chemicals” because they accumulate in the environment, rather than break down, over time; that PFAS enters the environment through manufacturing processes and waste streams, and humans are exposed through contaminated food, dust, air, drinking water, and certain consumer products; that human exposure to these chemicals has been linked to endocrine disruption, cancer, immuno-toxicity, and developmental impacts; and that PFAS have been detected in the blood serum of 98 percent of humans tested.

The Legislature further finds and declares: that contamination of air, soil, and water in the State from PFAS poses a significant threat to the environment of the State and to the health of its citizens; that the full extent of PFAS contamination in the State is not presently known, but is anticipated to be widespread and to require a significant expenditure of resources to identify and remediate; and that, to address the imminent threat of further contamination of air, soil, and water in the State and protect the public health of citizens in the State, it is imperative to conduct PFAS-related research within the State and to phase out the sale of certain nonessential products containing PFAS.

The Legislature therefore determines that it is in the best interest of the residents of New Jersey for PFAS to be prohibited from being intentionally added to certain products being manufactured and sold within the State, for manufacturers of products containing PFAS to notify the Department of Environmental Protection of the presence of PFAS in their products, and for educational programming and research concerning PFAS to be available to residents in the State.

3. As used in this act:

“Carpet” means a rug or fabric marketed or intended for use as a floor covering.

“Commissioner” means the Commissioner of Environmental Protection.

“Cookware” means durable houseware items that are used in homes and restaurants to prepare, dispense, or store food, foodstuffs, or beverages. “Cookware” includes, but is not limited to, pots, pans, skillets, grills, baking sheets, baking molds, trays, bowls, and cooking utensils.

“Cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap.

“Department” means the Department of Environmental Protection.

“Fabric treatment” means a substance applied to fabric to give the fabric one or more characteristics, including, but not limited to, stain resistance or water resistance.

“Food packaging” means a nondurable package, packaging component, or food service ware that is intended to contain, serve, store, handle, protect, or market food, foodstuffs, or beverages, and is composed, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers. “Food packaging” includes food or beverage containers, take-out food containers, unit product boxes, liners, wrappers, serving vessels, eating utensils, straws, food boxes, and disposable plates, bowls, or trays.

“Intentionally added PFAS” means PFAS added to a product or intentionally used during the development of a product or one of its product components to provide a specific characteristic, appearance, or quality or to perform a specific function. “Intentionally added PFAS” also includes any degradation byproducts of PFAS.

“Manufacturer” means the person that manufactures a product or whose brand name is affixed to the product. In the case of a product imported into the United States, “manufacturer” includes the importer or first domestic distributor of the product if the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States.

“Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

“Product” means an item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, which is sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products.

“Product component” means an identifiable component of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.

“Product label” means a display of written, printed, or graphic material that appears on, or is affixed to, the exterior of a product, or its exterior container or wrapper that is visible to a consumer, if the product has an exterior container or wrapper.

4. a. Beginning one year after the effective date of this act, a manufacturer of a product for sale in the State that contains intentionally added PFAS shall submit to the department a written notification that includes:

(1) a brief description of the product;

(2) the purpose for which PFAS are used in the product, including in any product components;

(3) the amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department;

(4) the name and address of the manufacturer;

(5) the name, address, email address, and phone number of a contact person for the manufacturer; and

(6) any additional information determined by the department to be necessary.

b. Upon submission of the required information pursuant to subsection a. of this section, a manufacturer shall also pay the department the fee imposed pursuant to section 5 of this act.

c. A manufacturer may submit the information required pursuant to subsection a. of this section to the department for a category of products that are substantially similar, as determined by the department, rather than for each individual product.

d. The department may waive all or part of the notification criteria required pursuant to subsection a. of this section if the department determines that substantially equivalent information is already publicly available, or if the information is already provided to the department pursuant to other State or federal law.

5. a. Each manufacturer of a product containing PFAS that is required to submit written notification to the department pursuant to section 4 of this act, shall pay a fee of $1,000 to the department upon submission of the written notification.

b. The department shall use the fee to cover the costs of assessing and reviewing the written notifications submitted by manufacturers pursuant to section 4 of this act and administering, implementing, and enforcing the provisions of this act.

6. a. Beginning two years after the effective date of this act, a manufacturer that has failed to provide the department with the notification information required pursuant to section 4 of this act or pay the fee required pursuant section 5 of this act shall not sell, offer for sale, or distribute for sale in the State a product containing intentionally added PFAS.

b. The prohibition in subsection a. of this section shall not apply to a retailer in the State unless the retailer sells, offers for sale, or distributes for sale in the State a product for which the retailer has received a notification pursuant to section 7 of this act that the sale of the product is prohibited.

7. If the department has reason to believe that a product containing intentionally added PFAS is being offered for sale or distribution in the State in violation of the provisions of section 6 of this act, the department shall direct the manufacturer of the product to, within 30 days:

a. certify, in writing, to the department that the product does not contain intentionally added PFAS; or

b. notify persons who sell that product in this State that the sale of that product is prohibited in the State and provide the department with a list of the names and addresses of those notified.

8. a. Beginning two years after the effective date of this act, no person shall sell, offer for sale, or distribute for sale in the State any cosmetic product that contains intentionally added PFAS.

b. If a cosmetic product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the cosmetic product, that trace quantity shall not cause the product to be in violation of this section.

9. a. Beginning two years after the effective date of this act, no person shall sell, offer for sale, or distribute for sale in the State a carpet or fabric treatment that contains intentionally added PFAS. This prohibition shall not apply to the sale or resale of a used carpet or fabric treatment.

b. If a carpet or fabric treatment contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.

10. a. Beginning two years after the effective date of this act, no person shall sell, offer for sale, or distribute for sale in the State any food packaging that contains intentionally added PFAS.

b. If a food packaging product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.

11. a. Beginning two years after the effective date of this act, a manufacturer of cookware sold in the State that contains intentionally added PFAS in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages shall list the presence of PFAS on the product label.

b. The product label of a cookware product containing PFAS shall include a statement, in both English and Spanish, that reads: “This product contains PFAS.”

c. A manufacturer of cookware sold in the State shall ensure that the statement required on the product label pursuant to subsection b. of this section is visible and legible to the consumer, including on the product listing for online sales.

d. Beginning two years after the effective date of this act, a manufacturer shall not make a claim, on the product label or Internet website for the cookware product, that the cookware is free of PFAS if PFAS was intentionally added to the cookware.

e. Cookware that meets both of the following requirements shall be exempt from the requirements of this section:

(1) the surface area of the cookware cannot fit a product label of at least two square inches; and

(2) the cookware does not have either of the following:

(a) an exterior container or wrapper on which a product label can appear or be affixed; or

(b) a tag or other attachment with information about the product attached to the cookware.

12. a. Beginning two years after the effective date of this act, no person shall sell, offer for sale, or distribute for sale within the State cookware that contains PFAS unless the cookware and the manufacturer of the cookware have complied with the labeling requirements established pursuant to section 11 of this act.

b. A violation of subsection a. of this section shall be an unlawful practice pursuant to P.L.1960, c.39 (C.56:8-1 et seq.) and shall subject the violator to all remedies and penalties available pursuant to P.L.1960, c.39 (C.56:8-1 et seq.).

c. If a cookware product contains a technically unavoidable trace quantity of PFAS, which stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product, that trace quantity shall not cause the product to be in violation of this section.

13. a. The department shall recommend to the Legislature products, in addition to those prohibited from being sold, offered for sale, or distributed pursuant to this act, by category or use, that should not be sold, offered for sale, or distributed for sale in this State if they contain intentionally added PFAS.

b. In determining which additional products containing PFAS should be prohibited for sale or distribution within the State, the department shall prioritize the prohibition of the sale of product categories or uses that, in the department's judgment, pose the greatest risk to public health or are most likely to cause contamination of the State's air, land, or water resources if they contain intentionally added PFAS.

14. The department may audit or investigate a manufacturer to assess the manufacturer's compliance with the requirements of this act. Each year, the department may audit, or cause to be audited, a random sample of manufacturers in order to determine compliance with this act. A manufacturer shall cooperate fully with any audit or investigation conducted pursuant to this section. The department may require a manufacturer to pay the costs of an audit conducted pursuant to this section.

15. a. Whenever the Commissioner of Environmental Protection finds that a person has violated any provision of this act, or any rule or regulation adopted pursuant thereto, including knowingly making a false certification to the department pursuant to section 7 of this act or violating the provisions of subsection d. of section 11 of this act by making a false claim on the product label or Internet website for a cookware product, the commissioner may:

(1) issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;

(2) bring a civil action in accordance with subsection c. of this section;

(3) levy a civil administrative penalty in accordance with subsection d. of this section;

(4) bring an action for a civil penalty in accordance with subsection e. of this section;

(5) direct a manufacturer that is not in compliance with the requirements of this act to stop offering for sale or distributing certain products that contain intentionally-added PFAS; or

(6) notify the public of a manufacturer that is not in compliance with the requirements of this act.

The exercise of any of the remedies provided in this section shall not preclude the seeking of any other remedy specified.

b. Whenever the commissioner finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an administrative enforcement order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, requiring compliance with the provision violated, and giving notice to the person of the person's right to a hearing on the matters contained in the administrative enforcement order. The ordered person shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.

c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or any rule or regulation adopted pursuant thereto. This relief may include an assessment against the violator for the costs of any investigation, inspection, or audit that led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d. The commissioner is authorized to impose a civil administrative penalty of not less than $1,000 nor more than $20,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate and distinct offense.

In assessing a civil administrative penalty, the commissioner shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will maintain an appropriate deterrent.

Prior to assessment of a civil administrative penalty, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate.

e. A person who violates any provision of this act, or any rule or regulation adopted pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the commissioner. In addition to any penalties, costs or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.

16. a. No later than one year after the effective date of this act, the department shall establish and implement a source reduction program to reduce the presence of PFAS in the State’s air, water, and soil by encouraging the proper management of materials that contain PFAS and the use of safer alternatives. The program shall include, at a minimum:

(1) informational resources targeted to industrial and commercial users of PFAS;

(2) education of the general public concerning PFAS and its environmental and health impacts;

(3) to the extent funds are available, grants to operators of publicly owned treatment works for the purposes of developing, expanding, or implementing pretreatment standards for PFAS and education of users on sources of PFAS and proper management;

(4) to the extent funds are available, grants to municipalities for the purposes of educating solid waste disposal users on sources of PFAS and its proper management; and

(5) any other information and efforts that are determined by the department to be beneficial in reducing the presence and impact of PFAS in the State.

b. No later than two years after the effective date of this act, and annually thereafter until 10 years after the effective date of this act, the department shall submit a report to the Governor and the Legislature, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), on the effectiveness of the program in reducing PFAS discharges to air, water, and soil within the State, and educating industrial and commercial users of PFAS and residents of the State on PFAS and its proper management.

17. a. The department shall conduct PFAS-related research and comprehensive monitoring and testing of the presence and impact of PFAS on the environmental media within the State, including air, water, biota, and soil. The purpose of the department’s research shall be to gain knowledge surrounding the subject of PFAS, provide insight into the proper management and mitigation of PFAS within the State, and to protect the environment from the adverse impacts of PFAS.

b. The department’s research shall include, at a minimum:

(1) the collection of soil samples from throughout the State for monitoring and testing for PFAS;

(2) the collection of water samples from throughout the State for monitoring and testing for PFAS;

(3) the collection of air samples from throughout the State for monitoring and testing for PFAS;

(4) the collection of fish, plant, and animal samples from throughout the State for monitoring and testing for PFAS;

(5) the comparison of PFAS samples gathered across the State in an effort to measure levels of PFAS contamination and also determine if there are any hotspots of PFAS contamination in the State;

(6) research concerning the impact of PFAS on the State’s air, water, and soil quality and ways to mitigate the negative impacts of PFAS;

(7) data collection of research findings and mitigation efforts concerning PFAS in other States and countries; and

(8) any other data collection and research that the department deems necessary to improve the current foundation of knowledge on the subject of PFAS.

c. No later than two years after the effective date of this act, and annually thereafter, the department shall provide a report to the Governor and the Legislature, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), summarizing their research findings and activities and providing recommendations for programs, policies, and legislation to address the presence of PFAS in the State.

18. a. There is appropriated from the General Fund to the department the sum of $5 million for the purposes of carrying out the source reduction program pursuant to section 16 of this act and conducting PFAS-related research, monitoring, and testing pursuant to section 17 of this act.

b. Each year after the date of enactment of this act, the department shall submit as a part of its annual budget, a request for sufficient funds to conduct the air, water, and soil testing and PFAS-related research required pursuant section 17 of this act.

19. a. Any proprietary information or trade secrets included in any written notification, certification, or any other record submitted to the department pursuant to this act shall not be made available to the general public pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.), commonly known as the open public records act.

b. In order to identify the proprietary information or trade secrets to be protected from public disclosure pursuant to subsection a. of this section, a manufacturer shall file a trade secret claim to the department, in a form and manner determined by the department. No later than 90 days after receipt of a trade secret claim, the department shall make a determination on the validity of the trade secret claim. Upon making a determination on the validity of a trade secret claim, the department shall inform the manufacturer of the determination by certified mail. If the department determines that the manufacturer's trade secret claim is not valid, the manufacturer shall have 45 days from the receipt of the department's determination to file with the department a written request for an administrative hearing on the determination. If the manufacturer does not file such a request within 45 days, the department may take action to disclose the information for which the trade secret claim was made, pursuant to the provisions of this act. If an manufacturer requests an administrative hearing pursuant to the provisions of this subsection, the department shall refer the matter to the Office of Administrative Law, for a hearing thereon. At the hearing the manufacturer shall have the burden to show that the trade secret claim is valid. Within 45 days of receipt of the administrative law judge's recommendation, the department shall affirm, reject, or modify the recommendation. The department's action shall be considered the final agency action for the purposes of the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), and shall be subject only to judicial review as provided in the Rules of Court. The department shall inform the manufacturer of its decision on the administrative law judge's recommendation by certified mail.

c. The subject of any trade secret claim pending or approved shall be treated as confidential information. The department shall not disclose any confidential information to any person except an officer or employee of the State in connection with the official duties of the officer or employee under any law for the protection of public health or the environment. Any officer or employee of the State who has access to any confidential information, and who willingly and knowingly discloses the confidential information to any person not authorized to receive it, shall be guilty of a crime of the third degree.

d. Any written notification containing information for which a trade secret claim is pending or has been approved may be made available to the public with that information concealed.

20. The department may, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules or regulations necessary to implement the provisions of this act.

21. This act shall take effect immediately.

STATEMENT

This bill would prohibit the sale of certain products containing intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS), require greater transparency in the labeling of certain products containing PFAS, establish a source reduction program concerning the proper management of PFAS, and appropriate money for PFAS-related research. As defined in the bill, “PFAS” means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

Specifically, the bill would require, beginning one year after the bill’s effective date, a manufacturer of a product for sale in the State that contains intentionally added PFAS to submit to the Department of Environmental Protection (DEP) a written notification that includes: (1) a brief description of the product; (2) the purpose for which PFAS are used in the product, including in any product components; (3) the amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the DEP; (4) the name and address of the manufacturer; (5) the name, address, email address, and phone number of a contact person for the manufacturer; and (6) any additional information determined by the DEP to be necessary. A manufacturer would be able to submit the notification information to the DEP for a category of products that are substantially similar, as determined by the DEP, rather than for each individual product. Upon submission of the required notification information, a manufacturer would also be required to pay the $1,000 fee to the DEP imposed pursuant to section 5 of the bill.

Beginning two years after the bill’s effective date, a manufacturer that has failed to provide the DEP with the required notification information or pay the required fee would be prohibited from selling, offering for sale, or distributing for sale in the State a product containing intentionally added PFAS.

If the DEP has reason to believe that a product containing intentionally added PFAS is being offered for sale or distribution in the State in violation of section 6 of the bill, the DEP would be required to direct the manufacturer of the product to, within 30 days: (1) certify, in writing, to the DEP that the product does not contain intentionally added PFAS; or (2) notify persons who sell that product in this State that the sale of that product is prohibited in the State and provide the DEP with a list of the names and addresses of those notified. A retailer would not be prohibited from selling a product containing intentionally added PFAS unless the retailer sells, offers for sale, or distributes for sale a product for which the retailer has received notification from the product’s manufacturer or the DEP that sale of the product is prohibited.

The bill would also prohibit, beginning two years after the bill’s effective date, the sale, offer for sale, or distribution of cosmetics, carpets, fabric treatment, and food packaging that contain intentionally added PFAS. Section 15 of the bill establishes penalties for violations of the bill’s provisions, or any rules or regulations adopted pursuant thereto, and for any manufacturer who knowingly makes a false certification to the DEP pursuant to section 7 of the bill or violates the provisions of subsection d. of section 11 of the bill by making a false claim on the product label or Internet website for a cookware product.

The bill also includes provisions that would allow products containing a trace amount of PFAS to continue to be sold, distributed, and manufactured within the State without the product being in violation of the bill’s provisions as long as the trace amount stems from impurities of natural or synthetic ingredients or the manufacturing process, storage, or migration from packaging of the product. The bill’s intent is to prohibit the intentional addition of PFAS into these products.

In addition, the bill would require, beginning two years after the bill’s effective date, manufacturers of cookware sold in the State that contains intentionally added PFAS in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages to list the presence of PFAS on the product label. The bill would require the product label to include a statement, in both English and Spanish, which reads: “This product contains PFAS,” and the statement would be required to be placed on the label in a manner that is visible and legible to the consumer. The statement would be required to be included on the cookware product’s product listing on the manufacturer’s Internet website as well. Beginning two years after the bill’s effective date, a manufacturer would be prohibited from making a claim, on the product label or Internet website for the cookware product, that the cookware is free of PFAS if PFAS was intentionally added to the cookware. Certain cookware products that meet the requirements in subsection e. of section 11 of the bill would be exempt from the labeling requirements of the bill.

Beginning two years after the bill’s effective date, the sale, offer for sale, and distribution of cookware that contains PFAS would be prohibited unless the cookware product and the manufacturer of the cookware has complied with the bill’s cookware labeling requirements. A violation of this provision would be an unlawful practice pursuant to P.L.1960, c.39 (C.56:8-1 et seq.), commonly known as the State's “Consumer Fraud Act.” As provided by section 1 of P.L.1966, c.39 (C.56:8-13), an unlawful practice under the Consumer Fraud Act is punishable by a monetary penalty of not more than $10,000 for a first offense and not more than $20,000 for any subsequent offense. In addition, a violation can result in cease and desist orders issued by the Attorney General, the assessment of punitive damages, and the awarding of treble damages and costs to the injured.

The bill would also require the DEP to recommend to the Legislature products, in addition to those prohibited from being sold, offered for sale, or distributed pursuant to the bill, by category or use that should not be sold, offered for sale, or distributed for sale in this State if they contain intentionally added PFAS. In determining which additional products containing PFAS should be prohibited for sale or distribution within the State, the DEP would be required to prioritize the prohibition of the sale of product categories or uses that, in the DEP’s judgment, pose the greatest risk to public health or are most likely to cause contamination of the State's air, land, or water resources if they contain intentionally added PFAS.

Under the bill, the DEP would have the authority to audit or investigate a manufacturer to assess the manufacturer's compliance with bill’s provisions. Each year, the DEP may audit, or cause to be audited, a random sample of manufacturers in order to determine compliance. Manufacturers are required to cooperate fully with any audit or investigation conducted, and the DEP may require a manufacturer to pay the costs of an audit conducted.

The bill would require the DEP to establish, no later than one year after the bill’s effective date, a source reduction program to reduce the presence of PFAS in the State’s air, water, and soil by encouraging the proper management of materials that contain PFAS and the use of safer alternatives. The program would be required to include, at a minimum: (1) informational resources targeted to industrial and commercial users of PFAS; (2) education of the general public concerning PFAS and its environmental and health impacts; (3) to the extent funds are available, grants to operators of publicly owned treatment works for the purposes of developing, expanding, or implementing pretreatment standards for PFAS and education of users on sources of PFAS and proper management; (4) to the extent funds are available, grants to municipalities for the purposes of educating solid waste disposal users on sources of PFAS and its proper management; and (5) any other information and efforts that are determined by the DEP to be beneficial in reducing the presence and impact of PFAS in the State. The DEP would be required to submit a report to the Governor and the Legislature, no later than two years after the bill’s effective date, and annually thereafter for 10 years, on the effectiveness of the program in reducing PFAS discharges to air, water, and soil within the State, and educating industrial and commercial users of PFAS and residents of the State on PFAS and its proper management.

The bill would also require the DEP to conduct PFAS-related research and comprehensive monitoring and testing of the presence and impact of PFAS on the environmental media within the State, including air, water, biota, and soil. The purpose of the DEP’s research would be to gain knowledge surrounding the subject of PFAS, provide insight into the proper management and mitigation of PFAS within the State, and to protect the environment from the adverse impacts of PFAS. The DEP’s research would be required to include, at a minimum: (1) the collection of soil samples from throughout the State for monitoring and testing for PFAS; (2) the collection of water samples from throughout the State for monitoring and testing for PFAS; (3) the collection of air samples from throughout the State for monitoring and testing for PFAS; (4) the collection of fish, plant, and animal samples from throughout the State for monitoring and testing for PFAS; (5) the comparison of PFAS samples gathered across the State in an effort to measure levels of PFAS contamination and also determine if there are any hotspots of PFAS contamination in the State; (6) research concerning the impact of PFAS on the State’s air, water, and soil quality and ways to mitigate the negative impacts of PFAS; (7) data collection of research findings and mitigation efforts concerning PFAS in other States and countries; and (8) any other data collection and research that the department deems necessary to improve the current foundation of knowledge on the subject of PFAS. No later than two years after the bill’s effective date, and annually thereafter, the DEP would be required to submit a report to the Governor and the Legislature summarizing their research findings and activities and providing recommendations for programs, policies, and legislation to address the presence of PFAS in the State.

The bill would appropriate from the General Fund to the DEP the sum of $5 million for the purposes of implementing the source reduction program, conducting PFAS-related research, and monitoring and testing environmental media, such as air, water, and soil, for PFAS pursuant to the bill.

Any proprietary information or trade secrets included in any written notification, certification, or any other record submitted to the DEP pursuant to this bill is required to be kept confidential from the general public pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.), commonly known as the open public records act. Finally, the bill authorizes the DEP to adopt rules or regulations necessary to implement the provisions of the bill.

PFAS are man-made chemical compounds that have multiple fluorine atoms bonded to a chain of carbon atoms. Since the 1930s, PFAS have been widely used in countless consumer products because they repel oil, water, and grease. There are over 12,000 different types of PFAS, and new types are invented on a nearly daily basis. PFAS are commonly found in products such as polishes, waxes, paints, cleaning products, cookware, cosmetics, carpet treatments, fire extinguishing foam, dental floss, shampoos, waterproof clothing, food packaging, and even microwave popcorn. As a result, the presence of PFAS in the environment is widespread, and further exacerbated by multiple sources. The carbon-fluorine bond that forms PFAS is one of the strongest chemical bonds found in nature and does not break down under typical environmental conditions. As a result, PFAS are nicknamed “forever chemicals” because they accumulate, rather than break down, over time.

PFAS may enter the environment in the following ways: (1) the disposal of products containing PFAS in landfills, thereby contaminating the surrounding soil, groundwater, and source water; (2) the utilization of PFAS by manufacturing sites, which may result in contamination of the surrounding ground and surface waters; (3) the utilization of sludge byproducts containing PFAS on agricultural land, thereby leading to water and soil contamination; (4) the discharge of PFAS by wastewater treatment plants into source waters that service public drinking water systems; and (5) the contamination of private wells by groundwater containing PFAS. The widespread presence of PFAS in the water, soil, and air, results in the contamination not only of public drinking water systems and wells, but also of the food products humans and animals ingest. Plants, fish, and livestock, are commonly exposed to PFAS-contaminated water or food and are consumed daily by most Americans. Studies have indicated that exposure to PFAS, and the resulting buildup of PFAS in the human body, may be linked to certain harmful health effects in both humans and animals.

It is crucial to begin prohibiting the sale and distribution of products containing intentionally added PFAS within the State and to increase transparency with consumers of products that contain PFAS. In addition, there is a need for greater education surrounding PFAS and its impact on the environment and the health of the State’s citizens.