NJ Legislators To Consider A Bill To Ban And Label Certain Products Containing PFAS “Forever Chemicals”

Bill Needs Work – Significant Gaps And No Industry Funding

The Senate Environment Committee will hear a bill, S3177 (Smith, Greenstein) next Thursday 6/8/23 that would ban and mandate labeling for certain products that contain PFAS, so called “forever chemicals”. (Read the proposed “Protecting Against Forever Chemicals Act”.

The bill is “for discussion only”, meaning that there will be testimony but the Committee will take no action on the bill.

The bill was introduced last October, along with a flawed companion bill (S3176). I wrote to criticize that bill which would require a duplicative and unnecessary DEP study of drinking water treatment technologies for PFAS chemicals. That bill is stalled in the Senate Budget Committee, see:

• DEP Completed The Study Required By Senator Smith’s “Forever Chemicals” Bill A Decade Ago

So, it is unclear why the bill was posted for consideration by Chairman Smith (a co-sponsor) at this time or if he’s abandoned the flawed drinking water treatment companion bill.

After a cursory review, I noted that the bill needs some work.

I can’t understand Senator Smith’s strategy. It would be a far better idea to introduce the strongest and most comprehensive bill imaginable, and then negotiate with industry to scale it back, than to introduce the current bill that needs to be expanded and strengthened by amendments.

Although I am not up to speed on these issues, I wrote to suggest amendments to consider to address some of the glaring gaps. Let’s hope the bill gets some strong testimony and media attention.

A legislative ban on products in commerce is a bold tactic that needs to be used more often – the labelling approach, not so much.

The status and role of the DEP PFAS lawsuits also need to be explored in detail (see this and this):

Dear Chairman Smith and Senator Greenstein:

Please accept the following suggested amendments to improve your bill, S3177,  the proposed “Protecting Against Forever Chemicals Act”.

1. PFAS in Food – Including Mothers’ Milk

The bill fails to include food as a source of human exposure to PFAS compounds.

Mothers’ milk and commercial food products, including fish, shellfish, dairy, eggs, and certain meats and food crops have been found to contain unsafe levels of PFAS. (Sources: see

ATSDR

https://www.atsdr.cdc.gov/pfas/health-effects/pfas-breastfeeding.html

FDA PFAS Food Sampling Program:

https://www.fda.gov/food/process-contaminants-food/questions-and-answers-pfas-food

See also:

IN-DEPTH: What we know about PFAS in our food

https://www.ehn.org/pfas-in-food-2657507160.html

Certain food products should be included in the “biota” sampling program established by Section 17.

2. Agricultural Sources

Farms that have land applied sewage sludges have been found to have unacceptably high levels of PFAS in soils and certain crops. Such farms should be included in the DEP PFAS sampling program in the bill. See:

• Murphy DEP Urged To Expand Statewide Sampling for “Forever Chemicals” To Farmland And Agricultural Products

3. Section 16 – Source reduction – Ongoing DEP regulatory program

The bill’s approach to “Source reduction” is inconsistent with and in conflict with NJ law, regulation, and policy pursuant to the Pollution Prevention Act and the Solid Waste Management Act (as amended by the Toxic packaging Reduction Act and Dry Cell Battery Management Act).

Both those laws address and establish a DEP regulatory program for toxics use reduction and impose obligations on the private sector and manufacturers.

With respect to private section PFAS manufacturer obligations, the bill merely requires:

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

The bill should be amended to include a definitions of “source reduction” consistent with the above referenced laws and in addition to the bans, require additional reductions in PFAS use. Please see the statutory definition of “Pollution Prevention” and the DEP’s regulatory definition of “Source reduction”.

4. Funding

There is no fiscal note on the State government costs of implementing the bill.

The bill includes a one time $5 million General Fund appropriation. That’s a good start, but far more funding is required to implement the program mandated by the bill.

Importantly, PFAS manufacturers and responsible parties must bear the large burden of funding and the bill only includes small administrative fees.

I understand that DEP is seeking financial recovery of costs through various lawsuits (see this and this), but that recovery is highly uncertain and even if successfully litigated would occur until far into the future (and some recovered funds would be constitutionally dedicated for other uses).

Perhaps a direct fee on the manufacture, distribution and use of PFAS – including historical production – would be an equitable funding approach to recovering these huge costs.

5. Firefighting Foams and other PFAS products

I understand that firefighting foams are a major source of PFAS. They should be included in the bill for bans, phase outs, and source reduction/pollution prevention requirements.

Additionally, there are other products containing PFAS that are not specified in the bill that should be. Here is ATSDR data for your consideration

https://www.atsdr.cdc.gov/pfas/health-effects/exposure.html

I appreciate your favorable consideration.

Bill Wolfe