In December, 2018, The New York State Departments of Health and Environmental Conservation announced that the New York State Drinking Water Quality Council had recommended that the Department of Health adopt the nation’s most protective maximum contaminant levels (MCLs) for PFOA, PFOS, and the nation’s first MCL for 1,4-dioxane. All three “emerging contaminants” have been detected in drinking water systems in New York and across the country, yet remain unregulated by the federal Environmental Protection Agency, which is responsible for setting regulatory limits under the federal Safe Drinking Water Act.
What is PFOA, PFOS and 1,4-dioxane?
Commonly referred to as, collectively “emerging contaminants,”
- PFOA is a chemical that has been used to make non-stick, stain resistant, and water repellant products;
- PFOS was used in fire-fighting foam; and
- 1,4-dioxane is a chemical that has been used as a stabilizer in solvents, paint strippers, greases and wax.
Where have emerging contaminants been found in New York?
- Hoosick Falls
In New York, Hoosick Falls, NY was the first location to receive widespread publicity about the presence of PFOA contamination in its drinking water. While the source of the PFOA contamination hasn’t been identified, Saint-Gobain Performance Plastics started paying for bottled water for residents in November 2015 and agreed to pay for the cost of filtration necessary to remove the chemical from the public water supply.
- Newburgh, NY
In August 2016, NYSDEC declared the Stewart Air Base a state superfund site due to the extremely elevated levels of PFOS detected in Lake Washington, a 1.3 billion-gallon reservoir that has served the city of Newburgh, NY since the 1880s. Indeed the Department of Defense has now acknowledged the presence of on-base or off-base PFOS contamination of groundwater or drinking water at many current or former base facilities.
- Long Island, NY
On Long Island, 1,4-dioxane has been detected in 71% of the public water supply systems that have been tested to date and 45% had 1,4-dioxane levels greater than the USEPA health advisory level of 0.35 mg/l.
What happens next?
The Drinking Water Quality Council recommendations will now be considered by the Commissioner of Health, who has authority to either accept the recommended MCLs or to propose alternate MCLs. How the Commissioner intends to proceed will be announced via a Notice of Proposed Rulemaking in the New York State Register. Publication of the Notice will be followed by a 60-day public comment period and following assessment of public comments, the proposed regulation will either be revised or submitted for adoption by the Public Health and Health Planning Council, subject to the approval of the Commissioner of Health.
Any such regulation would go into effect upon publication of a Notice of Adoption in the New York State Register. Once adopted, public water systems of all sizes would likely need to test their water within the specified timeframes in the regulations and comply with the adopted MCLs.
Funding for Emerging Contaminants
In October, Governor Cuomo announced $200 million in grant funding to help communities address PFOA, PFOS, and 1,4-dioxane in their drinking water supplies. The funding will provide support and assistance for communities to combat these emerging contaminants. Of the grant funding, $185 million is available to communities across the state to upgrade drinking water treatment systems to combat emerging contaminants, prioritizing PFOA, PFOS, and 1,4-dioxane. The remaining $15 million has already been awarded to communities pursuing system upgrades and innovative pilot technologies to treat these emerging contaminants. Additionally, the Governor directed the Department of Health, Department of Environmental Conservation, and the Environmental Facilities Corporation to provide technical assistance to communities to help assess system needs and apply for grant funding to address all three of these emerging contaminants.
Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you have questions about your water system, the emerging contaminant regulation or contamination, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.
Kevin C. Murphy
Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.