You might get a sense of déjà vu because we're back with another blog post on per- and polyfluoroalkyl substances (PFAS). As it should be apparent from the focus of our recent blog posts, a lot has been going on lately with these emerging contaminants in New York and around the country. With this post, we'd like to bring your attention to New York State's Drinking Water Quality Council's recent recommendations for the most protective maximum contaminant levels (MCLs) for these emerging contaminants.
First, a quick refresher on these "emerging contaminants"
As we've noted in a prior post, PFAS consist of a group of chemicals that have been used to make non-stick, stain resistant, and water repellant products, chemicals that were used in fire-fighting foam. Another "emerging contaminant", 1,4-dioxane, although not classified as one of the PFAS, has been used a stabilizer in solvents, paint strippers, greases, and waxes. Studies have found that human exposure to PFAS and 1,4-dioxane (by ingestion) can have serious health impacts on liver and thyroid function, pose risks to developing fetuses, and, yes, PFAS have been linked several types of cancers. In short, these contaminants are bad for us and the environment, until recently, the federal government had been relatively quiet on dealing with these chemicals. Even with the federal government planning to act on PFAS, state governments will need to lead the way and take action on protecting human health.
Next, a quick explanation of MCLs
Maximum Contaminant Levels, or MCLs, are drinking water standards for specific contaminants. The lower the MCL for a contaminant, the less of that contaminant is allowed in our public drinking water. Once an MCL is established, it creates a legally enforceable standard that requires water systems to monitor, report findings, and keep the contaminant below the level set. Exceedances of the contaminant must be reported to the public, and mitigated.
Now, for the recommendations...
New York State's Drinking Water Quality Council (DWQC) consists of 12 nonpartisan and impartial professionals from various areas, including academia, government, and public drinking water systems. Members of the DWQC are considered experts in drinking water and water resources, and have backgrounds in environmental engineering, toxicology and health risk assessment, among other areas. Current members include distinguished professors from Columbia University's School of Public Health and Rensselaer Polytechnic's Fresh Water Institute, as well as the Superintendents of several public water systems, and the commissioners of New York's Departments of Health and Environmental Conservation.
In December 2018, the DWQC recommended an MCL of 10 parts per trillion (ppt) for PFOA and 10 ppt for PFOS (types of PFAS). If adopted, these would be the lowest and most aggressive MCLs in the nation for these types of contaminants. These levels consider the fact that all adults already have some degree of exposure to these and other related chemicals. Note that the State has already invested millions of dollars through the State Superfund program to install granular activated carbon filtration (GACs) systems that have long been successfully removing PFOA and PFOS from impacted water supplies. So these recommendations shouldn't cause any immediate panic.
For 1,4-dioxane, the Drinking Water Quality Council recommended a first in the nation MCL of 1.0 part per billion (ppb). The State approved an effective new treatment technology for 1,4-dioxane called Advanced Oxidative Process (AOP), which is already being used by the Suffolk County Water Authority on Long Island.
How will New York fund the changes needed to meet these new MCLs?
Governor Cuomo announced $200 million in grant funding to help communities combat PFAS. In particular, $185 million will be used to upgrade drinking water treatment systems to combat PFAS in communities across the state. The remaining $15 million has already been awarded to communities pursuing system upgrades and innovative pilot technologies to treat these emerging contaminants. Additionally, the Department of Health, Department of Environmental Conservation, and the Environmental Facilities Corporation will provide technical assistance to communities to help assess system needs and apply for grant funding to combat PFAS.
What happens next?
The Commissioner of Health can either accept the recommendations or propose alternate MCLs. Proposing alternate MCLs would require going through the typical notice and comment process required by law. Once comments are assessed, the regulation would go into effect once published in the New York State Register. If the Commissioner of Health accepts the recommendations, the Department of Health has indicated that it would put the proposed MCL up for a 60-day public comment period (as opposed to the typical 30-day period) and solicit input from interested stakeholders and the general public, before promulgating final rules. Finally, once the regulations are promulgated, public water systems of all sizes would need to test their water to see if they already comply with the adopted MCLs.
We are proud of New York for taking the lead on ensuring citizens have access to clean drinking water. To learn more about New York's most recent actions, visit the Department of Health's press release here.
For more information on the emerging contaminants or if you believe New York's MCL recommendations will impact your business, call the attorneys of Periconi, LLC at 212-213-5500.