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N.Y. Drinking Water Panel Recommends Stringent Limits for Three Emerging Contaminants

On December 18, the New York Drinking Water Quality Council recommended that the New York State Department of Health (DOH) adopt stringent new standards for the presence of three emerging contaminants in drinking water. The Council recommended that the State set maximum contaminant levels (MCLs) of 10 parts per trillion (ppt) for perfluorooctane (PFOS) and perfluorooctanoic acid (PFOA), and 1 part per billion (ppb) for 1,4-dioxane. If adopted in a final rule, the proposed MCLs would become the most stringent binding drinking water standards for these substances in the United States, and could set a precedent that other states may follow.

The Council’s recommendation to enact MCLs asks the State to take an aggressive stance towards these emerging contaminants. To date, EPA has not established any MCLs—enforceable limits on the concentration of substances in drinking water under the Safe Drinking Water Act (SDWA) for PFOS, PFOA, or 1,4-dioxane. Instead, EPA has only set (a) monitoring requirements for PFOA, PFOS, and 1,4-dioxane in drinking water; and (b) non-binding health advisory levels of 70 ppt for PFOA and PFOS. EPA has not issued any health advisory for 1,4-dioxane. In the absence of federal action, some states have begun setting their own drinking water standards or advisory levels. New Jersey, for instance, has proposed an MCL for PFOA of 14 ppt; Vermont has set a health advisory level of 20 ppt for PFOA, PFOS and three other per and polyfluoroalykl substances combined. No state has set an MCL for 1,4-dioxane.

Among other things, the proposed New York MCLs have raised some concerns about compliance costs. The Council’s presentation on the recommended MCLs estimated that complying with the MCLs for PFOA and PFOS would result in water systems incurring $855 million in capital expenditures, along with $45 million in annual operating costs. The panel also projected that compliance with the proposed 1,4-dioxane MCL would result in approximately $318 million in capital expenditures and $13.3 million in annual operating costs. As a result of these cost estimates, two Council members who supervise public water systems in New York that would be required to comply with these standards opposed one or both of the Council’s MCL recommendations.

The next step in the regulatory process is for the State Health Commissioner to publish a notice of proposed rulemaking that either accepts the Council’s recommendations or proposes alternate MCLs. The publication of the proposed rule will trigger a 60-day public comment period, which will be followed by publication of a final rule.

Beveridge & Diamond’s Water practice group develops creative, strategically tailored solutions to challenges that arise under the nation’s clean water laws. The firm’s attorneys have represented clients in a range of industries in project planning as well as in litigation and enforcement proceedings on issues arising from the growing convergence of water supply, use, and quality issues. For more information, please contact the authors.