New York Issues Notice of Proposed Rulemaking Setting Strict Limits for PFOA, PFOS and Dioxane

On January 22, the New York State Department of Health (DOH) issued a revised notice of proposed rulemaking establishing aggressive standards on the presence of three emerging contaminants in drinking water. The proposed regulations set maximum contaminant levels (MCLs) of 10 parts per trillion (ppt) for Perfluorooctanesulfonic acid (PFOS), 10 ppt for Perfluorooctanoic acid (PFOA) and 1 part per billion (ppb) for 1,4-dioxane. If adopted, New York State’s proposed MCLs would be the lowest in the nation, contributing to a trend of increasingly stringent regulation of these substances and creating high costs for compliance. The rule change would not only affect public water providers but also could have broad implications across the state, including for responsible parties at sites where PFOA, PFOS or dioxane may be present. The notice of proposed rulemaking triggers a 45-day public comment period on the proposed regulations, which expires on March 9, 2020.

Despite public comments on a prior notice of proposed rulemaking suggesting less stringent MCLs for these substances and a longer phase-in period, the revised regulations maintain the aggressive limitations on PFOS, PFOA and 1,4-dioxane levels and demand quick implementation with quarterly monitoring requirements that begin 60 days following adoption for larger public water systems. The recent revisions to the proposed regulations allow public water systems to request a deferral of up to two years, with the possibility of an extension, where the water system implements a corrective action plan. Such deferrals, however, must be requested within 90 days of the effective date of the regulations.

If adopted, nearly 9,000 public water systems in New York State will be impacted by the new regulations. Compliance with the regulations is anticipated to be costly. DOH estimates that capital and annual maintenance costs for systems that require remediation under the proposed rules for PFOS and PFOA will range from $25,000 to $15,000,000 per system, depending on system size. For 1,4-dioxane, DOH estimates that treatment costs will be $3,570,000 per system, with $150,000 in annual operation and maintenance costs. While the State provides certain infrastructure grant funding and investment programs, many smaller privately owned public water suppliers are not eligible for such programs.

New York’s proposed regulations are among a growing wave of states enacting drinking water standards and advisory levels in the absence of federal action. While EPA set monitoring requirements for PFOS, PFOA and 1,4-dioxane in drinking water between 2013 and 2015, and health advisory levels of 70 ppt for PFOS and PFOA in 2016, EPA has not established enforceable drinking water limits on these substances. New York’s aggressive stance on PFOS, PFOA and 1,4-dioxane adds another disparate regulatory standard in the emerging patchwork of state regulations of these substances.

For more information regarding developments relating to PFAS or other emerging contaminants, please contact the authors.