PFAS State Snapshot: New York PFAS Regulation - October 2021

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New York regulates per- and polyfluoroalkyl substances (“PFAS”) in drinking water, consumer products, firefighting foam, Personal Protective Equipment (“PPE”), and recently proposed the regulation of PFAS in air emissions.

In addition to the regulations described below, the New York State Department of Environmental Conservation (“DEC”) released proposed ground and surface water guidance values for Emerging Compounds for PFOA (6.7 ppt) and PFOS (2.6 ppt). The DEC will prioritize incorporation of these guidance values for PFOA and PFOS into industrial wastewater discharge permits from certain facilities, so impacted “priority industries” should consider whether a comment is warranted. Significantly, DEC’s proposed restrictions are intentionally more stringent than the drinking water Maximum Contaminant Levels (“MCLs”) that have already been enacted. The public comment period on the new proposed limits lasts until November 5, 2021. Additional information, including details regarding how to submit comments, can be found on the DEC’s website.

This client alert reflects the status of PFAS regulations in New York as of October 14, 2021.

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Drinking Water

Summary: MCLs set concentration limits for contaminants in drinking water, and can potentially impact the sampling and discharge limits for individual facilities, as well as the clean-up standard both in publicly owned treatment works and in other drinking water systems.

Title 10, Subpart 5-1 of the Official Compilation of Codes, Rules and Regulations

 

https://regs.health.ny.gov/sites/default/files/proposed-regulations/Maximum%20Contaminant%20Levels%20%28MCLs%29.pdf

Food Packaging

Summary:

S 8817: Beginning on December 31, 2022, no person shall distribute or sell food packaging containing PFAS substances.

Children’s Products

Summary:

A 6296A: Manufacturers are required to report all amounts of PFOA or PFOS in any children’s products to the DEC.

Proposed Air Emissions

Summary: This policy document regulates process emission sources, including equipment at manufacturing facilities throughout the state.

6 NYCCR Part 212

https://www.dec.ny.gov/docs/air_pdf/dar1proposed.pdf

Firefighting Foam and PPE

Summary:

S 439A:

  • No person, local government, or state agency will discharge or use Class B Firefighting Foam for training purposes.
  • Beginning on December 23, 2021, manufacturers may not manufacture, sell, or distribute Class B Firefighting Foam, subject to some exceptions.
  • A manufacturer or other person that sells PPE to any person, local government, or state agency must provide written notice to the purchaser at the time of sale if the PPE contains PFAS substances.

A 09952: Incineration of a certain type of firefighting foam shall be prohibited in a city with a population between 16,000 and 17,000 and in a region designated by the DEC as an environmental justice area.

Release Notification Requirements

Summary: Releases of a hazardous substance (including PFOS and PFOA) must be reported by an employee, agent, or representative of the person who has knowledge of the release to DEC’s Spill Hotline within two hours after discovery of the release. Notably, this would include releases of AFFF that contains PFAS.

6 NYCRR 597

https://www.dec.ny.gov/docs/remediation_hudson_pdf/part597text.pdf

PFOS and PFOA listed as Hazardous Substances

https://www.dec.ny.gov/regulations/105074.html

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For more information on PFAS chemicals, and the regulatory and litigation risks that they pose, please visit our PFAS webpage.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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