Public Comment Period Open for NYSDEC Proposed Guidance Levels for PFOA, PFOS and 1,4-Dioxane in Ground and Surface Water

Farrell Fritz, P.C.
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On October 5, 2021, the New York State Department of Environmental Conservation (“Department” or “DEC”) released water quality guidance values for three emerging compounds, PFOA, PFOS and 1,4-Dioxane (collectively, “Emerging Compounds”).  The comment period for the draft guidance values runs until November 5, 2021.  Comments can be issued to the Department at 625 Broadway, 4th Floor, Albany, NY 12233-3500, ATTN: Michelle Tompkins or by email to AWQVinformation@dec.ny.gov.

The proposed guidance values were developed and proposed in support of the continuing efforts to protect the State’s drinking water supplies from Emerging Compounds.  As stated by the Commissioner of the New York State Department of Health (“DOH”), “New York State has adopted among the most protective drinking water quality standards and requirements for testing, notification and remediation for emerging contaminants nationwide.  Our research and efforts to safeguard drinking water will be further enhanced by the Department of Environmental Conservation’s move to regulate these compounds at their source, providing even more confidence in the water quality that reaches your tap.”

According to the Department, Emerging Compounds are ubiquitous in the environment due to their widespread use, persistence and anti-degradation properties.  PFOA and PFAS are used in fire-fighting foams and consumer products for their ability to resist heat, oil, stains, grease and water.  They are found in, among other things, water-repellent clothing, furniture, adhesives, paint and varnish, food packaging, heat-resistant non-stick cooking surfaces and insulation of electric wires. 1,4-Dioxane is largely used as a solvent stabilizer for chemical processing, but other uses include consumer cosmetics, detergents and shampoos.

DOH routinely touts its adoption of the nation’s lowest maximum contaminant level (“MCL”) for Emerging Compounds. Notably, DEC’s proposed guidance values are even more stringent than the drinking water MCLs.  The Department’s purpose in establishing even more rigorous standards is, “to protect source waters and provide an extra margin of safety to complement the drinking water MCLs by ensuring they are not exceeded, which could result in costly treatment for the regulated community.”

The proposed ground and surface water guidance values for Emerging Compounds are as follows:

  • PFOA – 6.7 parts per trillion (ppt)
  • PFOA – 2.6 ppt
  • 1,4-Dioxane – 0.35 parts per billion (ppb).

To place these standards in context, the Assistant Secretary of the Navy (Energy, Installations and Environment) webpage describes ppb as, “the equivalent of one drop of impurity in 500 barrels of water or one cent out of $10 million.”  It describes ppt as, “the equivalent of one drop of impurity in 500,000 barrels of water or traveling 6 inches in the 93-million-mile trip towards the sun.”

The regulation of Emerging Compounds as hazardous substances in 2017 and the 2020 adoption of drinking water MCL for Emerging Compounds by the DOH triggered numerous, well-publicized disputes among water providers, contaminant manufacturers and property owners.  It will be interesting to monitor the development and anticipated promulgation of even more restrictive ground and surface water quality values and how the regulated community responds.

Those interested in commenting on the proposed guidance values should be sure to issue comments to the address listed above in advance of the November 5, 2021 deadline.

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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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