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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

July 21, 2020

NYS Maximum Contaminant Limits for PFOA, PFAS, and 1,4 Dioxane Are Imminent

After three years of investigation, the NYS Public Health and Health Planning Council appears to be scheduled to vote on July 30 regarding maximum contaminant limits (MCLs) for the first three identified emerging contaminants in drinking water: Perfluorooctanoic acid (PFOA), Perfluoroalkyl substances (PFASs) and 1,4 Dioxane. The absence of MCLs has been seen as a barrier to litigation.

The drive toward MCLs for these three chemicals was triggered by the PFOA and PFASs found in the drinking water supply for Hoosick Falls and the 1,4 Dioxane found in the principal aquifer for Long Island. At the time these three chemicals were discovered in the water supplies, neither the New York State nor the US Environmental Protection Agency (EPA) had MCLs or water-quality guidance for them.

The NYS Legislature passed a law in 2017 that included the authority for the NYS Public Health and Health Planning Council to set MCLs for these three contaminants as well as authority for the NYS Department of Health (NYSDOH) to require water systems serving fewer than 10,000 people to test for PFOA, PFASs,  1,4 Dioxane, and other emerging contaminants.

The proposed limits are 1 part per billion for 1,4 Dioxane, 10 parts per trillion for PFOA, and 10 parts per trillion for PFASs. These proposed MCLs are far stricter than the non-enforceable, non-regulatory health advisory of 70 parts per trillion the EPA promulgated in 2016. Environmental groups have pushed for more stringent limits, and the EPA responded by initiating, on February 20 , the process to establish a federal MCL for PFASs and PFOA by issuing a pre-publication notice of a proposed regulatory determination to develop drinking water standards. So, there’s  no guarantee that the proposed limits will become the actual NYS MCLs or that there won’t be more stringent federal MCLs.

The expected vote on the MCLs is seen as an opportunity for potential plaintiffs to use them as a measuring stick against which to judge their exposure to PFOA, PFAS, and 1,4 Dioxane, and mandatory water-supply testing will soon let them know what their current exposure is.

The proposed NYSDOH regulations require water systems serving more than 10,000 individuals to begin testing for PFOA, PFAS, and 1,4 Dioxane within 60 days of the establishment of the MCLs. Water systems with more than 3,300 customers but fewer than 10,000 will have 90 days to begin testing, while water systems serving less than 3,300 will get six months to complete testing for PFOA, PFAS, and 1,4 Dioxane.

The 2017 law also gives the NYS Department of Environmental Conservation authority to expend funds providing people with alternate drinking water supplies when a PFOA, PFAS, and 1,4 Dioxane is found in a drinking water supply.  However, NYSDEC is required to recover these funds from the owner of the property where the chemical compound originated.

Barclay Damon’s environmental and mass and toxic torts attorneys are available to assist you with preparing for litigation based upon your water system having inadvertently provided water containing PFOA, PFAS, or 1,4 Dioxane in excess of the new MCLs, or if you suspect that PFOA, PFAS, or 1,4 Dioxane contaminating a drinking water supply may have originated in part from your property.

If you have any questions regarding the content of this alert, please contact Tom Walsh, partner, at twalsh@barclaydamon.com; Carol Snider, Mass & Toxic Torts Practice Area chair, at csnider@barclaydamon.com; or Yvonne Hennessey, COVID-19 Response Team leader, chair of the Environmental and Lobbying & Election Law Compliance Practice Areas, and co-leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at yhennessey@barclaydamon.com.

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