In First Step Against PFAS Air Pollution, Cuomo Signs Bill Banning Incineration of Toxic Firefighting Foam in Cohoes

COHOES, Nov. 24, 2020 — Gov. Andrew Cuomo signed a bill Monday that permanently bans the burning of toxic firefighting foam at the Norlite LLC hazardous waste incinerator about 10 miles north of Albany.

The foam has been used and stored at dozens of airports, fire stations and other facilities across the Finger Lakes region and statewide. It is made with per- and poly-fluoroalkyl compounds, or PFAS, a class of persistent “forever chemicals” that can cause cancer, liver disease and other serious health problems.

While state and federal regulation of PFAS has focused on protecting drinking water, the Norlite bill addresses PFAS air pollution. 

Judith Enck

“It establishes a national precedent that other states should follow,” said Judith Enck, a former regional administrator for the Environmental Protection Agency. Enck tipped off Cohoes Mayor William Keeler in February that Norlite was burning the toxic material.

The Cohoes plant had secretly incinerated more than two million pounds of the PFAS-laden firefighting foam in 2018 and 2019, much of it under a five-year Pentagon contract with Norlite’s parent company, Tradebe Treatment and Recycling LLC. The contract has since been cancelled.

Norlite LLC’s plant in Cohoes, 10 miles north of Albany.

The Department of Defense accounts for roughly three-fourths of all firefighting foam used in the U.S., and some 200 military installations have reported PFAS-contaminated groundwater. 

After the Pentagon determined, several years ago, that the foam posed unacceptable health risks, it began seeking ways to dispose of its stockpiles. It turned to incineration.

According to a lawsuit filed in February by EarthJustice against the Department of Defense, Tradebe and others, the DOD entered into contracts that allowed toxic foam to be burned in a least eight incinerators across the county, including Norlite, without first performing legally required environmental reviews.

The state Department of Environmental Conservation said Tuesday it had obtained from Norlite a list of New York State facilities that sent it PFAS-laden firefighting foam to be burned. The list did not include the former Seneca Army Depot in Romulus, the most publicized PFAS hot spot in the Finger Lakes region, the agency said. 

At the DEC’s request, Norlite stopped burning firefighting foam late last year — months before city officials in Cohoes said they first learned about the practice. The town passed a moratorium against PFAS incineration in April, effective May 1.

Because of the extraordinary strength of their chemical bonds, PFAS do not burn easily. State and federal regulators acknowledge that they don’t know exactly how hot incinerators need to burn to totally eliminate them.  

“This is an urban area. We can’t have millions of pounds of firefighting foam being incinerated in an urban area if the effectiveness of the incineration is only 95 percent, or 99 percent,” Keeler, the Cohoes mayor, told a reporter for New York Focus.

In response to local alarm, state legislators introduced a bill that banned “incineration of aqueous film-forming foam (AFFF) containing perfluoroalkyl and polyfluoroalkyl substances in certain cities.” But provisions limiting application to cities with an “environmental justice area” and a population of between 16,000 and 17,000 restrict it solely to Cohoes. The Norlite plant is located near a public housing project subject to environmental justice protections.

The bill passed the state Senate and Assembly unanimously in June. 

Instead of signing it promptly, Cuomo floated an amendment that called from a state moratorium rather than a permanent ban. He wanted to allow the DEC leeway to permit foam incineration in the future, if it deemed the practice safe.

But the bill’s legislative sponsors and environmental groups insisted on the permanent ban, and Environmental Advocates of New York praised Cuomo for signing it into law Monday.

The DEC announced in July that it would test the soil and water around the Norlite facility for traces of PFAS. The agency later said tests it conducted with the state Department of Health have shown “no impacts to area drinking water since Norlite began receiving AFFF.”

The DEC’s on-site monitor at Norlite, Joe Hadersbeck, told New York Focus, an investigative news publication, that he knew firefighting foam was being burned at the site in 2018. Hadersbeck expressed skepticism about environmental threats that it posed and noted that company’s action was legal.

But DEC leadership apparently didn’t learn about the activity until months later. In a statement to The Intercept, the agency said it wasn’t aware of foam incineration until “late 2019.”

Norlite has said it strives to remain in compliance with all regulatory requirements.

“Norlite handled and disposed of the (aqueous film forming foam) pursuant to a contract with the U.S. Government and in compliance with all regulations and our permits,” a company spokesperson said. “We have no interest in any activity that federal and state regulatory agencies believe, based on sound science, would adversely affect the environment, our workforce or the local community.”

On Tuesday, the DEC released a statement to WaterFront concerning its regulation of PFAS. 

New York State has been a national leader in setting limits in public drinking water for two of the most common PFAS compounds, PFOS and PFOA. 

Public water systems across the state are required to take remedial action if tests show that either compound exceeds 10 parts per trillion in their public tap water. 

Systems with more than 10,000 customers were required to begin quarterly tests last month, while smaller systems have until February to begin testing. 

Spokesmen for water systems in Auburn and Canandaigua told WaterFront this week that their PFAS water tests results were “non-detect.” 

Last year, the DOH estimated that 645 water systems statewide would need to spend an average of $1.325 million on upgrades to comply with the new state limits. That was based on a sampling of 447 systems that showed 135 systems with combined PFOA and PFOS reading above 20 ppt.

The DOH has refused to identify those systems with high readings, depriving members of the public who drink PFAS-tainted tap water the chance to make informed choices about alternative water sources.

Exposure to PFAS chemicals may be even more risky in the midst of the Covid-19 pandemic. 

Recent studies link PFAS exposure to suppressed immune function and reduced vaccine effectiveness. The virus may be easier to catch, harder to shake, they suggest.

A study published in October by a group of scientists at the Harvard School of Public Health notes that higher levels of PFBA, a PFAS variant, in the blood were associated with increased severity of Covid-19 infections. After The Guardian reported on the study, the American Chemical Council raised questions about The Guardian’s reporting.

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