Senate Bill Prods Department of Health To List 30 Toxic Chemicals and Require Small Water Utilities to Test for Them

ALBANY, May 6, 2021 — A bill requiring all New York water utilities, regardless of size, to test for 30 harmful chemicals, including several newer PFAS compounds, has won state Senate approval and appears headed for an Assembly floor vote.

The legislation, which addresses the state Department of Health’s failure to implement a 2017 state law, follows recent state “Do Not Drink” orders in the Village of Mayville in Chautauqua County and several schools in Westchester and Dutchess counties.

The goal of the bill (S1759) is to close a long-standing loophole — exposed by the 2015 Hoosick Falls drinking water crisis — that affects about 2,000 of the state’s smaller water systems. Those utilities serve about 2.5 million New Yorkers who are in the dark about dangerous contaminants that larger water systems already screen for.

For years, DOH Commissioner Howard Zucker and Basil Seggos, commissioner of the state Department of Environmental Conservation, have acknowledged the urgent need to close the testing gap.

In September 2016, Zucker and Seggos castigated the federal Environmental Protection Agency for failing to include water systems serving less than 10,000 people in its mandated testing for more than two dozen harmful chemicals.

“Why should people who live in areas served by public water systems below this threshold be treated as second class citizens — does their health and safety not warrant the same protection as everyone else?” the New York commissioners wrote to the EPA in the closing weeks of the Obama Administration. 

Zucker and Seggos urged with the EPA to act swiftly, and they promised state action if it declined to do so. Meanwhile, Gov. Andrew Cuomo publicly promised to close the testing loophole.

That led to the state’s Emerging Contaminant Monitoring Act of 2017, which directed the DOH to create and regularly update a list of emerging water contaminants that closely mirrors the full federal list that applies to large water utilities. All water utilities, regardless of size, were supposed to test for them.

But four years later, the DOH still hasn’t drawn up that full list of contaminants, many of them new variants in the PFAS class of chemicals developed to make stick-resistant household products ranging from cookware to upholstered furniture.

Instead the Cuomo Administration, guided by its Drinking Water Quality Council, has focused on two of the most common and dangerous compounds in the PFAS class: PFOA and PFOS. It has established strict maximum contaminant limits (MCLs) for those two chemicals as well as for 1,4-dioxane. All the state’s water systems have recently tested for those three compounds. Testing by the smallest utilities began in February, leading to the Do Not Drink orders at the Westchester and Dutchess schools.

DOH spokesperson Erin Silk said the drinking water council continues to evaluate emerging contaminants and to recommend specific action by the department. “While the proposed legislation readdresses much of what is already underway in New York, we are reviewing it,” Silk said. “The very spirt of this legislation is working as intended.”

The 2021 bill that passed the Senate by a 52-10 vote April 27 carries out the intent of the 2017 law by including a specific list that the DOH would have to adopt within 30 days.

Sponsors of the bill said action is needed because dangerous new PFAS chemicals are being released regularly.

“There are chemicals showing up in drinking water supplies in other parts of the country that are being used to replace PFOA, known as GenX chemicals. New York needs to be ahead of the curve to ensure these replacement chemicals, which are suspected to be equally as dangerous as PFOA, are not polluting New York’s drinking water supplies.”

One of those GenX chemicals, PFNA (perfluorononanoic acid), recently appeared in three of the four wells that serve the Village of Mayville in Chautauqua County at levels ranging from 75 to 330 parts per trillion. The state’s MCL for both PFOA and PFOS is 10 parts per trillion.

In a “Do Not Drink” advisory issued Dec. 10, the DOH warned village water customers not to use the water for drinking, cooking, food preparation, tooth brushing, or for animal consumption. The agency said it was OK to use it for showering or washing dishes. (Boiling water does not remove the chemicals.)

By relying on water from the cleanest well, officials were able to reduce PFNA in the town water tank to levels ranging from non-detectable to 59.5 ppt on Dec. 21. Three days later, DOH said the village water was safe to drink. 

In March, the DOH issued Do Not Drink orders at two elementary schools in Westchester County and a middle/high school in Dutchess County after their water tested well above the state MCLs for PFOA and PFOS.

Drinking water at Meadow Pond Elementary in Westchester reportedly showed levels of PFOS in the “low 100s” ppt and levels of PFOA at twice that level. Officials said they had placed warning notices on school faucets and planned to install a carbon filter on a faucet that supplies all water in the school kitchen. 

The Dutchess County school in Dover Plains showed PFOS levels of 20 ppt and PFOA of 60 ppt. 

Those school districts are only required to test for PFOA, PFOS and 1,4-dioxane, not the more extensive list that the 2017 law called for and that the pending Senate bill would require.

“The DOH still hasn’t committed to a timeline” for testing for the longer list of emerging chemicals, said Robert Hayes, director of clean water for Environmental Advocates of New York.

Hayes said he could not explain the agency’s failure to act because testing is neither burdensome nor especially expensive. And funding is available for “the smallest, neediest” water systems, he said. (However, the DOH has estimated that certain small water systems may have to spend hundreds of thousands of dollars for upgrades simply to comply with state limits for PFOA, PFOS and 1,4-dioxane.)

“Had DOH implemented the (2017) law, Mayville residents wouldn’t have been exposed to PFNA,” Hayes added.

The pending bill, sponsored by Sen. James Skoufis (D-Woodbury), appears on track to pass before the legislative session ends June 10, said Liz Moran, environmental policy director for New York Public Interest Research Group, or NYPIRG.

The measure may have gotten a boost from poll released last month that shows New Yorkers are even more worried about water quality than about climate change. The Siena College Research Institute poll that found that 64 percent of those questioned were “very concerned” about water pollution, compared with 56 percent for climate change.

“I think this bill has a great chance to pass this year,” Moran said.

In addition to expanding the scope of required water testing, Moran said, the DOH should work to improve its public communication. She said up-to-date water test results should be posted on an easily accessible agency website.

Hayes of EANY agreed. “It should not be so difficult to find out what’s in your water,” he said. 

Environmental groups and WaterFront have that found DOH routinely delays its responses to legitimate Freedom of Information Law requests — even requests for unambiguously public information.

For example, EarthJustice wrote DOH a July 23, 2020 email to complain about a string of delays in response to a straightforward request for data on the MCLs for PFOA, PFOS and 1,4-dioxane. “As the Committee on Open Government explained in a FOIL Advisory Opinion, ‘there is to provision in the statute for repeated extensions,’” EarthJustice wrote.

WaterFront has confronted the same issue in regard to a September 2019 FOIL request to the DOH for PFOA and PFOS testing data explicitly referenced in the NYS Register on July 24, 2019. 

Rather than asserting a legal reason for withholding the requested information,  the DOH has repeatedly postponed its response on the grounds that the request is “being reviewed for applicable extensions, legal privileges and responsiveness.”

Rosemarie Hewig, DOH records access officer, signed letters to WaterFront with that same boilerplate language on Oct. 2, 2019; Dec. 4, 2019; Feb. 10, 2020; Apr. 14, 2020, Aug. 20, 2020, Oct. 26, 2020, Jan. 4, 2021, and Mar. 11, 2021. 

Silk, the DOH spokesperson, did not respond this week to the question: “Should SB1759 pass and be signed into law, what steps would the DOH take to provide the public with access to the results of the tests? Would it consider posting results online?” Silk’s complete statement is here.

Moran of NYPIRG said arbitrary delays in responding to FOIL requests date back before the decade-long Cuomo Administration. “It’s not new, but it’s getting much worse,” she said.

The DOH employed the same delaying tactic when it refused to disclose data on nursing home residents who died of COVID-19, contributing to a Cuomo Administration crisis.

For example, in response to an August 2020 FOIL request by Empire Center for Public Policy for nursing home-related data, Hewig wrote in January that the DOH was “unable to respond to your request by the date previously given to you because the records potentially responsive to your request are currently being reviewed for applicable exemptions, legal privileges and responsiveness.”