Are Proposed State PFAS Regulations a ‘Grand Leap Forward’ or an Example of ‘Excessive Regulatory Caution’?

ALBANY, May 3, 2022 — New York is poised to take what one senior state official called “a grand leap forward” in regulating 23 PFAS-class chemicals in all public drinking water systems by early Fall.

An advisory panel on Monday urged the state Department of Health to set enforceable maximum contamination limits of 10 parts per trillion (ppt) on four PFAS compounds, while requiring public notification when 19 other variants combined exceed limits of 30-100 ppt.

The DOH is expected to apply those standards to draft regulations that are legally required to be published in the state register by June 19. After a 60-day public comment period and revisions, final rules must be published by Sept. 17. 

Environmental advocates and two members of the panel had pressed for more aggressive action.

“Excessive regulatory caution exposes all of us to more risk,” said Peggy Kurtz of Rockland County, where eight PFAS chemicals have been found in public tap water. “Let’s not make the same mistake as was made with lead and wait decades, thus exposing an entire generation.”

Kurtz urged the panel to regulate PFAS chemicals as a class, not as individual chemicals, and to set combined limits as low as accurate detection allows. 

Alok Disa, a researcher with Earthjustice, agreed and proposed a combined limit of 2 ppt for required remediation or notification.

But Kevin Durk, chair of the Long Island Water Conference, said regulating at the lowest detectable limit is a bad idea in part because “labs are struggling to keep up” with demands for PFAS tests. 

And Paul Granger, manager of the Hicksville Water District, cautioned that water customers may be alarmed at regulatory costs. He said the practical limits of lab capacity and accuracy raise “risks of unintended consequences.” He urged DOH to conduct a thorough cost-benefit analysis before setting aggressive new rules.

The state’s Drinking Water Quality Council voted 8-2 Monday to follow DOH staff recommendations for MCLs of 10 ppt for four compounds — PFHxS, PFNA, PFHpA and PFDA — and for notification levels of 30-100 ppt for any combination of 19 other chemicals.

Council members Sarah Meyland and Christopher N. Lake had proposed lowering the MCLs to 6 ppt and notification levels to 15-30 ppt, but they were outvoted.

In 2020, New York began requiring all water utilities to test for PFOA and PFOS (and 1,4-Dioxane) and to remediate through filtration when tests showed more than 10 ppt for either.

Those tests also revealed the presence of many more unregulated PFAS-class compounds, which may pose similar health risks. 

PFAS is shorthand for a class of more than 5,000 chemicals commonly used in household products such as nonstick cookware, stain-resistant rugs and furniture, food packaging, weather-repellent outdoor gear and cosmetics. They persist for years in the body and have been linked to cancer, liver damage and immune system impairment at concentrations measured in parts per trillion. Most Americans have traces of PFAS in their blood.

New York began addressing the risks in 2015 after dangerous levels of PFOA were discovered in private water wells around Hoosick Falls, 30 miles northeast of Albany.

The Cuomo Administration responded by creating the Drinking Water Quality Council and adopting enforceable limits of 10 ppt for PFOA and PFOS, two of the most common variants in the class.

This past winter, Gov. Kathy Hochul signed legislation requiring all water utilities to test for 23 other PFAS compounds that had turned up in testing for PFOA and PFOS. 

The law called for the DOH to set contamination levels for the 23 at which water utilities must notify their customers by letter, but it didn’t require remediation through filtration.

Even so, DOH staff concluded earlier this year that scientific data supported applying enforceable MCLs to four of the 23, while finding that mere public notification was sufficient for the other 19.

Environmental advocates were surprised and pleased by the DOH’s bid to go beyond the requirements of the law. But they the wanted more. 

“The more we learn about these chemicals, the more we realize how dangerous they are,” Rob Hayes, director of clean water for Environmental Advocates of New York, told the council Monday. “We want to see notification set at the lowest possible level — and a combined notification level. We would like to see that go down to 2 ppt…”

On Monday, the council’s recommendations to DOH closely tracked the DOH staff’s policy prescriptions. The DOH is widely expected to incorporate those council recommendations when it posts draft regulations by the legal deadline of June 19.

The DOH staff had poured over scientific analyses of health risks associated with each of the 23 PFAS compounds that the law compels the state to regulate. It also studied the accuracy of lab testing, which tends to drop sharply around concentrations of 2 ppt. 

DOH staffers told the council Monday that its recommended MCL and notification levels provided wide margins of safety for human health, based on the scientific evidence they had reviewed. They also gave assurances that labs would be able to keep up with demand from water utilities for PFAS tests.

Gary Ginsberg, director of the DOH’s Center for Environmental Health, chaired the council meeting for DOH Commissioner Mary Bassett, who did not attend. 

Ginsberg noted that a number of states, including New York, have set drinking water targets for only a handful of PFAS compounds so far. “To go from 3 in New York State to 23 is a big step, a grand leap forward,” he said.

He also touted a new publicly available database of testing results for PFOA, PFOS and 1,4-dioxane and promised that the agency would continue to add data as testing results become available.

Disa of Earthjustice called the public data link a “really important step forward,” but urged the DOH to promptly begin posting data that it already has for the 23 PFAS compounds that are about to be regulated. That data became available through previously required water utility tests for PFOA and PFOS. 

The council also voted 9-1 to urge the DOH to begin planning to require remediation based on combined MCL totals for several compounds (PFOA, PFOS, PFHxS, PFNA, PFHpA and PFDA).

Dereth Glance, a deputy commissioner of the Department of Environmental Conservation, proposed the idea, which gathered broad support on the panel. Stanley Carey, Massapequa Water District Superintendent, was the sole vote against it.