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DOH skips deadlines in law requiring regulations to limit PFAS in drinking water as EPA sounds alarm about risks

The state Department of Health continues to ignore its June 19 legal deadline for announcing draft regulations for limiting PFAS ‘forever chemicals’ in public drinking water even after federal regulators issued dire new warnings about their health risks.

The EPA last month proposed designating PFOA and PFOS hazardous materials, which, if finalized, could boost the agency’s ability to recover cleanup costs from polluters.

The DOH must “immediately” publish the draft regulations with stronger protections than those recommended in May by the state’s Drinking Water Quality Council, three dozen environmental groups demanded last week.

“The longer the delay, the longer New Yorkers will be exposed to harmful contamination when they turn on the tap,” the groups said in their letter to Gov. Kathy Hochul and state Health Commissioner Mary Bassett.

Meanwhile, a bill recently introduced in the state Legislature would require water treatment plants to test for PFAS chemicals in processed water they discharge into lakes, rivers and streams. 

And those who send industrial waste to those treatment plants would have to disclose known or suspected PFAS in their shipments.

“We need to … look at how these chemicals get into our drinking water in the first place. They weren’t there in nature,” said Assembly member Richard Gottfried (D-Manhattan). “This legislation for the first time is going to generate information on how these chemicals are (reaching) our surface water and eventually our drinking water.”

PFAS is shorthand for a class of about 5,000 man-made chemicals used in a wide range of common products, including non-stick pans, stain resistant furniture and waterproof gear. Even when present in only a few parts per trillion in drinking water, the compounds may cause cancer and/or harm the liver, kidneys and the immune system.

New York began regulating two common PFAS chemicals in response to a water contamination crisis in Hoosick Falls, 30 miles northeast of Albany, in 2015. 

The state currently limits PFOA and PFOS to 10 parts per trillion (ppt) in public tap water. All water systems must test for them and remediate if they exceed the threshold.

On May 2, the state’s Drinking Water Quality Council urged the DOH to apply the enforceable 10 ppt limit to four other toxicologically similar chemicals: PFHpA, PFHxS, PFNA and PFDA. The council also recommended that water customers be notified if any combination of six other PFAS compounds, including GenX, exceeded 30 ppt. 

The DOH has been mulling those recommendations (and other notification thresholds) since May. Its June 19 deadline to release draft regulations is specified in state law.

The law required final regulations — following the completion of a public comment period — to be posted by Sept. 17. Another deadline skipped.

Asked why the DOH missed its deadlines, Cort Ruddy, DOH director of communications, said Wednesday: “The draft regulations recommended by New York’s Drinking Water Quality Council are nearing the final stages of the regulatory approval process. In the coming weeks, we expect the notice of proposed rulemaking to be posted in the State Register, after which the proposed regulations will undergo a 60-day public comment period.”

While the DOH had been focusing on the water council’s recommendations since early May, the debate over appropriate thresholds shifted after the federal Environmental Protection Agency issued a dramatic new PFAS health warning on June 15.

The EPA said there is virtually no safe limit for PFOA or PFOS. It lowered its “health advisory level” from the 70 ppt set for each in 2016 to virtually zero (0.002 ppt for PFOS and 0.004 ppt for PFOA — more than a thousand-fold cut). It also lowered the health advisory level for GenX to 10 ppt.

Gov. Kathy Hochul and DOH Commissioner Mary Bassett

Current testing technology only allows reliable results down to 2-4 ppt. 

The environmental activists urged in their letter to Hochul and Bassett that the state’s remediation limits for PFOA and PFOS be lowered from 10 ppt to 2 ppt, or the “lowest level that can be reliably quantified.”

They also argued that the 2 ppt limit should apply to five other chemicals — the four targeted by the council in May and GenX, which the EPA had earmarked. GenX is a substitute for PFOA, which, like PFOS, is no longer being manufactured.

Gottfried, chair of the Senate Health Committee, made the same recommendations to Bassett in an Aug. 12 letter co-signed by Steve Englebright (D-East Setauket), chair of the Assembly Committee on Environmental Conservation.

Assembly member Richard Gottfried

The letter from the activists was drafted by Rob Hayes of Environmental Advocates of New York, and signed by Anne Rabe of NYPIRG, Liz Moran of Earthjustice, Yvonne Taylor of Seneca Lake Guardian and more than 30 others.

They asserted that remediation costs borne by water treatment plants need not be passed directly to their water customers. 

They noted that New York is set to receive $150 million to treat contaminants in drinking water through the recently enacted federal infrastructure bill. And the state recently committed $225 million for water infrastructure.  

In the Finger Lakes, the former Seneca Army Depot near Romulus is probably the region’s most notorious PFAS hot spot. Firefighting foam was made with PFOA, and test wells near a former firefighting training center at the depot showed PFOA levels as high as 89,000 ppt

Local officials have expressed concern that a contamination plume from that site could reach Seneca Lake, the source of drinking water for tens of thousands of people.

The bill pending in the state Senate was introduced at least in part due to reports about leachate from landfills being sent to water treatment plants that don’t monitor PFAS. 

Waterfront reported in March that test data from 2018 showed leachate from four upstate landfills each contained several PFAS chemicals, each at well over 1,000 ppt.

Seneca Meadows, the state’s largest landfill located on the border of Waterloo and Seneca Falls, produced 76.7 million gallons of leachate last year. Most of that toxic waste was shipped to water treatment facilities that don’t monitor PFAS.

State Sen. Rachel May, sponsor of the pending “PFAS Surface Water Discharge Disclosure Act,” said her intent was to produce data about how PFAS chemicals are reaching the state’s surface waters and then its drinking water. Assembly member Anna Kelles (D-Ithaca) is sponsoring the measure in that chamber.

“People are going to be moving to New York because we have water, while water is drying up around the world,” May said. “If we don’t protect it and keep it pure and drinkable, then we are failing on our jobs.”

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