On Dec. 18, 2018, the New York State Drinking Water Quality Council, in consultation with the Departments of Health and Environmental Conservation, recommended drinking water standards for three so-called “emerging contaminants” – 1,4-Dioxane, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The recommended “maximum contaminant levels” or “MCLs” are one part per billion (ppb) for 1,4-Dioxane, and 10 parts per trillion (ppt) for PFOA and PFOS. The state announced in its press release that, if adopted, the new standards for these contaminants would be the “nation’s most protective.” The next step is for the Department of Health to issue a proposed rulemaking that will begin the formal process to adopt these new standards into law, something the agency is expected to initiate over the next 60 days. The proposed rulemaking will include a public comment period of at least 60-days. The expectation is that the Department of Health will formally adopt the new MCLs by the end of 2019.

The detection of 1,4-Dioxane, PFOA and PFOS in drinking water supplies around the state came to light from recent testing performed by water districts pursuant to a regulation promulgated by the Environmental Protection Agency in 2012. Section 1445(a)(2) of the Safe Drinking Water Act, 42 U.S.C. § 300j-4(a)(2), requires EPA to issue every five years a new list of no more than 30 unregulated contaminants to be monitored by public water systems. On May 2, 2012, EPA issued its third Unregulated Contaminant Monitoring Regulation, requiring public drinking water supplies to conduct monitoring for 29 previously unregulated contaminants, including 1,4-Dioxane, PFOA and PFOS. See 77 Fed. Reg. 25859, 26074 (May 2, 2012). Subsequent testing performed by water districts indicated the existence of these contaminants at relatively low levels in several drinking water supplies around the state, including in several water supplies on Long Island, and in Hoosick Falls, Newburgh and Plattsburgh.

The detection of 1,4-Dioxane, PFOA and PFOS in water supplies, in turn, caused the Cuomo administration to include in its 2017-18 budget the creation of New York State Drinking Water Quality Council, which was tasked with making recommendations to the Department of Health related to the regulation of emerging contaminants. See Public Health Law § 1113. 1,4-Dioxane, PFOA and PFOS were highlighted as examples of the types of contaminants to be regulated. Id. § 1112(3)(c). The council has since held public meetings regarding the regulation of these contaminants, most recently on Dec. 18, 2018, when it announced the recommended MCLs.

Once finalized by the Department of Health, the MCLs for 1,4-Dioxane, PFOA and PFOS will require the modification of treatment facilities around the state, at significant cost. For example, while 1,4-Dioxane is a volatile organic compound (VOC), traditional systems used to treat VOCs, like air strippers and activated carbon, cannot alone remove 1,4-Dioxane from water supplies. Reports show that installation of an Advanced Oxidation System that uses ultraviolet radiation and either ozone or hydrogen peroxide are effective in removing 1,4-Dioxane. By contrast, PFOA and PFOS are relatively easily removed by activated carbon systems. Water Districts in New York can apply for funding through the Environmental Facilities Corporation, which will provide up to 80 percent of the cost to fund these new systems.

In addition, the new standards are expected to impact landfill operations. For example, while 1,4-Dioxane is used as a stabilizer in some solvents, it is also included in personal care products, including detergents, dishwashing soaps, shampoos, cosmetics, deodorants, and body lotions. PFOA also comes from common household products, like non-stick pans, furniture, cosmetics, household cleaners, clothing, and packaged food containers. PFOS is used as a fabric protector and is often included as an active ingredient in fire-fighting foam. Since each of these contaminants is included in household products, one can expect they will also turn up in landfill leachate, which is typically treated on-site or taken off-site to be disposed at a sewage treatment plant. The New York State Department of Environmental Conservation is in the process of conducting a study to determine the prevalence of these contaminants in landfill leachate around the state.

The new MCLs are also expected to impact the investigation as well as remediation of hazardous waste sites and Brownfield sites. The standard for 1,4 dioxane is lower than the ambient water quality standards for other common solvents observed in New York state waters (most of which are set at 5 ppb), and the standards for PFOA and PFOS are significantly lower than 1 ppb.

Thus, they are predicted to increase the scope of site remediation projects where such measures are identified as feasible and where the source is identified as existing at the hazardous waste site.

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Photo of Steven C. Russo Steven C. Russo

Steven C. Russo co-chairs the Environmental Practice and chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, energy project siting, renewable energy, Brownfields

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Steven C. Russo co-chairs the Environmental Practice and chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, energy project siting, renewable energy, Brownfields redevelopment, toxic tort litigation, including emerging contaminants, environmental crimes, government law and policy and the environmental review and permitting, environmental due diligence and risk management, and the environmental components of land use and real estate law. Steven is equally experienced litigating in federal and state courts, as well as counseling his clients with regard to the development of major industrial, energy and residential development projects. He also practices election and campaign finance law.

Prior to joining the firm, Steven was the Chief Legal Officer of the New York State Department of Environmental Conservation. There, he supervised approximately 90 attorneys in Albany, as well as the agency’s nine regional offices. He also supervised the agency’s legislative affairs department and Office of Environmental Justice. At the agency, Steven initiated a reform of the state’s environmental impact review regulations and assessment forms, completed the issuance of new power plant siting regulations pertaining to environmental justice and carbon emissions, and revised the agency’s environmental audit policy.

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Photo of Robert M Rosenthal Robert M Rosenthal

Robert (Bob) Rosenthal focuses his practice on environmental and energy law matters, including litigation in federal and state courts, regulatory permitting, and contract negotiations. He represents major companies on matters involving the Public Service Law, the Federal Power Act, the Natural Gas Act,

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Robert (Bob) Rosenthal focuses his practice on environmental and energy law matters, including litigation in federal and state courts, regulatory permitting, and contract negotiations. He represents major companies on matters involving the Public Service Law, the Federal Power Act, the Natural Gas Act, the State Environmental Quality Review Act (SEQRA), and New York’s Tidal and Freshwater Wetland Acts. Robert also handles the governmental, environmental, and energy aspects of land use and real estate transactions. His clients include electric generation facilities (traditional power plants, solar and wind energy), gas pipelines, solid waste landfills, and other energy infrastructure projects.

Bob has worked on numerous regulatory actions pending before New York Public Service Commission, including those related to the planning and siting of electric transmission, power plants and gas infrastructure, wholesale electricity markets, electric and gas retail utility rates, and the regulation of telecommunications. Bob also represents clients before town planning boards for special permits, particularly for renewable energy projects, and guides clients through the Public Service Law Articles 8 and 10 siting processes. He has represented energy clients before the New York Independent System Operator, PJM, and the Federal Energy Regulatory Commission. His litigation experience includes obtaining trial- and appellate-legal decisions under the Clean Air Act, obtaining dismissals of Article 78 petitions challenging SEQRA processes, securing permanent injunctions on First Amendment grounds, obtaining waivers under NYISO tariffs to preserve wind energy projects in interconnection queues, and defending CERCLA counterclaims against Eleventh Amendment challenges.

Bob served as general counsel for the New York Public Service Commission and Department of Public Service, overseeing more than thirty attorneys and advising on legal matters related to energy, utilities, and telecommunications. He led teams in drafting key PSC orders on renewable energy, transmission planning, and affordability programs, and developed a new utility enforcement unit. Robert also integrated the Office of Renewable Energy Siting into DPS, expanded its authority, and supervised all PSC litigation, preparing commissioners for monthly meetings.

Bob’s experience includes serving as senior counsel in the New York Attorney General’s Environmental Protection Bureau, where he represented the state in major federal and state court cases and handled regulatory enforcement, settlements, and appellate briefs, including landmark Clean Air Act actions. In the Governor’s Counsel’s Office, he advised on energy, environment, and agriculture policy, drafted and negotiated key legislation and budget bills, supervised major litigation, and contributed to strengthening utility oversight and environmental regulations.

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