New York Proposes Sweeping Superfund Changes for PFOS, PFOA Contaminants

By Rich Davenport, published December 24, 2021

The emerging contaminants, known as PFAS substances, has been the subject of growing concern, both Nationally and within New York, as more is learned about these toxic substances that were heavily used by several industries since the 1940’s, and has shown to cause many health problems in people, fish and wildlife, including causing several types of cancers, prompting action to protect communities from this emerging contminant.

On Thursday, December 23, 2021, the NYSDEC released a series of proposed changes to the NY Super Fund site cleanup regulations, to specifically address two specific substances in the PFAS family, PFOS and PFOA.

Emerging contaminants are those substances identified by the EPA as possibly harmful to human and wildlife health, demanding study to determine what these toxins may do when exposure through water or soil occurs. Concerns over these substances prompted study to begin in year 2000, with more information steadily learned since then, especially relating to PFOS and PFOA, but other substances are under examination as well. According to Federal Law, only the EPA can list dangerous contaminants,with the designation of “emerging contaminant” putting on the RADAR substances demanding concern or regulation to assure public health protection. These two specific chemicals, two of some 400 PFAS family chemicals that are water soluble, were commonly used in nonstick cookware (PFOS, also known as Teflon), and in waterproofing (PFOA, commonly known as Scotch Guard) treatments of fabrics, but have since been discontinued from use due to health problems that have been confirmed. Although not yet a regulated contaminant, the EPA does publish recommended safe levels for drinking water – a common source of exposure – at 70 parts per trillion. States, like NY, can craft stringent regulations that exceed the recommended guidelines, which NY has done earlier this year, setting safe levels in drinking water for these two chemicals at 10 parts per trillion (ppt).

“New York is a national leader in our commitment to address the threat of emerging contaminants and our sustained efforts to clean up legacy contaminants in communities statewide,” Commissioner Seggos said. “The proposed changes to New York’s regulations are instrumental in advancing DEC’s efforts with the latest science and data about public health and the environment while supporting the revitalization of former industrial sites to create economic opportunities and stronger communities.”

The proposed express terms of the regulations were summarized in the press release announcing these moves, as follows:

• Enhanced requirements for the Inactive Hazardous Waste Disposal Site Remedial Program (also known as State Superfund Program);
• Updates to the State’s Soil Cleanup Objectives (SCOs) to reflect the latest scientific input of experts at DEC and the New York State Department of Health. Revisions include the creation of SCOs for PFOA, PFOS, aniline, and nitrobenzene to reflect the designation of these chemicals as hazardous substances and codify existing guidance in regulation to provide the State with a greater ability to conduct enforcement against polluters; and
• Proposed changes, clarifications, and modifications to the regulations based on DEC’s experience during the first decade of implementing the Brownfield Cleanup Program.

The regulations carry a public comment period running through April 21, 2022, with two virtual hearings slated to be held at 2:00 PM on April 5, 2022, and another at 5:30 PM on April 7. New Yorkers are advised to visit the DEC website to register in advance to participate in the public hearings, or you may contact Jenn Dawson at (518) 402-9764 to request information by mail.

The public is invited to submit written comments on the revised proposed regulations through April 21, 2022, at 8 p.m. Written comments can be submitted by email to derweb@dec.ny.gov, noting “Comments on Proposed Part 375” in the subject line of the email, or by mail to the NYS DEC – Division of Environmental Remediation, 625 Broadway, Albany, NY 12233-7012, attention: Jenn Dawson.

The spotlight on PFAS contamination has intensified throughout 2021, after the Village of Mayville had their water supply shuttered due to PFAS contamination from firefighting foam, at the end of 2020. Since then, the DEC has announced changes to drinking water quality with new acceptable levels for PFOS, PFOA and 1,4 Dioxane, the announcement of a super fund cleanup settlement along the Buffalo River, with Honeywell Corporation, who purchased Allied Chemical and Buffalo Color Corp, after determining contamination and related damage came from the discharge of tainted process and cooling waters from their manufacturing facility on the banks of the Buffalo River, a practice that was done dating back to the early 1960’s. In late fall 2021, it was announced that a drinking water restoration plan had been developed for Hoosick Falls, NY, a community that has been suffering with PFOS contaminated water, a problem detected and confirmed in 2015.

NY is not alone with PFAS contamination concerns, with the State of Maine issuing am eat none order for deer harvested in the Fairfield area of the state, due to high levels of PFOS detected in deer, and the state of Michigan did similar things in 2018 after discovery of PFAS contamination in Clark’s Marsh, not far from an old air force base. An interactive PFAS contamination map is available online from the Environmental Working Group, which is updated periodically to add more known areas of concern in all 50 states and 2 US Territories. It is expected that more contamination sites will be identified over time.