Smaller NY Water Systems No Longer Exempt: Adoption of Emerging Contaminants List Yields Expected Testing of PFAS

On December 23, 2021, New York Gov. Kathy Hochul signed a new amendment to the public health law that will create New York’s first emerging contaminants list, and expand the number of chemicals to be included—many of which are per- and polyfluorinated substances (PFAS). Some say this new law establishes New York as perhaps the strictest jurisdiction in the U.S. with respect to testing drinking water for PFAS. Under the new legislation, titled “An act to amend the public health law, in relation to establishing a list of emerging contaminants,” a number of new PFAS chemicals are added to the emerging contaminant list, such as perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), perfluoroheptanoic acid (PFHpA), perfluorobutanesulfonic acid (PFBS), perfluorodecanoic acid (PFDoA), and perfluorotetradecanoic acid (PFTA).

Legislators say that New York’s “emerging contaminant monitoring act,” enacted in 2017 (ECMA), was created with the intent to address a federal loophole in emerging contaminant monitoring. Although the U.S. Environmental Protection Agency, under the Safe Drinking Water Act, requires periodic testing for 30 unregulated contaminants suspected to be present in drinking water supplies–known as the Unregulated Contaminant Monitoring Rule (UCMR)–the testing is only required for public water systems serving 10,000 or more residents, and occasionally a limited sample of smaller systems.

Because of this so-called loophole, approximately 2.5 million New Yorkers that use smaller water systems do not have their water tested under the rule. In essence, smaller water systems were previously exempt from having to test their water. NY legislators say that by amending the ECMA “to require the inclusion of chemicals listed on EPA’s third Unregulated Contaminant Monitoring Rule (UCMR-3) that have already been detected in water systems in the state, New York will gain a better understanding of occurrence and exposure in the state, including in these smaller communities.” Gov. Hochul said of the law, “The creation of New York’s first emerging contaminant list … would provide the public with critical water quality information, protect public health, and inform the Department of Health on what chemicals need drinking water standards.” Under this new law, the full list of emerging contaminants will be published within 90 days, and the NY Department of Health must update the list every three years.

In parallel with New York’s new testing requirements, the U.S. EPA’s PFAS roadmap outlined a number of timelines and goals concerning testing on Effluent Guideline Limitations under the Clean Water Act (expected 2022 and ongoing), and increased monitoring, data collection, and research, including enhanced PFAS reporting under the Toxics Release Inventory. Significant legislative and regulatory changes concerning PFAS monitoring and testing continue to be explored and developed throughout the country. We will continue to follow these developments.