Regulation of Polyfluoroalkyl Chemicals in New York

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds are also often referred to as “forever chemicals” because of their persistence in the environment. Manufacturers started phasing out the production and most uses of PFOS in 2002. In 2012 the Environmental Protection Agency (EPA) began requiring certain public water supply systems to monitor for several PFAS chemicals pursuant to the Safe Drinking Water Act. However, federal and state environmental agencies did little to regulate PFAS for several more years. However, in the mid-2010s, New York moved on multiple fronts to regulate PFAS. The Legislature has adopted several statutes, the New York State Department of Environmental Conservation (DEC) has promulgated regulations and issued guidance, and the New York State Department of Health (DOH) hasput in place Maximum Contaminant Levels (MCLs) for drinking water. All these actions are aimed at lowering exposure to PFOA and PFOS. At present, New York regulates PFAS in water, soil, air, food packaging, children’s products and fire-fighting foam. In this article we survey some of the key developments in this area and consider how these requirements are impacting site remediation, environmental permitting and environmental due diligence in New York