New York’s Landmark Water Testing Law Hinges on State Health Department

The law leaves key decisions to an agency with a history of dragging its feet on implementing water quality legislation.

Peter Mantius   ·   January 27, 2022
Health Commissioner Mary T. Bassett and Governor Kathy Hochul | Kevin P. Coughlin / Office of the Governor

This article was published in partnership with City & State.

Six years after New York health officials were caught flat-footed by a water contamination crisis in Hoosick Falls, the state is set to require what may be the most extensive drinking water testing program in the nation for the PFAS family of “forever chemicals.”

But the law’s impact will depend on the approach taken by the state Department of Health – an agency with a history of dragging its feet in implementing water quality legislation — and the state Drinking Water Quality Council that advises it.

All water utilities in the state will likely soon need to test for 23 PFAS compounds, which persist for years in the body and have been linked to cancer, liver damage and immune system impairment. A passed by the state Legislature in June would have gone even further, but chapter amendments pressed by Gov. Kathy Hochul, which the Legislature is expected to adopt this month, would trim the list of contaminants to minimize the cost of testing.

State Sen. James Skoufis, the bill’s sponsor, said even with that reduced scope, the law would make New York “No. 1 in the nation in terms of tackling emerging contaminants.”

The law does not set contamination thresholds for the 23 compounds – the levels at which the public must be notified. Instead, it gave that responsibility to the health department.

If history is any guide, that could be a problem, according to environmental and health advocates. Throughout Gov. Andrew Cuomo’s administration, the health department and the council showed little appetite for leading a regulatory crackdown on PFAS.

A 2017 state law authorized DOH to set enforceable maximum contaminant levels for three chemicals in drinking water, which the agency did. But that law also required DOH to develop a list of additional contaminants—and five years later, the agency still hasn’t named any. That means that today, utilities are still not required to test for those contaminants.

Robert Hayes, director of clean water for Environmental Advocates NY, said that half-decade of inaction was the impetus for last year’s bill. “The DOH and the council had dragged their feet for so long that the Legislature said, ‘We can’t wait any longer,’” he said.

The bill passed both chambers early last summer. Cuomo resigned in August, leaving Hochul with the choice of signing the legislation, vetoing it or negotiating changes. (Hochul did not respond to emailed questions for this article.)

She pushed to trim the list and extend the health department’s deadline for drafting rules, including contamination limits, from 90 days to 180 days after enactment. It was a far better deal Cuomo was likely to offer, Skoufis said.

“With the former administration, if anything was signed at all it would have been so watered down it would have been unrecognizable,” he said.

A checkered history

Cuomo and his then-health commissioner, Dr. Howard Zucker (who resigned a month after his boss), had a checkered history on PFAS contamination.

They took a public pounding for neglecting to promptly issue “do not drink” ordersas the Hoosick Falls crisis unfolded in 2015. But they later created the Drinking Water Quality Council and allocated generous state funding for remediation. Then, in 2020, the state set strict statewide tap water limits for two notorious PFAS compounds – PFOA and PFOS – requiring any water utility that exceeded the limit of 10 parts per trillion to remediate the contamination.

“Did they step up? I think they had to,” said Loreen Hackett, a Hoosick Falls cancer survivor turned activist whose blood was found to contain extremely high levels of PFOA.

“Cuomo called us alarmists at first. … Then they started calling Hoosick ‘Cuomo’s Flint.’

Excessive lead in drinking water in Flint, Michigan, set off national alarm bells in 2014 before a Hoosick Falls resident paid for private drinking water tests in response to the death of his father from kidney cancer. The tests showed dangerously high levels of PFOA, a result later confirmed by the federal Environmental Protection Agency and traced to corporate polluters, including Saint-Gobain Performance Plastics and Honeywell International.

Then-Gov. Cuomo and Health Commissioner Howard Zucker meet Hoosick Falls officials in 2016 | Office of the Governor

Statewide testing for PFOA and PFOS has uncovered new contamination, from Long Island to the Hudson Valley to western New York.

Those two compounds are among several thousand in the class of PFAS (perfluoroalkyl and polyfluoroalkyl substances). PFOA was created by DuPont and used to make Teflon, while PFOS was used by 3M in making Scotchgard. Both were largely phased out around 2015 after multiple studies confirmed their harm, but their chemical relatives are still widely used in a variety of household goods, ranging from nonstick pans and water-resistant jackets to carpets and cosmetics.

A decade ago, the EPA included several lesser-known PFAS compounds on a list of “emerging contaminants” and required large water systems to test for them. But any system with less than 10,000 customers – later reduced to 3,300 – was exempt.

New York officials slammed the EPA for limiting the tests to big water utilities.

“If testing were required (for smaller water systems), PFOA in the Village of Hoosick Falls water system would have been detected much earlier,” Zucker and Basil Seggos, commissioner of the state Department of Environmental Conservation, wrote federal officials in September 2016. “Why should people who live in areas served by public water systems below this threshold be treated as second-class citizens?”

The commissioners told the EPA they planned to seek state legislation “to protect the health of the estimated 2.5 million New Yorkers” served by smaller water utilities.

The Drinking Water Quality Council identified seven “high priority” emerging contaminants in October from the results of mandatory statewide testing for PFOA and PFOS. It recommended that the health department name them to the state’s first emerging contaminants list, but DOH has not yet done so. The law requires the DOH to begin a list with 23 contaminants, including the seven the council named in October. DOH said this week that it would work with the council to set “appropriate notification levels” for each listed contaminant.

“This unjustifiable delay has already had material consequences for New Yorkers,” Elizabeth Moran, a policy advocate for Earthjustice, wrote Hochul in November.

Moran noted that elevated levels of two emerging contaminants listed in the bill – PFNA and PFHxA – had triggered “do not drink” orders from the health department in 2020 and 2021. Public supply wells in Mayville in Chautauqua County showed PFNA at levels up to 290 parts per trillion, while tap water at Dover Plains schools in Dutchess County showed high levels of PFHxA.

But the health department still hasn’t set thresholds for either contaminant that would require public notification.

In December, the state Drinking Water Quality Council discussed recommending contamination levels for seven PFAS variants – 20 ppt for three of the seven chemicals and 200 ppt for the other four.

Environmental advocates favor much lower thresholds.

“Notification levels should be set as low as technologically possible – 2-5 parts per trillion,” Moran of Earthjustice told the council in December. “As science currently indicates, it’s very likely there is no safe level.”
Hayes said Environmental Advocates NY also favors the lowest technologically possible notification levels, but he urged the council to strictly avoid any notification level above 10 ppt.“Our drinking water standards for PFOA and PFOS are among the strongest in the country,” Hayes wrote in a recent letter to Dr. Mary Bassett, Hochul’s health commissioner. “We should not retreat from this national leadership when addressing other PFAS.”<

Legislating vs. regulating

The bill passed in June does not regulate the 23 emerging contaminants as strictly as the state currently regulates PFOA and PFOS. For those two, water suppliers that exceed the 10 ppt maximum contamination limit must formally notify their customers and remediate the problem. Those that exceed the notification limits for emerging contaminants, at whatever level the health department sets them, will only need to send letters of notification – they won’t actually be required to supply cleaner water.

Skoufis said he would have preferred to require the health department to set levels of contamination for the 23 contaminants at which it would require remediation. But he feared that would have jeopardized the bill’s chances of winning support. Instead, he hopes notification will push the public to demand remediation from local officials.

That hope may depend on how the notification letters are worded.

Peggy Kurtz, of the Rockland Water Coalition, said her group was “baffled” by the notice Suez Water New York sent to Rockland water customers in November 2020, after tests showed PFOA concentrations of 19 ppt, nearly double the 10 ppt threshold requiring remediation.

“Consuming drinking water with PFOA at or somewhat above the maximum contamination limit does not pose a significant health risk,” the company’s required notice told customers. “Your water continues to be acceptable for all uses.”

Suez said that was “required language” from the health department. The notice didn’t mention that seven other PFAS chemicals were also found in Rockland’s water.

In a statement responding to questions for this article, the department confirmed that the language in Suez’s response “is consistent with our templates.” The statement explained that it considered water at the levels detected in Rockland County, even though it required remediation, safe to drink: “Maximum contaminant levels or drinking water standards are set far below levels that cause health effects. These levels are set to also consider the availability of drinking water treatment technologies, the ability to accurately measure the contaminant, and the cost associated with removing the contaminant to acceptable levels. This is why with the exception of contaminants like bacteria, the water may be acceptable to use while actions are being taken by the water supplier to reduce levels.”

In 2016, the EPA set nonenforceable drinking water advisories of 70 ppt for PFOA and PFOS combined, thresholds well over the levels found in Rockland. But health advocates have argued that scientific data requires a limit of 1 ppt for the two compounds combined, as well as limits on all combined PFAS compounds.

In November, the EPA acknowledged that its current thresholds may be too high, noting “recent scientific data and new analyses that indicate that negative health effects may occur at much lower levels of exposure to PFOA and PFOS than previously understood and that PFOA is a likely carcinogen.”

The agency promised to update its health advisories and enforceable regulations for PFAS later this year.

Then Gov. Cuomo tours a water treatment plant in Hoosick Falls in 2016 | Office of the Governor

While environmental advocates are pressing the council and the state health department for lower notification limits, water utility officials said the council, not the Legislature, should take the lead on addressing PFAS.

“Better to regulate than legislate,” said Paul Granger, supervisor of the Hicksville Water District on Long Island and a member of the Drinking Water Quality Council.

Richard Passariello, the superintendent of the Roslyn Water District on Long Island, cautioned the council in December that “an unreasonable timeline will result in significant and more importantly unnecessary expenses to be incurred by water suppliers that could negatively impact the public.”

Skoufis acknowledged their point about testing costs for water suppliers, which run about $1,300 per sample.

He said that amendment negotiations with the Hochul administration led to an agreement to include $12 million in the state budget to cover testing, contracting and consulting costs for the state’s 2,196 water suppliers that have fewer than 1,000 customers.

Larger water suppliers will likely recover their testing costs by billing their customers.

The state Senate had already passed the chapter amendment bill, and Skoufis said the Assembly is expected to vote on it later this month. Skoufis credited Assembly Member Richard Gottfried, a Manhattan Democrat who sponsored the bill, as “instrumental from beginning to end” in the bill’s success, particularly during amendment negotiations.

If the amendments are adopted, as expected, the health department will be required to produce draft regulations for 23 emerging contaminants, including notification limits, within 180 days of adoption. Final rules would be required 90 days later.

The EPA has already recognized the harmful health effects of all 23 compounds found in the bill, and one water test is sufficient to screen for them all.

Fourteen other compounds listed in the original bill were dropped during amendment negotiations because they required a separate test.

Those additional compounds are scheduled to be added to the emerging contaminants list by 2024, but the bill allows the health department to remove any of them if they find the scientific justification lacking.

“The ball is certainly in the DOH court in terms of how expeditiously they choose to move forward,” Skoufis said. “Certainly the advocates and Gottfried and I will be pushing from the outside.”

In brief remarks to the council in December, Bassett said she had learned while working in Zimbabwe early in her career that safe drinking water is “one of the pillars of public health.” But she acknowledged that she had some catching up to do on PFAS regulations.

She promised to review the council’s recommendation to classify the seven PFAS compounds as emerging contaminants, but did not comment on the pending bill other than to note Hochul’s general commitment to transparency.

The council – which has only met 10 times since it was formed in 2017 and is composed largely of representatives of water utilities and state agencies – hasn’t set a date for its next meeting.

Asked if she had confidence that the Hochul-Bassett team would adequately address the PFAS threat, Hackett of Hoosick Falls said: “That remains to be seen.”

This article has been corrected to note that the state Drinking Water Quality Council has only discussed recommending contamination levels for seven PFAS variants, rather than having made those recommendations, and that limits for PFOA and PFOS were formally adopted in 2020, not 2019. Environmental Advocates NY’s position on notification levels has also been clarified.

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