N.Y. Public Health Law § 1112: Emerging contaminant monitoring

§ 1112. Emerging contaminant monitoring. 1. Industry and modern

technology have created thousands of new chemicals that would not

otherwise exist in nature. Although some of these chemicals have proven

benefits, the effect of many such chemicals on human health is unknown

or not fully understood. Furthermore, with the advance of science and

technology, public health scientists and experts are able to identify

naturally occurring contaminants that pose previously unknown hazards to

human health. Where these chemicals or contaminants, collectively

referred to as "emerging contaminants," enter drinking water supplies,

they can present unknown but potentially serious risks to public health.

New Yorkers served by public water supplies have the right to know when

potentially hazardous substances contaminate their drinking water and

the department must be equipped to monitor and protect the public from

these emerging contaminants.

2. a. "Emerging contaminants" shall mean any physical, chemical,

microbiological or radiological substance listed as an emerging

contaminant pursuant to subdivision three of this section.

b. "Notification level" means the concentration level of an emerging

contaminant in drinking water that the commissioner has determined,

based on available scientific information, warrants public notification

and may require actions, which may include enhanced monitoring and

activities to reduce exposure, pursuant to this section.

c. "Covered public water system" shall mean: (i) a public water system

that serves at least five service connections used by year-round

residents or regularly serves at least twenty-five year-round residents;

or (ii) a public water system that regularly serves at least twenty-five

of the same people, four hours or more per day, for four or more days

per week, for twenty-six or more weeks per year.

3. a. The commissioner shall promulgate regulations to identify and

list substances as emerging contaminants that meet the following

criteria:

(i) are not subject to any other substance-specific drinking water

regulation of the department that establishes a maximum contaminant

level, maximum residual disinfectant level, or action level;

(ii) are known or anticipated to occur in public water systems; and

(iii) because of their quantity, concentration, or physical, chemical

or infectious characteristics, may cause physical injury or illness, or

otherwise pose a potential hazard to human health when present in

drinking water.

b. In determining what substances shall be listed as emerging

contaminants the commissioner shall, at a minimum, consider:

(i) unregulated contaminants monitored pursuant to the federal Safe

Drinking Water Act (42 U.S.C. § 300g-1) as amended from time to time;

(ii) substances that require regulation or monitoring when present in

drinking water in other jurisdictions outside the state of New York;

(iii) pesticide chemicals for which the United States environmental

protection agency has set human health benchmarks for drinking water;

(iv) substances found at sites in remedial programs located inside and

outside the state of New York, including but not limited to inactive

hazardous waste sites; and

(v) recommendations from the drinking water quality council

established pursuant to section eleven hundred thirteen of this title.

c. The commissioner shall, at a minimum, include the following

chemicals identified as emerging contaminants in the first list of

emerging contaminants: perfluorononanoic acid (PFNA);

perfluorohexanesulfonic acid (PFHxS); perfluoroheptanoic acid (PFHpA);

perfluorobutanesulfonic acid (PFBS); hexafluoropropylene oxide dimer

acid (HFPO-DA); Perfluorodecanoic acid (PFDA); Perfluorododecanoic acid

(PFDoA); Perfluorohexanoic acid (PFHxA); Perfluoroundecanoic acid

(PFUnA); 11-chloroeicosafluoro-3-oxaundecane-1-sulfonic acid

(11Cl-PF3OUdS); 9-chlorohexadecafluoro-3-oxanonane-1-sulfonic acid

(9Cl-PF3ONS); 4,8-dioxa-3H-perfluorononanoic acid (ADONA);

Nonafluoro-3,6-dioxaheptanoic acid (NFDHA); Perfluorobutanoic acid

(PFBA); 1H, 1H, 2H, 2HPerfluorodecane sulfonic acid (8:2FTS);

Perfluoro(2-ethoxyethane)sulfonic acid (PFEESA);

Perfluoroheptanesulfonic acid (PFHpS); 1H,1H, 2H, 2H-Perfluorohexane

sulfonic acid (4:2FTS); Perfluoro-3-methoxypropanoic acid (PFMPA);

Perfluoro-4-methoxybutanoic acid (PFMBA); 1H,1H, 2H, 2H-Perfluorooctane

sulfonic acid (6:2FTS); Perfluoropentanoic acid (PFPeA);

Perfluoropentanesulfonic acid (PFPeS).

d. The commissioner shall make regulations to list the following

additional substances as emerging contaminants; provided however the

commissioner may, upon review and recommendation by the drinking water

quality council pursuant to section eleven hundred thirteen of this

title determine not to include such chemicals as emerging contaminants

by January first, two thousand twenty-four: 1,2,3-trichloropropane;

chloromethane (methylchloride); 1,1-dichloroethane; bromomethane (methyl

bromide); chlorodifluoromethene (HCFC-22); vanadium; molybdenum; cobalt;

strontium; chromium-6; N-ethyl perfluorooctanesulfonamidoacetic acid

(NEtFOSAA); N-methyl perfluorooctanesulfonamidoacetic acid (NMeFOSAA);

Perfluorotetradecanoic acid (PFTA); Perfluorotridecanoic acid (PFTrDA).

Provided, however, the commissioner may, upon review and recommendation

by the drinking water quality council, determine not to include such

chemicals as emerging contaminants: testosterone; and 4-androstene-3,

17-dione.

e. The commissioner shall by regulation remove any substance from the

list of emerging contaminants upon adopting a maximum contaminant level

for such substance.

4. Every covered public water system shall test drinking water for the

presence of emerging contaminants at least once every three years

pursuant to a schedule determined by the department through regulation.

5. Every test conducted in accordance with this section shall be

conducted by a laboratory certified by the department pursuant to

section five hundred two of this chapter. Laboratories shall submit such

results electronically to the department, to any other health department

with jurisdiction over the covered public water system, and to the

covered public water system, in the manner prescribed pursuant to

section five hundred two of this chapter.

6. The commissioner shall promulgate regulations establishing

notification levels for any emerging contaminant listed pursuant to

subdivision three of this section. Any notification level established

pursuant to this subdivision shall be equal to or lower than any federal

lifetime health advisory level established pursuant to the federal Safe

Drinking Water Act (42 U.S.C. § 300g-1). If no federal lifetime health

advisory level has been established, the commissioner shall establish

notification levels based upon the available scientific information, and

may take into consideration recommendations of the drinking water

quality council established pursuant to section eleven hundred thirteen

of this title. Such notification levels shall be made easily accessible

to the public through a link that is posted on the department's website

and updated regularly.

7. Notwithstanding subdivision three of this section, the commissioner

may, by declaration, add any physical, chemical, microbiological or

radiological substance to the list of emerging contaminants established

pursuant to subdivision three of this section, establish a notification

level, and require testing for such substance, if the commissioner

determines that: (i) such substance poses or has the potential to pose a

significant hazard to human health when present in drinking water; (ii)

such substance was recently detected in a public water system and has

the potential to be present in other public water systems; and (iii) it

appears to be prejudicial to the interests of the people to delay action

by preparing and filing regulations. The commissioner shall, however,

promulgate regulations adding such new emerging contaminant or

establishing such notification level within one year of such

declaration. Such declaration shall clearly state where and the date by

which such testing must occur. After the commissioner promulgates

regulations adding such emerging contaminant, such regulations shall

supersede the declaration issued pursuant to this subdivision. Until

such notification levels are posted on the department's website pursuant

to subdivision six of this section, the commissioner shall post the

notification levels established by declaration on such website so that

they are easily accessible through a link to the public.

8. Whenever one or more emerging contaminants is confirmed to be

present in drinking water at concentrations at or above a notification

level established pursuant to this section:

a. the covered public water system shall notify the department within

twenty-four hours;

b. the covered public water system shall notify all owners of real

property served by the covered public water system in a time and manner

to be prescribed by the department, provided that in no event shall

notification occur more than ninety days after the presence of an

emerging contaminant at concentrations at or above a notification level

established pursuant to this section is confirmed;

c. the commissioner may directly notify such owners of real property

if it is determined that the public's interest would be best served by

such notification, or if the commissioner determines that the covered

public water system is not acting, or cannot act in a timely manner;

d. the commissioner may require that the covered public water system

take such actions as may be appropriate to reduce exposure to emerging

contaminants. If the commissioner determines that the concentration of

the emerging contaminant constitutes an actual or potential threat to

public health, based on the best available scientific information, the

commissioner shall consult with the commissioner of the department of

environmental conservation regarding any further action that may be

appropriate, including but not limited to actions pursuant to title

twelve of article twenty-seven of the environmental conservation law.

9. The commissioner shall work in consultation with the commissioner

of the department of environmental conservation to develop educational

materials, and may take into consideration recommendations of the

drinking water quality council established pursuant to section eleven

hundred thirteen of this title. Such educational materials shall be made

available through a link on the department's website that is easily

accessible to the covered public water system and the general public,

relating to methodologies for reducing exposure to emerging contaminants

and potential actions that may be taken to mitigate or remediate

emerging contaminants. Such link shall also include information relating

to notification levels established by declaration pursuant to

subdivision seven of this section and by regulation pursuant to

subdivision six of this section. The commissioner shall coordinate with

the United States Environmental Protection Agency to ensure that the

information available on the EPA's Drinking Water Watch website is

available to public water systems and that information available on the

EPA's Safe Drinking Water Information System is available to the public

through an easily accessible link on the department's website. The

website and such links shall allow, to the extent practicable, the

public to easily access information including but not limited to, basic

water system information, including system identification number, name

and type, department contacts, public notices, violations and

enforcement actions taken by the state and federal government. The

website and such links shall be monitored and updated regularly by the

department. The commissioner shall also provide the covered public water

system with information relating to potential funding sources provided

by the state and federal government for mitigation or remedial

activities, and to reduce the exposure to emerging contaminants.

10. Any owner of real property, including any owner's agent, to whom a

covered public water system has provided notification of the exceedance

of a notification level established pursuant to subdivision six of this

section, shall take all reasonable and necessary steps to provide,

within ten days, any tenants with copies of the notification provided by

the covered public water system.

11. The commissioner may promulgate regulations pursuant to which the

department may provide financial assistance for compliance with the

testing requirements of this section, to any covered public water system

upon a showing that the costs associated with testing drinking water in

compliance with this section would impose a financial hardship. Such

regulations shall, when prioritizing public water systems for

eligibility for financial assistance, incorporate provisions that give

preference to public water systems serving less than ten thousand

individuals.

12. The commissioner shall periodically review substances that have

been identified as emerging contaminants pursuant to this section and

determine if the department should establish a maximum contaminant level

for the substance. Such review shall occur, at a minimum, once every

three years.

13. The commissioner shall make draft regulations containing the first

list of emerging contaminants within one hundred eighty days of the

effective date of this subdivision and shall make regulations

implementing this subdivision within ninety days thereafter.

14. The commissioner shall make regulations updating the list of

emerging contaminants and their associated notification levels to

reflect the latest available scientific information at least once every

three years. The commissioner shall add new emerging contaminants under

subdivision three of this section at least once every three years.