N.Y.'s New Laws Protecting Drinking Water From Emerging Contaminants

Last year at this time we explored how New York implements the federal Safe Drinking Water Act 42 U.S.C. §§300f to 300j-27) (SDWA). See Michael B. Gerrard & Edward McTiernan, “Role of Safe Drinking Water Act in Protecting Health,” N.Y.L.J., May 12, 2016. This year, New York’s budget was adopted against the backdrop of continuing drinking water challenges in Flint, Mich. and across New York state. As a result, significant changes in the way drinking water will be protected, monitored and mitigated emerged from this year’s New York state budget process. Although the Clean Water Bond Act grabbed most of the headlines, Gov. Andrew M. Cuomo also signed into law two new statutes plus several amendments to existing laws designed to place New York at the forefront of efforts to ensure that drinking water is safe. In adopting the Emerging Contaminant Monitoring Act (ECMA) and the Mitigation and Remediation of Certain Solid Waste Site and Drinking Water Contamination (the Solid Waste Site/Drinking Water Contamination Act) (Chapter 57 of Laws of New York, 2017, to be codified at §1112 of the Public Health Law (PBH) and Title 12 of the Environmental Conservation Law (ECL)), New York has signaled its intention to move beyond the existing federal SDWA requirements. These new laws have the potential to alter the landscape for many years to come. Today’s article examines some of the key provisions of these new statutes and considers the impact that New York’s approach might have on companies with past or present operations in the Empire State.

The ECMA

The ECMA is designed to ensure that public water supplies in New York are tested and that test results are promptly disseminated to customers of public water systems. On this level, the basic framework of the ECMA closely follows the federal SDWA, and water system operators will be familiar with its test and notification protocols. However, the scope of the ECMA is far broader. Under the ECMA, the owners and operators of public water systems must test both for compounds regulated pursuant to the SDWA and for “any physical, chemical, microbiological or radiological substance listed as an emerging contaminant.” New York’s list of emerging contaminants will be promulgated by the Department of Health (DOH), and there are a variety of ways that compounds can end up on the list. DOH is expected to monitor developments on the federal and state levels to identify candidate compounds. One additional mechanism for identifying emerging contaminants will be the newly created Drinking Water Quality Council. This 12-member public body shall, within one year of its initial meeting, recommend its first list of emerging contaminants as well as recommended testing regimes and notification levels. Notification levels are required to be set for all emerging contaminants based upon “available scientific information.” All Drinking Water Quality Council recommendations are subject to review by the DOH Commissioner. The workings of the council could prove to be controversial, and interested parties may want to carefully monitor its actions.