New York
began last year to require remediating parties to investigate whether
groundwater at their sites was contaminated with the emerging contaminants
1,4-dioxane and PFAS (i.e., per- and polyfluoroalkyl substances). (See our May
29, 2018 Blog Article NYSDEC
Requiring Site Owners To Investigate Emerging Contaminants.) Now, the
New York State Department of Environmental Conservation is broadening this
requirement by mandating investigation of the presence of these contaminants in
all environmental media, not just groundwater. This represents a significant
and costly expansion of the obligations of remediating parties in New York, the
scope of which is not yet clear.
The new requirements are embodied in a February 2019 guidance
document titled Sampling for 1,4-Dioxane and Per- and Polyfluoroalkyl
Substances Under DEC’s Part 375 Remedial Programs. The guidance specifically
requires any new site brought into one of New York’s remedial programs (e.g.,
the State Superfund Program and New York Brownfield Cleanup Program) to
incorporate sampling for 1,4-dioxane and PFAS into its investigation of soil,
groundwater, surface water, sediment, and, in certain instances, animals and
plants. However, it is not clear whether this new requirement will be applied
to sites already undergoing remediation. It also is not clear what remediation
will be required if emerging contaminants are identified at a site because New
York does not yet have cleanup objectives for many of the environmental media
that now must be sampled. As a result, and until cleanup objectives are
established, the extent of remedial activities required to address emerging
contaminants will be addressed on a case-by-case basis.
The guidance further requires that any soil imported to a site in
one of New York’s remedial programs must be tested for 1,4-dioxane and PFAS.
This includes soil imported for use as part of a cap or as backfill. In other
words, soil imported as part of remediation must be tested for emerging
contaminants even if the soil comes from another site that is not otherwise
required to conduct such sampling (e.g., from a site in another state
that doesn’t require investigation of these emerging contaminants). The risk of
finding emerging contaminants at a site that is not otherwise required to
sample for them may dissuade such sites from sending fill to remediation
projects in New York and may make it difficult for New York projects to obtain
necessary fill.
With this new initiative, New York continues to be at the
forefront of the regulation of emerging contaminants. While the initiative is
an aggressive attempt to protect human health and the environment from the
risks of emerging contaminants, it is likely to have a significant impact on
remediation projects within New York, whether or not such projects involve
emerging contaminants.
For more information, please contact any attorney in our Environmental Practice Group.
