Regulation of perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) in soils under New York’s remedial programs was a little erratic in 2024. As to their inclusion in the New York State Department of Environmental Conservation’s (NYSDEC) regulations found at 6 NYCRR Part 375, PFOA and PFOS were in…until they were out. As to their inclusion in the NYSDEC Commissioner’s Policy (CP)-51, Soil Cleanup Guidance (CP-51), they were out…until they were in. Let me explain.
NYSDEC proposed soil cleanup objectives (SCOs) for PFOA and PFAS in a proposed rulemaking in December 2021. In response, NYSDEC received public comments both in favor of and against their inclusion in the regulations. In its revisions to the proposed regulations published on February 14, 2024, NYSDEC noted that SCOs for PFOA and PFOS are not included. NYSDEC noted that SCOs for PFOA and PFOS will be included in a separate rulemaking after it completes a rural background in soil study and reviews all available data. This suggested that the regulated community could breathe a sigh of relief, at least until these additional studies are completed and evaluated. NYSDEC, however, noted that in the interim, it would instead issue guidance values for PFOA and PFOS SCOs in a proposed draft of Commissioner’s Policy (CP)-51, Soil Cleanup Guidance (CP-51). As promised, on June 18, 2024, NYSDEC issued draft guidance in CP-51, which includes values for PFOA ranging from 0.00066 ppm (Unrestricted Use) to 0.6 ppm (Industrial Use) and PFOS ranging from 0.00088 ppm (Unrestricted Use) to 0.044 ppm (Industrial Use). NYSDEC accepted comments on the draft guidance until September 26, 2024. The soil guidance values in draft CP-51 can be found here. Many have argued that NYSDEC is attempting to adopt SCOs through guidance, rather than through the required regulatory process. They argue that NYSDEC should simply update the SCOs set forth in the regulations in the normal course, i.e. at least every five years consistent with ECL 271415.6(c). As both the proposed draft CP-51 and 6 NYCRR Part 375 have yet to be adopted, it remains to be seen exactly where things stand for SCOs for PFOA and PFOS in 2025, so check back for updates.