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Assessment of Public Comment Summary - 6 NYCRR Part 597

Comments Received during Proposed Rule Public Comment Period for: 6 NYCRR Part 597 - Hazardous Substances Identification, Release Prohibition, and Release Reporting


This summary reflects the responses of the New York State Department of Environmental Conservation (DEC) to the main comments submitted by the public regarding the adoption of amendments to 6 NYCRR Part 597. This rule making was proposed on April 25, 2016 and included a 58 day comment period that ended on July 8, 2016. Public hearings were held in June 2016 in Albany, Rochester and Garden City, for a total of three public hearings, with an information session prior to each hearing. DEC received 40 comments during the hearings and from written submissions. Oral comments were received at the Albany and Garden City hearings, but none were provided during the Rochester hearing.

In this document, 'PFOA/PFOS' collectively means: perfluorooctanoic acid (PFOA-acid, Chemical Abstracts Service (CAS) No. 335-67-1), ammonium perfluorooctanoate (PFOA-salt, CAS No. 3825-26-1), perfluorooctane sulfonic acid (PFOS-acid, CAS No. 1763-23-1), and perfluorooctane sulfonate (PFOS-salt, CAS No. 2795-39-3).

Main Themes

1. Support of the Listing of PFOA/PFOS as Hazardous Substances

Five commenters indicated their support of listing PFOA/PFOS in Part 597, noting that their assessment of the substances causes them to support the classification as hazardous substances. DEC agrees with these commenters.

2. Challenge of the Listing of PFOA/PFOS as Hazardous Substances

One commenter stated that the information available regarding PFOA/PFOS does not indicate that they meet the regulatory criteria for classification as hazardous substances. The commenter specifically noted the following in support of its position:

a. Human exposures to PFOA and PFOS in the United States are declining and are low compared to historical occupational exposure levels and doses used in laboratory animal studies.
b. Human epidemiologic studies do not demonstrate that occupational or environmental exposures to PFOA or PFOS cause human health effects.
c. Animal toxicology studies conducted at high doses do not prove harm to human health.
d. The New York State Department of Health (DOH) did not conclude that exposure to PFOA or PFOS causes physical injury or illness to humans.

DEC disagrees with the commenter.

With regard to the first point, the issue of the level of exposure is not relevant to whether the substances meet the regulatory criteria for including chemicals on the list of hazardous substances.

With regard to the second point, the toxicities of PFOA/PFOS have been reviewed and summarized by numerous authoritative bodies which have determined that there is an association between increased PFOA/PFOS exposure and an increased risk for human health effects.

With regard to the third point, laboratory animal studies support human hazard identification, particularly when health endpoints associated with human exposures in epidemiological studies are also observed in exposed animals.

With regard to the fourth point, DOH concluded that, overall, the combined weight of evidence from human and experimental animal studies indicates that prolonged exposure to significantly elevated levels of PFOA or PFOS can negatively affect human health. Moreover, the United States Environmental Protection Agency (EPA) released updated editions of its Health Effects Support Documents in support of the lifetime health advisories issued by EPA in May 2016 for PFOA and PFOS. All of the summaries identify important studies on the health effects associated with exposure to these chemicals, including studies on chronic, developmental, and reproductive effects observed in humans and animals, and provide additional support for listing PFOA/PFOS as hazardous substances.

A draft report issued by the National Toxicology Program (NTP) provides additional support, concluding that both PFOA and PFOS are presumed to be an immune hazard to humans. Presumed hazards are one step below known hazards and one step above suspected hazardous on the five-step scale NTP uses for hazard identification.

Based on the review of human epidemiology and animal toxicology data for PFOA and PFOS, and DOH's conclusions that significantly elevated exposure to PFOA or PFOS can affect human health, there is sufficient information to conclude that PFOA/PFOS meet the criteria to be listed as hazardous substances.

In addition, PFOA/PFOS pose a threat to the environment by impacting the survival rate of fish when exposed to these substances.

3. Concerns with Firefighting Foam

a. Commenters expressed concern with allowing continued use of foam that may contain PFOA/PFOS through April 25, 2017.

Balancing the risks posed by PFOA/PFOS against the risks posed by fires in support of our mission to protect public health and the environment, DEC is allowing the use of firefighting foams that may contain PFOA/PFOS to fight fires that occur on or before April 25, 2017. DEC recognizes that facilities that possess supplies of firefighting foam need time to determine if their existing supplies of foam contain one or more of these newly listed hazardous substances and to make arrangements to dispose of and replace firefighting foam that contains PFOA/PFOS where the concentration of PFOA/PFOS is such that the foam cannot be used without causing a reportable spill (one pound of PFOA or PFOS). Allowing facilities that possess firefighting foam to continue to use foams that may contain PFOA/PFOS on a limited basis to fight fires furthers protection of public health and safety. DEC is not allowing use of firefighting foam that would result in a reportable spill of PFOA/PFOS for other purposes such as training. If firefighting foam containing PFOA/PFOS is used to fight a fire and there is a release of one pound or more of a hazardous substance, the release needs to be reported to DEC's spill hotline to allow DEC to determine if remediation of the release is necessary. DEC believes this is an appropriate approach that allows for the protection of the public and the environment.

b. A commenter expressed concern about economic and financial impacts on fire departments, fire districts, and municipalities which must determine whether firefighting foams contain PFOA/PFOS and dispose and replace PFOA/PFOS foams.

DEC understands the concern regarding costs to fire departments of determining whether foams contain PFOA/PFOS in concentrations such that the foams cannot be used without causing a reportable spill (one pound of PFOA or PFOS) and the costs of disposing and replacing foams. DEC has been working with the Fire Fighting Foam Coalition and the manufacturers of firefighting foam to make available information on foams that may contain PFOA/PFOS. In addition, DEC has posted a fact sheet on firefighting foam on DEC's website (see DEC believes the information in the fact sheet will minimize costs to fire departments in determining whether foams contain PFOA/PFOS and disposing of foams that contain PFOA/PFOS where the concentration of PFOA/PFOS is such that the foam cannot be used without causing a reportable spill (one pound of PFOA or PFOS). DEC is unable to provide assistance with costs associated with replacement of firefighting foam. In addition, the regulation seeks to minimize costs by allowing the use of such foam to fight fires until April 25, 2017, a year after the emergency rule went into effect.

c. The same commenter requested clarification regarding who will be responsible for the cost of the cleanup of any foam used for fire extinguishment.

DEC understands the concern regarding liability for cleanup costs associated with the use of firefighting foam. DEC will evaluate on a case-by-case basis the need for remediation of any release of PFOA/PFOS and who will be liable for cleanup costs.

d. Another commenter, a manufacturer of firefighting foam, noted that fluorine-free foams are now being developed.

4. Requests for Additional Action

While DEC understands the concerns raised by the commenters below, each of these additional actions goes beyond the scope of this rule making. Below is a summary of the requested actions and DEC's responses.

Commenters requested that DEC:

a. Regulate the disposal of PFOA/PFOS as hazardous wastes.
b. Regulate the discharge of PFOA/PFOS under the State Pollutant Discharge Elimination System (SPDES) and set effluent limits to non-detect.
c. Regulate the discharge of air emissions of PFOA/PFOS and set the reportable limit to zero pounds.
d. Require manufacturers of PFOA/PFOS to monitor the water, soil, and air within the communities where they do business, regardless of the size of the community.

These requested actions are beyond the scope of the current rulemaking, however, DEC may consider these issues in a future rule making or policy document.

Commenter requested that DEC:

e. Set a drinking water maximum contaminant level for PFOA/PFOS.
f. Require public water supplies be tested for the presence of PFOA/PFOS.

These requested actions are outside of the scope of DEC authority.

Commenter requested that DEC:

g. List all fluorinated chemicals in Part 597.
h. Review and list other emerging contaminants.

As DEC becomes aware of unregulated chemicals of concern, DEC will evaluate each such chemical to determine whether it is appropriate to classify it as a hazardous substance.

i. Commenter requested that DEC require remediation of other sites that are contaminated.

As DEC becomes aware of contaminated properties, DEC will evaluate appropriate response and remediation for these properties in the same manner that DEC addresses any other property that is contaminated by a hazardous substance. Companies that contaminate properties are among the parties responsible for costs associated with remediation.

j. Commenter requested that DEC collaborate with DOH, the New York State Department of State, and local governments to conduct communication campaigns to raise awareness about the effects of PFOA/PFOS.

DEC has provided and will continue to provide information to interested parties regarding DEC's efforts to address these issues.

k. Commenter requested that DEC communicate to the public the results of EPA's progress regarding its voluntary PFOA Stewardship Program.

EPA developed and administers the voluntary PFOA Stewardship Program. Information about this program is available on EPA's website at

l. Commenter requested that DEC hold Legislative Hearings on New York State's water quality.

Legislative hearings were held to address New York State's water quality.