The New York State Department of Environmental Conservation (NYSDEC) is now requiring all sites entering into a state cleanup program to sample for two of the more popular and well-known “emerging contaminants” – 1,4-dioxane and Per- and Polyfluoroalkyl substances (aka PFAS) – in soil, groundwater, surface water, sediment, and, where applicable, biota. There is currently no requirement to sample soil vapor.
NYSDEC is also requiring similar sampling of any soil imported to a site, such as for backfill or a soil cap. According to the guidance, NYSDEC will evaluate the results on a site-specific basis to determine appropriate use.
The recently-issued guidance document, Sampling for 1,4-Dioxane and Per- and Polyfluoroakyl Substances (PFAS) Under DEC’s Part 375 Remedial Programs, is a significant expansion of the NYSDEC policy issued last year, which also required 1,4-dioxane and PFAS sampling at all sites in a state cleanup program, but only of groundwater.
Keep in mind that NYSDEC is still developing cleanup standards for the majority of these contaminants, so the extent of the impact on the development and implementation of remedial strategies won’t be clear for a while. However, at minimum, the requirement to sample all environmental media (except spoil vapor) could have significant impacts on the cost, complexity, and duration of at least the investigation phase of remediation projects in New York, and may also complicate due diligence issues.
Stay tuned as we continue to follow these important developments impacting NYSDEC cleanup programs, as well as the ongoing developments in other states making moves towards regulating PFAS chemicals in the absence of federal drinking water or cleanup standards for the time being.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.