When a legislative panel approved new limits on PFAS contaminants in drinking water recommended by the Department of Environmental Services, it set a disturbing precedent for rule making in New Hampshire.
Thankfully, some stakeholders recognized the threat and are fighting back.
Four entities — Plymouth Village Water & Sewer District; Resource Management Inc. of Holderness; 3M, which has facilities in Tilton and Salem; and a farmer from Center Harbor — recently filed suit against NHDES over implementation of the new maximum contaminant levels (MCLs) governing four PFAS (per- and polyfluoroalkyl substances).
Among other things, the suit alleges NHDES failed to provide adequate notice and comment period, failed to conduct a complete cost/benefit analysis, and imposed an unfunded mandate on municipalities in violation of the state constitution.
In recent years, the Business and Industry Association has followed regulation of emerging contaminants like PFAS closely and weighed in on many occasions. The fact is, no responsible business group, company or business leader opposes environmental regulations that are fair, sensible and justified. But that is not the case in this instance.
NHDES initially proposed PFAS MCLs last January that ranged from 23 to 85 parts per trillion (ppt). Until then, the state had followed federal health advisory guidelines of 70 ppt. (One part per trillion is roughly equal to a single drop of water in 20 Olympic-size swimming pools.)
BIA, along with many stakeholders, submitted detailed comments to NHDES about the effect these MCLs would have on New Hampshire businesses.
NHDES pressed forward with its final recommended MCLs for PFAS in late June, dropping them dramatically to a range of 11 to 18 ppt. That’s a whopping 50% to 80% lower than those originally proposed in January. Just three weeks later, in mid-July, the Joint Legislative Committee on Administrative Rules (JLCAR) approved the dramatically lower MCLs without taking any public comments (including BIA’s).
This was a shocking manipulation of a rule-making process that up to now has served the state exceptionally well. Without question, such a drastic change from NHDES’ initial proposed MCLs warranted an extended comment period to allow for input from affected stakeholders. Instead, JLCAR rushed approval through without taking any testimony. None.
The law allows JLCAR to limit testimony that focuses on policy, but many affected stakeholders were prepared to offer testimony on process, not policy. JLCAR’s own rules state anyone with relevant testimony on why JLCAR should object to a proposal “shall be heard.” Instead, one state representative told the Valley News the committee just assumed everyone in attendance was going to discuss the policy behind the rule and so they decided to take no public comments.
If JLCAR hadn’t stifled the process and BIA and other stakeholders had been allowed to speak, we would have explained the new MCLs lacked sufficient process from NHDES, a topic highly relevant for JLCAR meetings. Specifically, NHDES failed to adequately conduct a fiscal impact analysis as required by law.
As part of the requirement in setting MCLs, NHDES was required to weigh the benefits against the costs of setting a standard; however, the department could not quantify the health benefits of the proposed levels because of the evolving nature of the science behind PFOA, PFOS, and other emerging contaminants. There simply isn’t enough scientific evidence on these compounds to verify health risks or toxicity levels at the low levels NHDES recommended. Remember, one part per trillion is roughly equivalent to a single drop of water in 20 Olympic-size swimming pools.
New Hampshire’s MCLs for PFOA and PFOS, two PFAS chemicals, are now 12 and 15 ppt, respectively. Even if you consider the federal Environmental Protection Agency’s health advisory level at 70 ppt suspect, how about Denmark’s and Germany’s 100 ppt for both compounds, or the UK’s 300 ppt for each, or Canada’s 200 ppt for PFOA and 600 ppt for PFOS?
What is it that NHDES was able to discover that these countries could not?
The answer is that the PFAS MCLs were rushed through the process in response to political pressure. Despite the lack of sufficient, peer-reviewed scientific evidence, state regulators found a “Goldilocks number,” one that seemed “just right.” Science and process were put aside in the interest of appeasing the public as quickly as possible.
That sets a dangerous precedent for future administrative rule-making in New Hampshire. Will state administrative agencies now be able to push through rules with little consideration of costs or evidence of benefits? Such a process has never been acceptable in the Granite State before now.
Thankfully, those who filed their lawsuit recognize the danger that setting PFAS MCLs in this way poses. In filing the suit, the plaintiffs are helping to protect the principles that have always been integral to the successful running of New Hampshire government: ample opportunity for public input of policy decisions, driven by sound logic and proven facts.
If successful, this lawsuit will help preserve the open and inclusive government that New Hampshire citizens have come to expect.