MERRIMACK — A co-founder of Merrimack Citizens for Clean Water is outraged at a judge’s ruling that temporarily shelves strict new regulations on groundwater PFAS contamination.
“This is real; people are getting sicker,” said Laurene Allen, adding that while big corporations like 3M are fighting to stop regulations that might reduce their profits, Granite Staters are paying to clean up the pollution created by these companies.
Merrimack taxpayers are bearing the burden of the costs to make sure their public wells are filtered appropriately, she said.
Allen calls Merrimack “ground zero” for PFAS pollution.
“We have these corporations that are arrogant, and they think they are untouchable,” she said. “If they would come to the table and be responsible and be part of the solution — if everybody did this responsibly — that would be great. Unfortunately, it’s the liability and the future profits, and all of that kind of stuff — that’s what it really comes down to,” Allen said.
In his ruling, which becomes effective on Dec. 31, Merrimack County Superior Court Judge Richard McNamara wrote that the Department of Environmental Services had not conducted an adequate cost-benefit analysis when the department decided to regulate PFOS, PFOA, PFHxS and PFNA; DES lowered the acceptable levels to between 11 and 18 parts per trillion for these chemicals.
The stricter standards remain in effect until the end of the month.
On Sept. 30, Plymouth Village Water & Sewer District, Resource Management Inc., Charles G. Hansen and Tilton-based 3M sued DES to block the regulations, which were scheduled to take effect that day, arguing there was not enough public input and it was an unfunded mandate.
Shaina Kasper, a director for Toxics Action Center, said in response that the cost-benefit analysis is clear and the choice is simple: Either the state can regulate these chemicals or leave Granite Staters exposed to greater risk of cancer, diseases and the medical costs that come with it.
“The state has extensively proven that regulating these toxic chemicals will pay for itself in saving Granite Staters’ medical bills. This is a political decision to protect polluters rather than residents of New Hampshire,” Kasper said in a statement.
Mindi Messmer, of Rye, who is running for a seat on the Executive Council and is the co-founder of New Hampshire Safe Water Alliance, wrote the law creating the stricter standards.
Messmer said that despite this week’s legal setback, McNamara’s ruling contained some wins.
“The first thing that I want to mention is the other part of the ruling that says it is not an unfunded mandate, which is really important because we believe, and now the judge ruled, that the state does have the authority to set standards like this,” Messmer said.
Messmer said these chemicals were specifically chosen for regulation after their detrimental effects on unborn children and babies was scientifically recognized.
The Business & Industry Association of New Hampshire also opposes the new PFAS regulations, arguing that the state is legislating before science can back up setting stricter standards.
It has been three years since PFOA contamination was first discovered at high levels in the Merrimack region near Saint-Gobain Performance Plastics.
Rick Sawyer, Bedford town manager, said the new 12 parts per trillion standard for PFOA is down from the previously proposed number of 38 ppt, and down even more from the state’s earlier guideline of 70 ppt. A 400 ppt federal suggestion was used when the issue surfaced three years ago.
“These new standards are much lower than anything we have ever seen or really even talked about in the past,” Sawyer told the Union Leader last summer. “You can see how far down the standard has gone — 12 ppt is really 12 grains of sand in an Olympic-size swimming pool.”
Sawyer said the statewide cleanup could cost up to $190 million for water systems, but that number could be potentially more if communities have landfills that are polluting nearby wells.
“There has been no proposed funding as part of these rules,” said Sawyer, who called it a serious concern for the New Hampshire Municipal Association. “There is no funding, currently, for testing or for solutions or implementing water systems or treatment systems.”
DES is currently working with the state Attorney General’s office to determine next steps.
A motion to reconsider was filed on Wednesday, according to Allen Brooks, who is a senior assistant attorney general and chief of the Environmental Protection Bureau at the state Department of Justice.
Brooks said DES simply has to consider costs and benefits during its analysis of statutes. The department does not need to follow the standards set forth by the U.S. Environmental Protection Agency, for example.
“Rulemaking is different in various places. Requirements are different in various places. The state requirements are not the same as the federal requirements,” Brooks said.
The plaintiffs in the case argue that the EPA is developing standards for some of the same PFAS chemicals using a detailed and rigorous examination of costs and benefits, citing the federal agency’s guidelines for preparing economic analysis.
Gov. Chris Sununu said on Wednesday that he was keeping tabs on the situation and the state’s response.
“Ensuring Granite Staters, especially our kids, have safe drinking water is one of the foremost responsibilities of government — delay and inaction cannot be tolerated,” Sununu said in a statement.
If a motion to reconsider is not successful, the state may appeal McNamara’s ruling to the state Supreme Court.