The economic impact — both costs and benefits — of the issuance of low parts per trillion standards for nearly ubiquitous PFAS compounds is something that will become clearer as businesses, municipalities, water suppliers and communities act to comply with regulatory standards that require they test for and remove these substances down to trace levels in drinking water and environmental media. For now, regulatory standard setting is being conducted with an assumption of risk from almost any detectable level of exposure. This is based on uncertain and sometimes non-existent science and without thorough evaluation of economic costs (and who will bear them), and social and economic benefits.
These issues are front and center in New Hampshire, where on November 26, 2019, the Superior Court issued a preliminary injunction enjoining New Hampshire Department of Environmental Services (“NHDES”) from implementing final MCLs and ambient groundwater quality standards for four PFAS, based, in large part, on the court’s finding that the agency had not conducted an adequate cost-benefit analysis as required by statute.
In doing so the court stated:
[I]t would be absurd to assume . . . the Legislature intended that DES could responsibly carry out its Legislative mandate and impose millions of dollars in costs on citizens and municipalities in New Hampshire without assessing the benefit from doing so, and particularly, the benefit at the various levels [i.e., the MCL and AGWQS values] compared to the correlative cost.
The court stayed the effect of its order until December 31, 2019 to allow an appeal to the state Supreme Court. The parties filed an appeal and cross-appeal and the matter is now pending in the New Hampshire Supreme Court. The orders of the court and associated briefing can be found here.
In issuing final MCLs and ambient groundwater quality standards for four PFAS (PFOA, PFOS, PFNA and PFHxS) NHDES admitted:
As was the case for the initial proposal, the emerging nature of PFAS contamination limits the availability of certain information that would be needed for a complete quantification of all the costs and benefits that will result from adopting these rules. Examples of these limitations include not having extensive sampling data for all potential contamination sources and public water systems statewide and having an incomplete understanding of all the health impacts associated with exposure to these four PFAS.
NHDES Update on Consideration of the Costs and Benefits Related to Final Proposed Maximum Contaminant Levels and Ambient Groundwater Quality Standards, June 28, 2019.
New Hampshire further explained in the issuance of the standards that “lack of science identifying direct causality between health impacts and these compounds continues to limit quantification of benefit.” In the court proceeding, NHDES asserts that it has conducted the analysis required by law, based on the information available to it. The plaintiffs, including both a municipal drinking water supplier and 3M, argue that something more was required, especially as to quantification of the benefits of the standards compared to the expected costs. The municipal authority also contends that the standards represent an unfunded government mandate, a position the Superior Court did not adopt in its analysis.
The outcome of this case will have implications for all stakeholders in the move to regulate PFAS, even though it may turn on unique nuances of New Hampshire law. The subjects of the case are core challenges to issuance of, as well as the burden of meeting, parts per trillion PFAS standards – significant gaps in occurrence data and toxicology . That 3M (as the owner of a water system for its NH employees) is a party to, and is reported to be funding, the municipal authority’s appeal has raised eyebrows, but it is recognition that the burden of these new requirements can represent a significant challenge to water suppliers.