In a previous post, we noted the New Hampshire Superior Court’s issuance of a preliminary injunction enjoining the New Hampshire Department of Environmental Services (NHDES) from implementing final maximum contaminant levels (MCLs) and ambient groundwater quality (AGQS) standards for four PFAS compounds.  On July 23, 2020, Governor Chris Sununu signed into law legislation that set maximum contaminant levels for drinking water (MCLs) for the four compounds:

In doing so, the Governor and the Legislature decided not to wait for State’s courts to resolve the appeal of the standards promulgated by NHDES.

That appeal and the preliminary injunction had turned on whether NHDES had conducted an adequate cost-benefit analysis. It appears from review of the fiscal notes associated with the legislation that the legislature considered, and acted on, the same financial information considered by NHDES, though the legislation also added funding to defray the impact.

Background

On November 26, 2019, the Superior Court of New Hampshire had issued a preliminary injunction enjoining NHDES from implementing the final rules that contained MCLs and Ambient Groundwater Standards for the four PFAS. The Court held that the appellants were likely to succeed on their claim that NHDES did not conduct an adequate cost-benefit analysis. The Court stated that the agency needed to do more than simply “consider” costs and benefits.

Following the November injunction, and likely in response to it, the New Hampshire legislature introduced HB1264 in early January 2020, which proposed to establish by statute the four new PFAS MCLs, and, among other things, to appropriate $50,000,000 to NHDES for the purpose of providing low-interest loans to community water systems and non-profit, non-transient public water systems for remediation efforts.

Notably, the fiscal note for HB1264 uses the same costs identified by NHDES in its cost-benefit analysis, which estimated treatment costs for public water systems ranging from $65 million to $142.8 and operating and maintenance (O&M) costs from $6.9 million to $13.4 million. As for “landfills, contaminated sites and groundwater discharge sites,” the fiscal note states that costs for compliance are “indeterminable,” but estimated “Corrective Action Costs” for different types of facilities such as “Active Hazardous Waste Sites” ($2.3 to $4.4 million), “Municipal Landfills” ($935k to $1.75 million) and “Groundwater Discharge Permit Sites” ($5 million). Again, these estimated “Corrective Action Costs” appear to be based on NHDES’ cost-benefit analysis, which had been found inadequate in the injunction proceedings.