Posted on January 27, 2020 by Barry Needleman
New Hampshire, like many northeast states, is pursuing a concerted regulatory and litigation approach to address contamination from emerging contaminants in the so-called PFAS suite of chemicals, (per- and poly-fluoroalkyl substances). Over the last few years, the State has enforced cleanups at certain manufacturing facilities, and required the provision of alternative water supplies in several communities. Early in 2019, it began a rare, statutorily required rulemaking process to set drinking water and ambient groundwater quality rules for four chemicals – PFOA, PFOS, PFHxS and PFNA. The new rules were approved in July 2019.
In late May 2019, New Hampshire also filed suit against the manufacturers of AFFF, the firefighting foam used at military bases, airports and fire training facilities. This case was transferred to the AFFF multi-district litigation in South Carolina. In a separate case, the State sued 3M, Dupont and Chemours for alleged investigation and clean-up costs incurred under the parens patriae theory, among other claims. That case is in the initial stages of litigation.
Several plaintiffs (3M Company, a town water and sewer district, a sewage sludge disposal company and a farmer) challenged the new regulatory limits in Court. In October 2019, the court ruled that the State had failed to perform an adequate cost/benefit analysis as required by statute. Plymouth Village Water & Sewer District v. Scott, No. 217-2019-CV-00650, (N.H. Super. Ct., Nov.26, 2019). The final rules set standards that were 50-80% lower than the initially proposed limits, and the costs had increased by 1200%. The State conceded it could not determine the benefits from the lower limits. Consequently, the court issued a preliminary injunction, enjoining New Hampshire’s drinking water and groundwater quality limits. The parties are preparing interlocutory appeals to the New Hampshire Supreme Court. The case presents issues of first impression in New Hampshire, under its rulemaking statute and certain constitutional provisions limiting unfunded State mandates.