11/27/19
Court Grants Injunction Against Enforcement of NH PFAS Drinking Water Standards

On November 26th, the Merrimack County Superior Court decided in favor of plaintiffs Plymouth Water and Sewer District, Resource Management Inc., Charles Hanson, and 3M Company in a challenge to the process by which the NH Department of Environmental Services (NH DES) adopted its standards for PFAS chemicals in drinking water. The suit was filed September 30th, the day the new lowest-in-the-nation set of enforceable PFAS drinking water standards became effective.

PFAS are a family of chemicals widely used in society that are coming under increased scrutiny and regulation. NEBRA has been proactively addressing potential concerns about PFAS in biosolids and residuals for the past ~3 years and has been concerned about the unintended consequences of well-intentioned but very strict regulations of PFAS. NEBRA filed a friend-of-the-court brief in support of the plaintiffs in this case (see below).

In its late-November ruling, the Court rejected some of the plaintiffs’ arguments regarding shortcomings in the process by which NH DES adopted the new maximum contaminant level (MCL) regulations. It also rejected the claim that the new drinking water regulations place unfair cost burdens on municipalities, noting that all but one of the plaintiffs are not municipalities and are, therefore, not impacted, and that the Town of Plymouth is not required to provide water services and, therefore, could opt out of being impacted by the new rules.

But the Court agreed with the plaintiffs that NH DES did not conduct an adequate analysis of the costs and benefits of the new MCL regulations. This led the Court to place an injunction against enforcement of the new regulations. However, the Court has delayed implementation of that injunction until the new year, allowing time for any appeals to proceed over the coming holidays. Therefore, at this time, the new PFAS drinking water regulations remain in effect. But, come January 1, 2020, the injunction will likely go into effect, the rules will not be enforced, and NH DES will have to open up the rulemaking process again and fully assess the costs and benefits of the new regulations.

Download the Court’s ruling
Read coverage:
Concord Monitor
Union Leader Union Leader Editorial (Dec. 1)
Bloomberg