The N.H. Department of Environmental Services’ June 28 announcement (written in response to a legislative requirement) that it had submitted its final rulemaking proposal to establish maximum contaminant levels (MCLs) and ambient groundwater quality standards for four of the most prevalent per- and polyfluoroalkyl substances (PFAS) — PFOA, PFOS, PFHxS and PFNA — is a welcome, and overdue, step in the right direction.
These recommendations, in addition to addressing PFAS contamination in drinking water, enable additional legal actions to recover damages and remediation costs. Recently, the state attorney general filed two lawsuits against the manufacturers of these toxic products.
PFAS have been recognized as a significant environmental problem since at least the 1950s, when DuPont began purchasing PFAS from the 3M Co., which told DuPont that disposal of PFAS had to be by either incineration or at a chemical waste facility. 3M, citing “the proven persistence, pervasiveness and toxicity” of PFAS firefighting foam, left the highly lucrative business in 2000.
In 2017, DuPont and Chemours (a DuPont spin-off) agreed to a $670.7 million settlement, in addition to an earlier $350 million initial settlement, in a PFAS lawsuit in the Mid-Ohio Valley. Part of the initial settlement funded a 65,000-person, six-year study of PFOA, one PFAS. The study determined “probable links” between PFOA and kidney cancer, testicular cancer, ulcerative colitis, high blood pressure, pregnancy-induced hypertension and thyroid disease. While this is the largest PFAS lawsuit resolved to date, numerous others have been filed.
To be clear, I am pleased to see the state moving in the right direction; I would, however, be happier if it had not been the result of a legislative requirement. As a two-term (2015-2018) state representative concerned about water quality, I was regularly frustrated to find the Department of Environmental Services entirely comfortable with simply following the U.S. Environmental Protection Agency’s guidelines and generally exercising as little initiative as possible.
Consider, for example, that in spite of estimates that more than 400 military bases may have been contaminated by PFAS — not to mention other PFAS-contaminated sites around the nation — the EPA has guidelines but hasn’t seen fit to adopt drinking water standards (MCLs) for PFAS. Unfortunately, this seems to be business as usual for the EPA as, for example, the EPA doesn’t have guidelines, not to mention an MCL, for methyl tertiary butyl ether (MtBE), the chemical which was the basis for the largest contamination judgement ($817 million) in New Hampshire history and a huge national problem. Happily, the N.H. Legislature directed that DES establish an MCL for MtBE, which was done.
Following the EPA’s frequently nonexistent lead and/or doing nothing at all has always seemed to me a sad and irresponsible excuse for state policy. A recent illustration of this attitude was in the Legislature’s successful 2018 effort to reduce the state’s arsenic MCL. During testimony on the bill, DES’s representative testified that while they knew the state’s arsenic MCL was too high, no one had told them to lower it. While, depending on the issue, DES may need legislative approval to make changes, the citizens of New Hampshire should be able to assume their Department of Environmental Services would make appropriate recommendations to safeguard the environment and public health without having to be directed to do so.
Those opposed to the proposed PFAS water standards face a dilemma, since the clear science — and significant court findings — are becoming impossible to ignore. The argument that the funds necessary to address the problem are excessive should be considered in light of the medical costs and the human misery which accompany serious, and often life-threatening, preventable illness.
It should be understood that as I write this, somewhere in New Hampshire, women are making their infants’ formulas with contaminated water in the false confidence that New Hampshire would make it clear that contaminated water is not fit for consumption — particularly for infants, whose immune systems are not fully developed.
The Joint Legislative Committee on Administrative Rules takes up the DES proposal Thursday. The sooner this state adopts the proposed PFAS water standards, and takes a step toward addressing this problem rather than simply defaulting to the EPA, the better.