On July 23, 2020, Governor Sununu of New Hampshire signed into law a bill that sets maximum contaminant levels (MCLs) for four types of perfluoroalkyl substances (PFAS) in drinking water. The bill also sets aside $50 million in state funds for cleanup of sites contaminated by PFAS. The New Hampshire law is a significant development, as it sets MCLs that are stricter than both the EPA’s health advisory levels and also many other state regulations for the same chemicals. Many states, like New Hampshire, have begun regulating PFAS on their own under pressure to do so from both its citizens and media, as the EPA continues its lengthy review process before setting MCLs of its own.
The New Hampshire bill (H.B. 1264 (2020)), sets limits for the following PFAS:
PFOA: 12 parts per trillion
PFOS: 15 parts per trillion
PFNA: 11 parts per trillion
PFHxS: 18 parts per trillion
The MCLs take effect on June 30, 2020, giving townships, municipalities and water commissions two years to implement changes so that they are in compliance with the new limits.
As part of the bill, the New Hampshire Department of Environmental Services (DES) is required to provide low interest loans to communities that began remediation efforts after September 30, 2019 and whose water sources show PFAS that exceed the MCLs. The state set aside $50 million for such loans. However, if DES identifies a “responsible party” for some or all of the contamination, the loan amount that the state must give from taxpayer money can be reduced by the amount collected by the responsible party. This provision will naturally have the effect of the DES increasing the number of PFAS violations that it issues to private parties (largely, industrial companies) so that the remediation costs can be shouldered more by industry than by taxpayer money.
Two other important provisions of the bill are language that requires insurance companies to cover blood tests for people potentially impacted by PFAS, and an agreement to extend the state’s Seacoast Cancer Cluster Investigation until June 30, 2022. The Seacoast Cancer Cluster Investigation Task Force was established by the Governor in 2016 with the purpose of bringing together numerous entities to study a reported cancer cluster, believed to be caused by PFAS, along the New Hampshire coastline. The Task Force’s purpose is to review progress by state agencies in investigating the cancer cluster, establish roles and responsibilities for municipalities and state agencies based on the findings, and ensure local coordination and cooperation with informing the public.
The bill was originally proposed several years ago, but many questions were raised during the public comment period regarding the method by which the MCLs were set, as well as the proper balance between using state taxpayer money for site cleanups versus fining parties allegedly responsible to fund some or all of the cleanup. The bill was the subject of litigation in state court for some time by companies concerned that the bill failed to follow proper administrative and procedural steps. Despite the concerns and delays, the bill passed the state Senate 23-1 and the state House 210-116.