A Court Enjoins Implementation of NH DES PFAS Regulations — Almost!

Last week, Judge Richard McNamara ruled that the plaintiffs were likely to succeed in their challenge to the very stringent standards for PFAS in drinking water promulgated by the New Hampshire Department of Environmental Services.  However, given the importance of the issues, the Court stayed its injunction until December 31, to give the parties time to appeal to the NH Supreme Court.

The Court ruled against the plaintiffs’ claims that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the regulations (DES’s final regulations were substantially more stringent than its proposed regulations).  So what was the basis for the injunction?  The Court concluded that DES had failed to comply with the legislature’s statutory requirement that DES give “consideration” to the “costs and benefits to affected parties that will result from establishing the standard” for PFAS.

Plaintiffs asserted that the compliance costs increased by a factor of 30 to 60 times the costs attributed to the original proposed rule and that DES provided essentially no estimate of the benefits of the rule.  DES basically acknowledged that it did not assess the benefits, but argued that not enough was known about the benefits to allow DES to quantify them.  The Court agreed with the plaintiffs that this was insufficient.

The Court finds the implicit suggestion from DES that it need do no more than give the cost benefit analysis of RSA 485:3, I(b) such cursory consideration as it, in its sole discretion, thinks it deserves, unpersuasive.  Where, as here, there is no quantification of the level of harm caused by PFAS at different levels of exposure, at the very least some explanation for benefits expected from imposing different levels of concentration and correlative levels of cost must be made.

DES is under a lot of pressure here.  There are numerous groups looking for DES to impose very stringent standards.  The legislature, in response to those same pressures, mandated that DES act.  At the same time, the legislature also mandated that the regulations reflect consideration of the costs and benefits for the rule.  It doesn’t seem unreasonable to me that DES be required to comply with the legislative mandate.

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