March 02, 2020

In Brief

John R. Jacus

Administrative Procedure Act, emerging contaminants

Plymouth Village Water & Sewer District v. Scott, No. 217-2019-CV-00650, 2019 N.H. Super. LEXIS 18 (N.H. Super. Ct., Nov. 26, 2019). 
The New Hampshire Superior Court enjoined the New Hampshire Department of Environmental Services’ (DES) new standards for per- and polyfluoroalkyl substances (PFAS) in drinking water, finding that the plaintiffs’ claim that DES had not quantified the benefits of such standards under the New Hampshire Administrative Procedure Act was likely to succeed on the merits. The court ruled against the plaintiffs’ other claims, including that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the final standards. Plaintiffs, a municipality, water treatment providers, and a PFAS manufacturer, asserted that DES failed to comply with the legislature’s mandate that, when DES adopted PFAS regulations, it had to consider the costs and benefits of the regulations. Plaintiffs argued that when DES adopted a more stringent standard than originally proposed for levels of certain PFAS compounds in drinking water that increased the estimated compliance costs by a factor of 30 to 60, the agency provided no estimate of the benefits of the stronger standards. DES acknowledged that it did not assess the benefits of the new regulations because not enough was known about the benefits to allow them to be estimated. The court described DES’ cost-benefit analysis as “cursory consideration” with no quantification of the level of harm caused by PFAS at different levels of exposure and no explanation of the benefits expected from imposing different PFAS drinking water standards and their correlative levels of cost. The court concluded that DES had “failed to comply with the statutory requirement that it give consideration” to the “costs and benefits to affected parties that will result from establishing the standard” for PFAS in drinking water. The court stayed its injunction for a month to give the parties time to appeal to the New Hampshire Supreme Court.

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