Editorial: Lebanon justified in challenging how new drinking water standards were set

  • FILE - In this Friday Jan. 7, 2011 file photo, water flows from a water fountain in Concord, N.H. A New Hampshire legislative committee voted Thursday, July 18, 2019, to approve some of the nation's toughest drinking water standards for a class of toxic chemicals that have caused widespread contamination and sparked health concerns. (AP Photo/Jim Cole, File)

Published: 8/3/2019 10:10:14 PM

The state of New Hampshire did the right thing last month in imposing tough new drinking water standards for a family of toxic chemicals called PFAS. And the city of Lebanon is doing the right thing in considering a legal challenge to the way those standards were adopted.

The new standards, approved by the Joint Legislative Committee on Administrative Rules, are among the most stringent in the nation and are scheduled to go into effect Oct. 1. Studies have linked this class of chemicals — commonly used in packaging, clothing, nonstick cookware and firefighting foam — to serious health problems, including higher rates of prostate, kidney and testicular cancer in some populations. They may also depress the body’s immune system and lead to lower birth weights. If that’s not alarming enough, PFAS persist in the environment so long that they are known as “forever chemicals.”

Already, 700 homes in four communities in New Hampshire have been connected to new water sources after their drinking water was contaminated by PFAS leaking into groundwater from industrial facilities and the former Pease Air Force Base. The state estimates that the number of people affected could eventually reach 100,000.

So stricter rules were more than justified (although we are by no means qualified to evaluate the scientific merits of particular limits). But the city of Lebanon has a point in objecting to the process used to adopt them. The legislative committee allowed no testimony from the municipal officials from all over the state who attended the July 18 meeting at which the rules were adopted. Only legislators on the committee were allowed to speak, and the rules were adopted in 20 minutes.

The reason for this unusual step, according Rep. Carol McGuire, R-Epsom, a committee member for a decade, was that the panel’s rules require testimony to be limited to issues within the rules themselves, rather than the policy issues surrounding them. Confronted with a roomful of municipal officials, she told staff writer Tim Camerato, the committee concluded that they were there to argue policy.

We are pretty sure that whatever abilities New Hampshire lawmakers possess, mind-reading is not among them. How could they possibly know what testimony was going to be delivered without hearing it? Lebanon City Manager Shaun Mulholland, Camerato reported, said that in fact the city was prepared to focus on the rules, specifically the lack of a comment period after the new standards were proposed and the state’s failure to produce a full economic analysis of the impact of them. In light of this, the city is now considering legal action.

The state estimates that it could cost $190 million to bring landfills, wastewater treatment plants and industrial sites in New Hampshire into compliance. About 80 percent of New Hampshire landfills, including Lebanon’s, have detected some form of PFAS, and Lebanon officials believe the cost of cleaning up could be substantial.

The fact that no state funding stream has been identified to fully finance that estimated $190 million cost is troubling, suggesting as it does that local taxpayers might be required to bear the burden. That in itself is difficult to square with the New Hampshire Constitution’s prohibition against the state imposing unfunded mandates on local communities. Perhaps the state is expecting that settlement money from its lawsuit against eight manufacturers of the chemicals will eventually cover the costs, but that remains speculative for now.

It appears that the Department of Environment Services does not expect communities to rush to comply with the new rules. An extended period of landfill monitoring is in the offing before any compliance plan will be required, according to Assistant Commissioner Clark Freise, so perhaps a source of state funding will be identified by then.

That aside, Lebanon is on solid ground in objecting to the process. Good rules adopted by flawed process are only a short step away from bad rules adopted by bad process.

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