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Lebanon considers lawsuit over PFAS standards



Valley News Staff Writer
Monday, July 29, 2019

LEBANON — Efforts to tighten the threshold for PFAS chemicals in New Hampshire’s drinking water could face a legal challenge from Lebanon, which is seeking partners for a lawsuit against regulations set to take effect in October.

City officials say they were barred by lawmakers from providing testimony on new PFAS rules, which are estimated to cost municipalities $190 million to bring their water systems, landfills and industrial sites into compliance.

Instead, the Joint Legislative Committee on Administrative Rules, or JLCAR, voted to approve some of the nation’s toughest drinking water standards without hearing from any members of the public.

Lebanon Mayor Tim McNamara, who attended the committee’s July 18 meeting at the Legislative Office Building in Concord with Solid Waste Manager Marc Morgan, said the hearing room was nearly full of officials wanting to either contest or applaud the rules. They never got their chance.

“A lot of people, not just from Lebanon, but a lot of people waited a long time to get into this hearing,” he said in a phone interview on Monday. “To have it begin and end in 20 minutes was a big surprise for everybody.”

PFAS — or polyfluoroalkyl substances — are a class of chemicals commonly used in commercial products, such as packaging, clothing, outdoor equipment and nonstick cookware. Their use in firefighting foam, sewage and industrial waste means the chemicals are often found in industrial sites and landfills, including Lebanon’s landfill on Route 12A in West Lebanon.

Studies have linked exposure to PFAS with higher rates of prostate, kidney and testicular cancer in some populations. The chemicals also could lower the body’s immune system and decrease the birth weights of infants.

Those concerns are largely why the New Hampshire Department of Environmental Services proposed a 12 parts per trillion limit for PFOA, a type of PFAS also known as perfluorooctanoic acid. That’s down from a 70 ppt standard.

While it’s unusual for JLCAR to bar testimony on a proposed rule, it’s not unheard of, said Rep. Carol McGuire, R-Epsom, who has served on the committee for roughly a decade.

That’s because JLCAR is unlike other legislative groups.

Its rules require testimony to focus specifically on “issues in the rules” rather than the politics surrounding them, McGuire said.

So when it came time to hold a hearing, lawmakers looked out into the crowd and determined those in attendance would likely be there to argue policy, McGuire said.

Senate Majority Leader Dan Feltes, D-Concord, made a motion to hold votes on the rules, and only legislators in the committee were allowed to speak.

“The committee is not a policy committee and as the committee staff noted, the standards were within the statutory directive already set by the Legislature,” Feltes, who is considering a run for governor, said in an emailed statement on Monday.

Emails requesting comment from the committee’s chairman, Rep. William Hatch, D-Gorham, were not returned on Monday.

Lebanon City Councilor Clifton Below called the committee’s decision “ridiculous,” and pointed out that JLCAR’s own rules say that “all persons with relevant testimony shall be heard.”

Below, a former Democratic state senator who served as chairman and vice chairman JLCAR for four years, said he never outright banned the public from testifying. He would interrupt if someone got off topic or limit the time they could speak, though.

“How would the committee know (what someone will say) if they don’t get a chance to hear people?” Below said in a phone interview. “If you never take testimony on the issue, then you’re just making assumptions.”

Lebanon City Manager Shaun Mulholland said the city was prepared to comment on the PFAS rules. Its issues revolved around the lack of a comment period once the new regulations were released and the state’s failure to produce a full economic analysis.

“It’s not a matter of policy. We’re talking about the actual criteria that JLCAR needs to use,” Mulholland said.

And at least one JLCAR committee member agrees that the committee should have given the public an opportunity to speak. State Sen. Ruth Ward, R-Stoddard, who serves on JLCAR and represents Newport-area communities, said the committee was likely to adopt the new rules regardless of public testimony, but taking comments would have at least allowed people to feel like part of the process.

“I just think this thing was poorly handled,” she said. “The (committee) may have been right in handling it this way. I just don’t think it was very smart.”

Mulholland, the Lebanon city manager, said he’s drafting a letter to New Hampshire Senate and House leaders challenging the lack of a public hearing. The city is also looking into legal options, which could include obtaining an injunction against the PFAS rules.

Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.

Correction

City officials in Lebanon are considering a l awsuit over how new standards for PFAS chemicals in drinking water in New Hampshire were implemented. An earlier headline with this story overstated where Lebanon is in the process.