The State Perspective: Drinking Water and Groundwater Standards for PFAS in New Hampshire

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Last year, Chapter Law 368 was created to ensure that New Hampshire had protective drinking water and groundwater standards for four Poly and Per Fluorinated Alkyl Substances (PFAS ):Perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). All four of these compounds have been found in New Hampshire’s groundwater and surface water, including at a highly contaminated public drinking water well near a former fire training area at Pease Tradeport and in a 65+ square mile contaminated area in southern New Hampshire caused by air emissions leaching PFAS into groundwater. PFOS, PFOA, PFNA, and PFHxS were also identified as having sufficient peer reviewed health studies to establish health based standards. This article describes what the New Hampshire Department of Environmental Services (NHDES) has done in response to the new law. While the focus is not on all the work done by NHDES in the past few years to investigate and address PFAS contamination statewide, readers interested in this topic should visit the NHDES website at https://www4.des.state.nh.us/nh-pfasinvestigation/.

PFOS, PFOA, PFNA and PFHxS are part of a large family of chemicals, many of which have been widely used since the 1940s in commercial, industrial and household products and applications including production of water resistant materials, fire suppression foams, non-stick cookware, stain removers, etc. Because of their wide use, persistence in the environment, and bio-accumulative properties, these compounds have been detected in blood serum levels in humans and other animals everywhere. The health effects associated with PFAS exposure is an evolving science and are currently being researched extensively by toxicologist and epidemiologists worldwide. NHDES and the New Hampshire Department of Health and Human Services (NHDHHS) continue to review and evaluate the health toxicity and health effects of these compounds as research becomes available. Currently, according to the Centers for Disease Control’s (CDC) Agency for Toxic Substances and Disease Registry (ATSDR), some known health effects may include:

• Affect to the growth, learning and behavior of infants and older children

• Lowers a woman’s chance of getting pregnant

• Interference with the body’s natural hormones

• Increased cholesterol levels

• Affect the immune system

• Increased risk of certain types of cancer

The only current federal guidance on safe levels of PFAS over a lifetime in drinking water is a joint health advisory of 70 parts per trillion (ppt) combined for PFOA and PFOS that was issued by the U.S. Environmental Protection Agency (EPA) in 2016. This advisory was adopted as an ambient groundwater quality standard for waste site clean-ups by NHDES shortly thereafter. Because many states and other countries had detected PFOA, PFOS and/ or other PFAS in their waters prior to EPA’s health advisory, a number of differing state clean-up standards of health advisories were established and continue to be established. “Safe” levels in America now range from a combined level for five or six PFAS at 20 ppt to hundreds of parts per trillion.

Out of concern that the levels set in New Hampshire are not sufficiently protective of humans at all life stages, Chapter Law 368 directs NHDES to consult with the NHDHHS to initiate rulemaking to adopt maximum contaminant levels (MCLs) for PFOA, PFOS, PFHxS and PFNA by January 1, 2019. It requires that NHDES consider 1) the extent the contaminant is found in New Hampshire; 2) the ability to detect the compound; 3) the ability to treat the contaminant; 4) benefits associated with adopting an MCL; and 5) the costs associated with adopting an MCL. MCLs are water quality standards that apply to public water systems (water systems serving more than 25 people a day at least sixty days a year). MCLs only apply to non-transient public water systems (water systems serving 25 or more of generally the same population of people, six months of the year). Establishing an MCL triggers monitoring, reporting, public notice and compliance requirements.

Existing state law, prior to the adoption of Chapter Law 368, requires NHDES to adopt rules to establish Ambient Groundwater Quality Standards (AGQSs) that are the same as any MCLs established by NHDES. Ambient groundwater quality standards are the levels used to require site investigations and remedial action at and around contamination sites. AGQSs are also used to identify where the provision of alternative drinking water is required when private and/or public water supply wells have been impacted. Ambient Groundwater Quality Standards also dictate what and how wastewater and wastewater residuals can be discharged to groundwater. In addition to adopting MCLs, Chapter Law 368 directs NHDES in consultation with NHDHHS to review and initiate new rulemaking for the existing 70ppt combined AGQS for PFOA and PFOS and establish standards for PFHxS and PFNA by January 1, 2019. By default, a revision to the rules for groundwater discharge permitting was also required.

In accordance with Chapter Law 368, on December 28, 2018 NHDES initiated rulemaking to establish Maximum Contaminant Levels (MCLs) for PFOA, PFOS, PFNA and PFHxS and associated rules for monitoring, reporting, public notice and compliance with the MCLs. NHDES also filed the rule to revise/establish identical Ambient Groundwater Quality Standards (AGQS) and a rule that defines how

the AGQSs shall be applied for groundwater discharges that contain these chemicals. These rules reflect significant input from the public and in particular from citizens’ groups in the seacoast and southern New Hampshire. The initial standards proposed are as follows

Proposed Standards

On January 4, 2019 NHDES also released a summary report on the development of the drinking water standards (MCLs) including an explanation of the health risk assessment for each compound and information on cost, benefit, occurrence, and ability to detect and treat these chemicals. This report as well as the initial rulemaking proposal forms and copies of the proposed rules can be found on the NHDES website.

It is important to note that the majority of the work NHDES performed to meet the charge and deadlines set forth in Chapter Law 368 was focused on deriving the individual standards for PFOA, PFOS, PFNA and PFHxS that protect the most sensitive population through their lives. Since release of the initial proposal and in the future, NHDES expects to continue researching new health studies on these chemicals as well as risk management approaches that are scientifically valid that could address any compounding effects between chemicals. Addressing PFAS one at a time will not get New Hampshire or the country where it needs to be in terms of protecting human health and the environment expeditiously. NHDES continues to press USEPA to research appropriate methods for regulating PFAS compounds as a group.

New Information May Change NHDES Proposed PFAS Drinking Water Standards

Also, on February 21, 2019, NHDES released the following blog post so that the public understood they were reviewing a new model out of Minnesota that could potentially reduce the initially proposed standards.

On December 31, 2018, the New Hampshire Department of Environmental Services (NHDES) initiated rulemaking to establish Maximum Contaminant Levels (MCLs) and Ambient Groundwater Quality Standards (AGQS) for four per- and polyfluoroalkyl substances (PFAS) – perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA) and perfluorohexanesulfonic acid (PFHxS).

After the initial proposal, new scientific information was evaluated by NHDES that may change the proposed drinking water standards. Specifically, a new assessment tool developed by the Minnesota Department of Health allows for a quantitative estimate of infant and child exposure to PFAS through breastmilk and/or formula. This peer-reviewed model was published at the beginning of January after NHDES filed its Initial Proposal. NHDES’s assessment of the exposure model for the interaction of drinking water levels of PFAS and breastfeeding (Goeden et al, 2019) indicates that health-based drinking water or groundwater standards for PFOA and PFOS would potentially be lowered significantly below the initial proposal figures of 38 parts per trillion (ppt) and 70 ppt, respectively. NHDES is continuing to review the suitability of this assessment tool for PFHxS and PFNA based on this and other studies released in 2019. NHDES will need to complete a review of the technical and cost implications of these health-based calculations, and any public comment received, prior to issuance of the Final Proposal.

NHDES conducted three public hearings on the rules, and the deadline for public comment was April 12, 2019. Depending on the comments received and the potential for new studies, it is anticipated that the final proposals will be filed by summer. While the standards may well change by the final proposal, NHDES is committed to being transparent on the science and process used to derive the standards.

Sarah Pillsbury is Administrator of the Drinking Water & Groundwater Bureau, Water Division, at the New Hampshire Department of Environmental Services. Sarah can be reached by phone at (603) 271-1168 or by email at Sarah.pillsbury@des.nh.gov.

RELATED SIDEBAR

Municipal Compliance for New PFAS Rules Range from $79 to $140 Million!

Still Unclear Who Pays for These Costs!

Last year, NHMA supported SB 309 (Chapter Law 368), a bill which required the New Hampshire Department of Environmental Services (NHDES) to initiate rulemaking for PFC standards by January 1, 2019. These standards were required to be based on health risk assessments along with the costs and benefits to affected parties, including cities and towns. NHMA and many others supported the standard-setting process contemplated in SB 309 along with the necessary resources the bill provided to NHDES to establish standards based on peer-reviewed scientific data regarding health risks and a comprehensive understanding of the impact and practicality of the recommended standards. NHDES met the January 1, 2019 requirement for proposed PFC standards.

The fiscal impacts associated with these new PFAS standards have been relatively overlooked and under estimated by state regulators. Based on recent public input, NHDES is now considering standards stricter or lower than listed in the chart above. NHDES estimated some potential impacts of these stricter standards, providing low and high estimates for both capital and operational costs for treatment, wastewater disposal to groundwater, landfill sites, and hazardous waste sites. The total of these estimates for local governments ranges from a low of $79 million to a high of $138 million – with even the high end likely to be a conservative estimate in our opinion. However, the bill is silent on how those costs are to be funded.

Our members include environmental stewards working every day on the front lines to protect both public health and the environment. Moreover, NHMA members support a clean and healthy environment for the State of New Hampshire, but local resources are not unlimited. NHMA members also support the prohibition against unfunded mandates found in Part I, Article 28-a of the New Hampshire Constitution. New, expanded, or modified programs or responsibilities that necessitate additional local expenditures by the municipality cannot be imposed—either by legislation or by rulemaking—unless the cost is fully funded by the state or the municipality has a choice in funding the cost. Part I, Article 28-a, New Hampshire Constitution, RSA 541-A:25-27.