Debate Over Science and Risks Shapes 3M's Lawsuit Against N.H.'s PFAS Water Standards
New Hampshire's strict new limits on PFAS chemicals have been in effect for more than a month now. Officials say the regulations are based on sound science. But the court battle against them is only just beginning.
It's spearheaded by 3M, the chemical company that helped invent PFAS. Their partners in New Hampshire include a cattle farmer, a fertilizer company and a town water utility.
On a recent day in Concord, a small crowd stood protesting outside Merrimack Superior Court. They held up signs that said things like "Shame on 3M," chanting as groups of lawyers walked past:
"What do we want? Clean water! When do we want it? Now!"
Former state Rep. Mindi Messmer, a Democrat who's now running for Executive Council, set up this protest. She sponsored the bill that led the state Department of Environmental Services this year to set the strictest PFAS limits of their kind in the country – the same limits 3M would be in court that day to oppose.
"This is clear corporate greed," Messmer says. "They should not be able to decide what we should drink. When we turn on the faucet, we should not have to worry about our kids and the safety of the water that they drink."
PFAS were widely used until the mid-2000s to make all kinds of products, like nonstick pans and waterproof clothes -- as well as firefighting foam, which has contaminated military sites nationwide, including in Portsmouth.
The chemicals have been linked to serious health effects – high cholesterol, kidney, liver and thyroid issues, developmental delays and pregnancy problems, maybe even some cancers.
There is evidence for all these connections – but the scientific consensus around them is still being established. That's partly why, at first, New Hampshire was less aggressive and more moderate in the PFAS limits it proposed.
The state declined an interview for this story, but officials have said in the past that what tipped the scales toward tighter standards was one particular study from Minnesota. 3M, the chemical company, was actually founded there – Minnesota is one of the Ms in their name.
That's put scientists like Helen Goeden, the senior toxicologist and risk assessor with the Minnesota Department of Health, on the front lines of the PFAS issue longer than most.
She's been studying it since the early 2000s, when the chemicals turned up in drinking water near 3M’s Minnesota facilities.
Over time, she says, she and other scientists realized how ubiquitous and pesistent PFAS can be – and that the chemicals could cause problems at far lower levels than most chemicals.
"It may have appeared that the problem was getting worse, but actually it was [that] our knowledge was improving," Goeden says.
They also learned these chemicals can build up for years in the human body. That could be one reason PFAS poses added health risks.
Eventually, Goeden says her team started to see that drinking water was not the only way people could be exposed to PFAS. Studies were finding that exposed mothers could pass PFAS on to their babies -- in utero and through breastmilk.
So Goeden's team wrote a model, which was peer-reviewed and published in the journal Nature. It estimates how much PFAS can be transferred from mothers to babies, and projects how that transfer contributes to lifelong PFAS levels in children's bodies.
"It looked like it was important and it was a significant contributor," Goeden says.
"It may have appeared that the problem was getting worse, but actually ... our knowledge was improving."
In New Hampshire, the legislature specifically required regulators to make sure their new PFAS standards protected against early childhood risks.
Opponents of the state's new rules wanted more say in how officials applied the Minnesota model. But Goeden says users don't have to be too aggressive with the model to get alarming results.
She says in public health, officials take a conservative approach -- even with early data showing a chemical is unsafe.
"Typically, from a public health perspective, we do not wait until there's conclusive evidence of - yes, this damages health," Goeden says.
That's not the approach for certain regulators and stakeholders. For one thing, when it comes to federal standards for chemicals like PFAS, the U.S. policy is to wait for more explicit evidence of harm before cracking down.
And while federal scientists are growing more concerned about the potential health effects of PFAS – and other states like Michigan, New York and Vermont are writing their own enforceable standards – many who will be most affected by following those regulations aren't convinced.
THE SEWAGE CONNECTION
Charley Hanson is the cattle farmer from Center Harbor who joined the 3M lawsuit against New Hampshire. His hay fields are fertilized with what are called biosolids. That’s human sewage, dried out, cleaned up and turned into mulch. It doesn't bother Hanson at all.
"We have what I call fecal aversion syndrome. People go to the bathroom, they close the door – it's discreet and everything, I get that," he says. "But the reality is, these are great sources of nutrients when used appropriately."
The main reason Hanson is worried about New Hampshire's new PFAS standards is that the biosolids he uses come from wastewater treatment plants.
They're not currently required to treat for PFAS -- which can wind up concentrated in what we flush down our toilets, the same stuff that's used to make this fertilizer.
New Hampshire will soon begin planning new surface water standards for PFAS, which would affect wastewater plants that send their treated effluent out to rivers. It could increase the cost of biosolids, steering people like Hanson back to the commercial fertilizers he sees as less eco-friendly.
But the larger issue is that biosolids users like Hanson are typically spreading at least low levels of PFAS on their fields, according to data collected by a local industry group.
More and more, these biosolids users are being accused of causing PFAS contamination. It was recently found in drinking water wells in Kingston near a field spread with biosolids. The company that managed the field wound up shutting down.
In states like Maine and New Mexico, biosolids are thought to have contaminated dairy cows' milk -- after the cattle grazed from fields fertilized with the stuff. That led to swift regulatory action, alarming the biosolids industry in New Hampshire.
Hanson worries that tighter regulations will put people like him on the hook unfairly for even more PFAS cleanup.
"We've lived with these chemicals for, what, seventy years, give or take? And suddenly we're just having this realization about 'em. I don't know how much of an impact they make -- doesn't seem like a lot," he says. "And to just start taking rash actions, I don't think is prudent, based on what the actual risk is."
Hanson's biosolids supplier is RMI, a fertilizer company in Holderness. He's also on RMI's board with its president, Shelagh Connelly. The company is also part of the 3M suit.
Connelly argues there's just not enough data to convince her that it's worth making the changes the state estimates will cost towns and businesses tens of millions of dollars.
"We are rushing to say we're going to implement these standards just to be safe," she says. "And I say to you, do you know what it's going to cost 'just to be safe?'"
COUNTER-SUITS AND COSTS
The biggest immediate cost will be for local water districts. That's why the Plymouth Village Water and Sewer District is the final plaintiff in the 3M suit.
Superintendent Jason Randall says it's hard to imagine eradicating PFAS from his system single-handedly, since the chemicals were, and in some cases still are, found in so many commonly used products.
"There's habits that we need to change as a society in order to make these regulations and the levels permitted acceptable and viable for our communities," Randall says.
3M helped put these PFAS-based products like Teflon and Gore-Tex into Americans' lives. The company initiated the lawsuit against New Hampshire and invited the local parties to join.
The company didn't want to be interviewed, but says in a statement: “We believe the development of drinking water standards should follow appropriate regulatory processes and be supported by the best available science."
They say New Hampshire didn't do either of those things in writing its new rules.
But unless a judge grants 3M's request for an injunction, those rules will stay in effect. Public water systems, including Plymouth's, will have to file their first quarterly PFAS testing results by the end of December. From there, they'll get a sense of how much treatment might cost.
And more money could come through for that in the future -- from the state legislature or federal grants, or through court.
Here again, New Hampshire takes a cue from Minnesota. That state got $850 million in a water contamination settlement with 3M last year.