Lebanon Considers Seeking Injunction Against New State PFAS Rules

Aug 2, 2019

Lebanon will have to pay for PFAS treatment at its wastewater treatment plant when new state regulations take effect.
Credit Google Earth

The city of Lebanon is asking other communities to join in a potential lawsuit over how state lawmakers approved new limits on PFAS chemicals in drinking water.

A legislative committee put the new PFAS standards to a vote at their mid-July hearing without giving a chance for any public testimony.

It was a surprise to people on both sides of the issue who'd come expecting to speak.

The proposed rules were far stricter than what the Department of Environmental Services initially proposed in January. Those initial rules were presented at public hearings with time for stakeholders to weigh in.

The final proposals, which carry a much greater estimated cost of nearly $200 million, did not receive public hearings before going to the legislative rules committee. That was frustrating to stakeholders like Lebanon City Councilor Karen Liot Hill. 

"Passing rules with such enormous impact without public participation is extremely concerning for a democracy," she says.  

Now, Lebanon officials argue it went against that committee’s own rules to not allow time for testimony. 

The city is considering filing suit to seek an injunction on the rules until the committee, known as JLCAR, reconsider them with public input. Lebanon is seeking towns to join them in that suit.

City Manager Shaun Mulholland and the New Hampshire Municipal Association say they’re not aware of any towns that have yet said they want to join Lebanon’s potential lawsuit.

But if it happens, Mulholland hopes it could address towns' concerns about the cost of the new rules.

"JLCAR should have taken that into consideration and addressed that issue before approving the rules,” he says. “They didn't do that."

The Department of Environmental Services attached a fiscal analysis to their final PFAS proposal, but did not break down their cost estimates as they often do with similar rules.

"We haven't objected to any those in the past because they make sense, they've done the analysis,” Mulholland says. “In this case, the concern is that they haven't done that."

He says if the rules were to pass a second time, Lebanon would follow them.

Mulholland says the city does not have PFAS in its drinking water, but would have to pay to treat PFAS in discharge from the municipal wastewater treatment plant and landfill.

The chemicals don’t break down in nature, build up in the body and have been linked to health problems. DES says it believes the science that says strict limits on the chemicals are warranted.

Critics like Mulholland and the Municipal Association say they’re all for clean drinking water, but aren’t yet convinced on those health risks.

Municipal Association executive director Margaret Byrnes says they also believe the new regulations may be an unfunded mandate, violating Article 28-A of the state constitution.

“Not only is there potential to challenge the rules process, but, given the significant costs incurred by the mandated new standards—costs that the State is not paying for—a violation of Article 28-A is also a potential basis for a lawsuit,” Byrnes writes in an email.

Her organization has already written a letter to JLCAR with their concerns.

Lebanon is drafting a similar letter to JLCAR. Officials will talk more about the issue at Lebanon’s city council meeting next week.