The regulation of PFAS substances has become a matter of contention between U.S. EPA, states and local governments, environmental groups, and industry participants. EPA is under pressure by health experts, environmental groups, and affected communities to set a Maximum Containment Level (“MCL”) for PFAS, but has yet to do so. States, however, are beginning to push for state specific regulations that would lower the amount of PFAS substances allowed in drinking water and groundwater. Industry participants have strongly opposed these new regulations, arguing that states are legislating before thoroughly evaluating the costs, benefits, and science that can back up setting stricter standards.

On October 1, New Hampshire enacted stringent PFAS regulations that dropped the allowable limit of PFAS substances to 12 parts per trillion (“ppt”) for PFOA, 15 ppt for PFOS, and 18 ppt for PFHxS in drinking water and groundwater. The regulations were also the first in the United States to require routine landfill testing. 3M, a manufacturer of PFAS compounds, filed suit in New Hampshire Superior Court and sought an injunction to halt the enforcement of these lower limits. A local farmer, the town of Plymouth, and a sludge company joined 3M in the suit. Plaintiffs argued that the cost to comply with the new rules increased significantly compared to the costs attributed to the original proposed rule, the Department of Environmental Services (“DES”) failed to provide an estimate of the benefits associated with the new rule, and the state failed to allow adequate public comment before approving the standards.

New Hampshire Superior Court Judge Richard B. McNamara granted the requested injunction last week, agreeing with Plaintiffs that DES did not conduct an adequate cost-benefit analysis of the rule, as required under New Hampshire law. This injunction will bar the state from enforcing the stricter standards and will prohibit testing for PFAS in landfills, wastewater treatment plants, and water systems. Judge McNamara ordered that the injunction not take effect until December 31, however, so that either party can appeal or seek review in the New Hampshire Supreme Court.

This ruling highlights the resistance states are facing for pushing forward PFAS regulations without properly evaluating the data and the costs and benefits associated with stricter standards. Nevertheless, pressure to regulate PFAS is unlikely to decrease.