Regulation by Legislative Impulse

In recent years, a great deal of public concern has arisen regarding the presence of per- and polyfluorinated alkyl substances (PFAS) in the ground and surface waters of NH and potential human and environmental exposures to them. Based upon the available science, it appears that concern is warranted.

However, public concern has culminated in legislative attention, leading in 2020 to establishing a PFAS Maximum Contaminant Level (MCL) in state statute. In the current legislative session, House Bill 478 has been introduced to require that a single company, Saint Gobain Performance Plastics and any of its successors, pay all costs associated with operating, monitoring and maintaining treatment systems for two PFAS impacted wells operated by Merrimack Village Water District (MVD) that are contaminated with PFAS above the MCL established by statute.

This requirement is to persist for as long as MVD treats the water from the two wells to comply with any existing or future water quality standards set for PFAS.

This approach to redressing contamination from one company at one site is unsound policy from two perspectives.

The first is that there is an established process governing remediation of contaminated sites under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as Superfund. The NH Department of Environmental Services (NHDES) has been delegated the authority to manage such contaminated sites by the U.S. Environmental Protection Agency under NHDES regulations. 

The process governs identification, investigation and remediation of sites and assignment of liability for cleanup to potentially responsible parties. This process is applied consistently and uniformly to all such sites and all such parties. Companies that are believed responsible for the contamination are treated similarly on a consistent, level playing field in the Superfund process. Singling out one company for special requirements by statute puts NH on a slippery slope where companies that use chemicals in their manufacturing processes can reasonably become concerned that they will be singled out for such legislative treatment should they discover a contamination problem. 

Questions of Fairness Raised
Will the legislature see fit to involve itself in every contaminated site in similar fashion? If not, what will be the criteria by which the legislature will decide to involve itself, and how will those criteria be coherently codified? When the legislature does engage, what will be the basis for its remedial and liability decisions?

NHDES has the authority, responsibility, technical capacity and regulatory decision-making processes to manage contaminated sites in the state. When those regulations and processes are properly followed, sound, science-based remedial and liability decisions are made and implemented. This legislation takes that authority out of the NHDES’s hands and sets a precedent for management of such sites by legislative impulse.

Such a precedent introduces uncertainty in the minds of business leaders regarding the regulatory environment in which they operate when the governing rules may not be consistently and fairly applied. This concern is amplified by what appears to be a developing pattern in recent years of the legislature usurping NHDES regulatory responsibilities and setting aside established regulatory practices and processes in favor of its own judgment as occurred in setting the PFAS MCL by statute. 

I strongly recommend that the NHDES be trusted to fulfill its statutory responsibility to manage sites contaminated by PFAS, as well as any other toxic substances. Taking this path will avoid politically induced regulatory uncertainty that will make it difficult for businesses to rationally assess their regulatory obligations and risks. Most businesses agree that NHDES effectively manages environmental issues in an even-handed manner. Legislative interference in its assigned function will increase uncertainty for businesses, which will not be helpful to the general economy.

John Gilbert, president of Synchrony Advisors, is a member of the Business & Industry Association (BIA) of NH’s executive board. The BIA (biaofnh.com) endorses his arguments in this column.