Federalism and the Regulation of PFAS

There has been much angst at the state level that EPA has not moved faster to develop drinking water or cleanup standards for PFAS. One of the states affected by the pace of EPA’s regulatory efforts is New Hampshire. Taking up the mantle, New Hampshire enacted legislation requiring the Department of Environmental Services to take a variety of actions with respect to PFAS. One required action is the development of a plan for the establishment of surface water quality standards for four PFAS compounds.

I’m not going to address in this post the wisdom of the legislation or DES’s response. (And in the spirit of full disclosure, I am on the Coakley Landfill Superfund Site Executive Committee; PFAS have been detected at the Coakley Site.)

The focus of this post is on the federalism implications of the current EPA approach towards PFAS. Wisely or not, EPA is proceeding at a much more deliberate pace in addressing PFAS than a number of states think is appropriate. Wisely or not, a number of state have decided that they now have to tackle PFAS regulation on their own, without waiting for EPA.

What’s been the result? Well, one result is that state agencies such as NHDES are being asked to do work that they have traditionally not done, with resources that they do not have. Here are some nuggets from NHDES’s recent report to the legislature concerning its plan for developing surface water quality standards for PFAS:

If NHDES is to fulfill its mission and be able to respond to other emerging contaminants, it is important to consider that capacity building within NHDES and other state agencies. Capacity building requires expansion and staffing of existing programs. This includes having dedicated staff who work on emerging contaminant issues without sacrificing time and effort intended for ongoing issues.

One of the issues that NHDES addressed was whether surface water quality criteria should address risks to aquatic life or just public health. Here’s what the report says:

It is not recommended that New Hampshire embark on developing its own aquatic life use criteria at this time. The number of aquatic life toxicological data gaps for most of the PFAS compounds is extensive. While New Hampshire should make efforts to contribute to the overall body of scientific literature on the impacts to aquatic life, it is not rational to think that New Hampshire should take on the full burden of those data gaps. (Emphasis added.)

In other words, federalism doesn’t really work if all it means is that the federal government punts on difficult issues and simply pushes the costs of environmental regulations onto the states. The states aren’t happy, but neither is the regulated community, which benefits from a least a modicum of consistency that is possible when EPA develops national standards.

In fact, this isn’t federalism; it’s just passing the buck.