HB 271 - AS AMENDED BY THE SENATE

7Apr2021... 0577h

05/27/2021 1780s

2021 SESSION

21-0087

08/06

HOUSE BILL 271

AN ACT relative to standards for per and polyfluoroalkyl substances (PFAS) in drinking water and ambient groundwater.

SPONSORS: Rep. Rung, Hills. 21; Rep. Weston, Graf. 8

COMMITTEE: Resources, Recreation and Development

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AMENDED ANALYSIS

This bill directs the department of environmental services to set maximum contaminant limits for per and polyfluoroalkyl substances (PFAS).

This bill also enables the department of environmental services to make grants to eligible municipalities and drinking water and wastewater systems to address PFAS contamination

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

7Apr2021... 0577h

05/27/2021 1780s 21-0087

08/06

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty One

AN ACT relative to standards for per and polyfluoroalkyl substances (PFAS) in drinking water and ambient groundwater.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Per and Polyfluorinated Chemicals The subdivision heading prior to RSA 485:16-e is repealed and reenacted to read as follows:

Per and Polyfluoroalkyl Substances

2 Per and Polyfluoroalkyl Substances. Amend RSA 485:16-e to read as follows:

485:16-e [Perfluorochemicals] Per and Polyfluoroalkyl Substances.

I. The maximum contaminant levels for the following shall be:

(a) Perfluorooctanoic acid (PFOA): 12 parts per trillion.

(b) Perfluoroctanesulfonic acid (PFOS): 15 parts per trillion.

(d) Perfluorononanoic acid (PFNA): 11 parts per trillion.

II. By November 1, 2020, and at least annually thereafter, the commissioner of the department of environmental services shall report to the speaker of the house of representatives and the president of the senate, the chairperson of the house committee on science, technology, and energy, the chairperson of the senate committee on energy and natural resources, the chairperson of the joint legislative committee on administrative rules, and the governor, with a recommendation regarding the adjustment of the maximum contaminant levels set in paragraph I.

III. The commissioner of the department of environmental services may adopt maximum contaminant levels different than those set forth in paragraph I if, accounting for an adequate margin of safety to protect human health at all life stages, including but not limited to prenatal development, the commissioner determines the maximum contaminant levels in paragraph I need adjustment for the protection of human health.

3 Per and Polyfluoroalkyl Substances. Amend RSA 125-C:10-e to read as follows:

125-C:10-e Requirements for Air Emissions of [Perfluorinated Compounds] Per and Polyfluoroalkyl Substances Impacting Soil and Water.

I. For the purposes of this section:

(a) "Best available control technology" means "best available control technology" as defined in RSA 125-C:10-b, I(a).

(b) "Ambient groundwater quality standard" means "ambient groundwater quality standard" as defined in RSA 485-C:2, I.

(d) ["Perfluorinated compounds" or "PFCs" means the list of compounds identified in paragraph 1.1 of Environmental Protection Agency Document #: EPA/600/R-08/092 Method 537. "Determination of Selected Perfluorinated Alkyl Acids in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS)", Version 1.1 (September 2009).] "PFAS" means per and polyfluoroalkyl substances.

(e) "Precursor" means any substance that has been shown by sound science to be transformed into a [PFC] PFAS under ambient conditions reasonably expected to occur in New Hampshire.

II. A device that emits to the air any [PFCs] PFAS or precursors that have caused or contributed to an exceedance of an ambient groundwater quality standard or surface water quality standard as a result of the deposition of any such [PFCs] PFAS or precursors from the air, shall be subject to the determination and application of best available control technology. Within 6 months of the department determining that the device is subject to such control technology, the owner of the device shall submit to the department an application for a permit. Within 12 months of permit issuance, the applicant shall complete construction and installation of controls consistent with the permit. Operation of the source may continue through the permitting, construction, and installation time period. A source which can demonstrate to the department that its device no longer contributes to an exceedance of an ambient groundwater quality standard or surface water quality standard shall be exempt from this section.

III. The construction, installation, or modification of any device that has the potential, based on an applicability threshold adopted by the department, to cause or contribute to an exceedance of an ambient groundwater quality standard or surface water quality standard as a result of the deposition of any [PFCs] PFAS or precursors from the air, shall be prohibited without first applying for and obtaining a permit from the department that establishes emission limitations for such device based on best available control technology.

IV. Part of the initial application for a permit under this section shall include an analysis of best available control technology for controlling emissions. Any permit issued shall contain inspection, testing, and reporting requirements, as applicable, to ensure the conditions of the permit are met.

V. Any determination of best available control technology under this section shall be subject to the following:

(a) In no event shall application of best available control technology result in:

(1) Emission of any air contaminant that would exceed the emissions allowed by any applicable standard under RSA 125-C or RSA 125-I or rules adopted pursuant to either chapter.

(2) Emission of any air contaminant subject to this section in an amount disproportionate to the emissions of such air contaminant from other similar air pollution control devices for that air contaminant at facilities using similar technology.

(3) Emission of any air contaminant subject to this section which causes or contributes to or has the potential to cause or contribute to an exceedance of an ambient groundwater quality standard or surface water quality standard, as a result of the deposition of the contaminant from the air.

(b) If the department determines that the facility has more than one device that emits air contaminants subject to this section, the department shall determine best available control technology emission limitations for each such device.

VI. This section shall only pertain to [PFCs] PFAS for which at least one peer reviewed study has been conducted in accordance with generally accepted scientific principles that demonstrates that the [PFC] PFAS of concern is known to cause or may reasonably be anticipated to cause acute, chronic, mutagenic, reproductive, or developmental health effects in humans as a result of exposure to such [PFC] PFAS. The implementation of this section shall only rely upon standards that are based on federal maximum contaminant levels, health advisories, provisional health advisories, standards that are derived from federally published toxicological data, or more restrictive New Hampshire state standards.

4 PFAS Program; Drinking Water Protection; Groundwater. RSA 485-H:3 and 485-H:4 are repealed and reenacted to read as follows:

485-H:3 Implementation of Drinking Water Protection Program.

I. The department shall provide low-interest loans and grants to municipalities, community water systems, and non-profit, non-transient non-community water systems whose testing of untreated source water shows an exceedance of a PFAS drinking water standard. Such loans and grants shall be provided for the projects described below begun after September 30, 2019.

II. The department shall provide the loans and grants described in paragraph I for projects needed to meet a PFAS drinking water standard if the applicant demonstrates, and the department agrees, that the project is the most cost-effective way to meet PFAS drinking water standards and if the project meets the other provisions of this chapter and department rules adopted pursuant to this chapter.

III. The department shall adopt rules, and include conditions in loan and grant documents, to ensure that the applicant has made and will make reasonable efforts to obtain and use funds from any potentially liable third party prior to and after taking a loan from the PFAS loan fund or receiving a grant, and that any money received from a potentially liable third party after the loan is provided is applied to early repayment of such loan to the extent reasonable. In addition, the department shall adopt rules establishing criteria to ensure that an applicant shall not be eligible for loans or grants for any project or portion of a project to the extent the negligence of the applicant caused the contamination that resulted in the exceedance of a PFAS drinking water standard.

IV. If the department forgives any part of a loan or provides a grant related to costs for a project for which a third party might otherwise be liable, the right to recover payment from such third party shall be subrogated to the department to the extent of such forgiveness or grant. Any money recovered by the department from such third party shall be deposited in the PFAS loan fund.

V. Loans may be made for up to the total cost of the project minus any contribution from a liable or potentially liable third party or any other portion deemed ineligible under this chapter and department rules.

485-H:4 Implementation of Groundwater, Surface Water and Aquatic Life Protection.

I. The department shall provide low interest loans and grants to publicly-owned and non-profit wastewater and/or wastewater residual treatment or storage facilities that are required to treat effluent and residuals to achieve applicable PFAS standards prior to discharge or disposal.

II. The department shall provide the loans and grants described in paragraph I if the applicant demonstrates, and the department agrees, that the project is the most cost-effective way to meet applicable PFAS standards and if the project meets the other provisions of this chapter and department rules adopted pursuant to this chapter. The applicant shall provide evidence in the application for funding that there is not a more cost-effective way to meet applicable PFAS standards.

III. The department shall adopt rules, and include conditions in loan and grant documents, to ensure that the applicant has made reasonable efforts to obtain and use funds from any liable or potentially liable third party prior to and after taking a loan from the PFAS loan fund or receiving a grant, and that any money received from a liable or potentially liable third party at a later time is applied to early repayment of the loan from the PFAS loan fund to the extent reasonable. In addition, the department shall adopt rules establishing criteria to ensure that an applicant shall not be eligible for loans or grants for any project or portion of a project to the extent the negligence of the applicant caused the contamination that resulted in the exceedance of an applicable PFAS standard.

IV. If the department forgives any part of a loan or provides a grant related to costs for a project for which a third party might otherwise be liable, the right to recover payment from such third party shall be subrogated to the department to the extent of such forgiveness. Any money recovered by the department from such third party shall be deposited in the PFAS loan fund.

5 Duties of the Department; Remediation Loan Forgiveness Program. Amend RSA 485-H:8 to read as follows:

485-H:8 Duties of the Department.

I. The department shall perform the following duties to the limit of available funding:

(a) Establishing and administrating the PFAS remediation loan and grant program to assist municipalities; community and non-profit, non-transient non-community water systems; and publicly owned and non-profit wastewater treatment facilities with the cost of complying with [state maximum contaminant level for] applicable PFAS standards.

(b) Establishing and administering a loan forgiveness program to assist disadvantaged communities with loan repayment.

(1) The project is or was necessary to comply with a [state mandated] PFAS drinking water standard or other applicable PFAS standard and the applicant for funding is a municipality, a community water system, or a non-profit, non-transient public water system, or a publicly-owned or non-profit wastewater and/or wastewater residual treatment or storage facility.

(2) The applicant has demonstrated, to the satisfaction of the department, that [low or no-cost solutions are neither viable nor effective] the project is the most cost-effective way to meet PFAS drinking water standards and other applicable PFAS standards.

(d) Awarding reimbursements to projects from the fund in a manner consistent with this chapter.

II. Every year beginning December 1, 2020, the department shall prepare and file a report with the general court evaluating the progress made relative to PFAS contamination, the efficiency of the program established under this chapter, and whether it continues to provide the maximum benefit to New Hampshire citizens, and providing any recommendations on potential additional tasks for which the fund could be used to address PFAS contamination.

6 New Section; Grants. Amend RSA 485-H by inserting after section 10 the following new section:

485-H:11 Grants. The department, to the limit of available federal funds deposited into the fund from the American Rescue Plan Act of 2021, Public Law 117-2, shall provide grants to entities meeting the eligibility requirements of RSA 485-H:3 and RSA 485-H:4 for up to 100 percent of the total eligible cost of the project.

7 Effective Date. This act shall take effect upon its passage.