Lawyers for the Conservation Law Foundation argued before a federal environmental appeals board Thursday that the Environmental Protection Agency had not done its due diligence when creating a new permit for Manchester’s wastewater treatment facility.

Thursday’s oral arguments were the culmination of a months-long battle between environmental advocates, federal regulators, and city officials over what, if anything, should be done to protect the Merrimack River and people who live nearby from harmful chemicals coming out of the plant.

PFAS chemicals, also known as “forever chemicals,” are widely present in the environment and in the waste stream. Wastewater treatment processes don’t add PFAS to water, but they collect and transform those chemicals, putting them back out into the environment. A 2019 study found PFAS concentrations above federal drinking water standards being discharged from Manchester’s wastewater plant, and other studies found PFAS chemicals in fish from the Merrimack river.

The permit approved by the EPA requires the city of Manchester to monitor for PFAS chemicals in the wastewater entering their treatment plant, but it doesn’t put a limit on the levels of PFAS that can be in the water leaving the plant.

Lawyers with the Conservation Law Foundation argue the Environmental Protection Agency did not fulfill their duty to analyze whether the PFAS chemicals coming out of Manchester’s wastewater treatment plant could potentially harm the Merrimack River.

Jillian Aicher, a staff attorney with the Conservation Law Foundation, said that kind of analysis would be the first step to creating requirements to reduce the discharge of those chemicals.

“This appeal has very important implications for community members in Manchester, who are exposed to uncontrolled PFAS coming from their wastewater treatment plant with no reduction measures. And importantly here, no consideration by EPA of reduction measures,” she said.

Lawyers for the EPA argued the agency did consider the potential of effluent from the treatment facility to harm water quality. Federal regulators reviewed and agreed with an analysis done by New Hampshire state officials, they said.

In 2021, the EPA adopted a PFAS roadmap that includes restricting how much PFAS industrial facilities can discharge, and using the permitting process for wastewater facilities to reduce those chemicals in waterways.

Across the country, states have begun working to research and regulate PFAS in the waste stream. But the PFAS analysis that the Conservation Law Foundation is asking regulators to conduct for the Manchester plant is not common, said Tom Irwin, a vice president at the foundation.

He said Manchester would be an important place to start. The wastewater treatment facility, which is near some residential areas, burns its sewage sludge.

“People are being exposed to PFAS in the air, PFAS are being discharged into the water,” he said. “If the regulators take this on the way they should, this will provide a pathway for others.”

Environmental justice

The Conservation Law Foundation also argued the EPA abandoned environmental justice considerations during the permitting process without a thorough explanation.

Irwin told the Environmental Appeals Board that the agency’s reliance on executive orders that revoked Biden-era environmental justice policy was not enough, and that the policy change required more explanation.

“There is a growing body of case law that reaffirms that agencies can’t just change policy without analyzing why they’re doing so,” Irwin said in an interview with NHPR. “There’s no document from the Trump administration explaining why suddenly we don’t have to take into consideration communities that are overburdened by pollution and other health impacts.”

Lawyers for the EPA said the agency is allowed to use their discretion on environmental justice issues, and argued they did provide reasons for not considering environmental justice while they were drafting the permit.

Adam Dunville, a lawyer for the city of Manchester, also participated in the oral arguments in support of the EPA’s position. Officials with the city’s wastewater treatment plant staff did not respond to requests for comment.