MONTPELIER — The company believed by the state to be responsible for contaminating private water supplies in southern Vermont has filed an appeal challenging the state’s acceptable level for perfluorooctanoic acid.
A former Chemfab factory in North Bennington, purchased by Saint-Gobain Performance Plastics in 2000 and shuttered in 2002, used the chemical known as PFOA to manufacture non-stick coatings like Teflon. The chemical is now showing up in groundwater and soil samples collected near the former factory.
Agency of Natural Resources Secretary Deb Markowitz created a 20 parts per trillion limit for PFOA in groundwater on March 16 through an Interim Enforcement Standard. Setting an interim standard is allowed under the state’s existing Groundwater Protection Rule and Strategy. It allows the state to impose investigatory and remedial obligations on Saint-Gobain and grants the Department of Environmental Conservation with enforcement authority if the company is not compliant.
Other states, including New York, have higher levels. In New York, which is dealing with PFOA contamination in the nearby town of Hoosick that is believed to come from another Saint-Gobain facility there, the standard is 100 parts per trillion. The federal Environmental Protection Agency has a guidance level of 400 parts per trillion.
Saint-Gobain has filed a complaint in Washington Superior Court in Montpelier seeking a declaratory judgement striking down the interim standard and an appeal in the state’s Environmental Court that challenges the validity of the 20 parts per trillion level.
DEC Commissioner Alyssa Schuren noted in a March 16 memo detailing the Interim Enforcement Standard that the Agency of Natural Resources worked with the Department of Health to develop a Health Advisory of 20 parts per trillion for PFOA. The Health Advisory was created on March 7.
“This Health Advisory shall serve as an interim groundwater enforcement standard until such time as the Agency of Natural Resources amends the Groundwater Protection Rule and Strategy to include this Health Advisory as a final standard,” Schuren wrote. “The effect of this designation is that for purposes of the Investigation and Remediation of Contaminated Properties Procedure, the 20 ppt is a remedial standard for groundwater cleanup for any release of PFC compounds that result in groundwater contamination of PFOA.”
Saint-Gobain’s appeal, filed on April 13, challenges the interim enforcement standard as a “person aggrieved” on the grounds that it “was adopted in violation of the law and without regard to the public participation and other requirements” required by statute.
“Prior to the Interim Enforcement Standard, there was no groundwater enforcement standard for PFOA,” the company stated in the appeal. “The Interim Enforcement Standard of 20 ppt for PFOA was designated without public comment and is based on a one-page health advisory issued by the Vermont Department of Health. The health advisory is based solely on the United States Environmental Protection Agency’s 2014 draft Health Effects Document for PFOA still under consideration.”
“The DEC’s purported enforcement powers for PFOA were not available to the DEC before the designation of the Interim Enforcement Standard, nor was SGPP subject to such a stringent, unsupported groundwater enforcement standard,” the appeal states.
Markowitz said Tuesday the appeal did not come as a surprise.
“They warned us in an earlier meeting that they were looking at challenging the 20 parts per trillion because it’s different than surrounding states. We feel really confident about it,” she said.
Markowitz said the state is using the existing law as it works to obtain approval from the Legislative Committee on Administrative Rules on the interim standard that formalizes the 20 parts per trillion level. LCAR is scheduled to take up the interim rule on Thursday.
“We already have the authority in our law to protect public health and drinking water and that allows us to say to a polluter or a party who is legally responsible for pollution that, ‘You have to clean it up and you’ve got to restore the condition to what we think is a safe level,’” she said. “Our practice is to be more specific when we know of a particular contaminant and set a standard.”
DEC’s legal counsel, Matt Chapman, said the agency followed proper procedures in setting the interim standard and is now in the process of formalizing the standard through the emergency rule-making process. He said he does not believe Saint-Gobain’s complaint and appeal have any merit and will be moot when the interim rule is adopted.
“There was no sort of methodology developed for this particular standard. This is a fairly routine thing the state does regularly,” he said.
“This is the exact same methodology that we’ve used consistently in other cases,” Schuren said.
The state has collected water samples from 232 separate water supplies, mostly private wells, in North Bennington. So far, 126 of the water supplies have registered PFOA levels above the 20 parts per trillion health advisory limit set by the state. Another 64 samples were collected last week, according to state officials, from expanded areas of concern near Old Bennington and near a former landfill in Bennington. Additional samples will be collected this week.
The appeal comes as state officials continue to negotiate with Saint-Gobain over long-term remediation efforts. Gov. Peter Shumlin announced Monday that the company has agreed to pay $30,000 for two engineering studies in Bennington and North Bennington. The studies will determine both the feasibility and cost of expanding existing municipal water supply infrastructure to homes impacted by PFOA in the two towns.
“This is disappointing but we’ve enjoyed a productive relationship with Saint-Gobain and I expect that to continue despite this. Just yesterday the company agreed to fund studies to explore expanding the municipal line to affected wells. We stand by our 20 parts per trillion number,” Shumlin spokesman Scott Coriell said.
Schuren said she hopes the appeal will not hinder the ongoing discussions with the company.
“It’s unfortunate that they felt the need to file the suit and we will continue to work with them to address the issue in North Bennington but we stand by our standard of 20 parts per trillion,” Schuren said. “We do appreciate their commitment to pay for the engineering studies, the bottled water and the filtration systems at people’s homes.”
Schuren said the company’s appeal of the standard likely “just comes down to cost for them.”
“As we move forward the price tags on either remediation or municipal line extensions will likely get higher than the numbers that we’ve been dealing with to do date,” she said.
Saint-Gobain has agreed to pay for drinking water sampling of more than 300 private wells in the areas of concern. Bottled water is also being provided by the company at homes and businesses that registered PFOA levels above 20 parts per trillion, as well as point-of-entry filtration systems. More than 100 filtrations systems have been installed by the company’s contractor, according to state officials.
The state has developed “very conservative estimates of worst-case scenarios” for costs that Saint-Gobain could end up paying, Schuren said. Providing bottled water to residents and businesses in North Bennington could reach $650,000, while the total cost of water sampling could be as high as $500,000.
“That adds up to $1.15 million in worst-case scenario estimates,” she said. “We hope to never realize these costs.”
The water filtration systems could end up costing the company $3 million. Saint-Gobain has agreed to fund engineering studies that will review the extension of municipal water lines but the discussion of whether the company will agree to pay the cost of the extension is ongoing.
“It would be millions and we don’t have a commitment on that,” Schuren said.
Saint-Gobain spokeswoman Dina Silver Pokedoff said the company’s appeal is in the interest of ensuring a fair process for setting an enforceable standard.
“Saint-Gobain Performance Plastics filed an appeal regarding that decision since it’s critical for us, the North Bennington community, Vermonters and all involved to participate in the fair rulemaking process and understand the specific science the state has evaluated and vetted that led to setting the limit at this level,” she said. “Saint-Gobain will comply with any and all laws of the state and our appeal does not impact the commitments we have already made.”
“We respect Vermont’s right to set its own PFOA limits in a fair manner and based on sound science, but it’s important that the State adopt a standard that is reasonably appropriate, protective and realistic from a public health standpoint,” Pokedoff added.
Read the appeal below:
Read the complaint filed in Washington County Superior Court: