After years of efforts to address toxic chemical emissions from the Saint-Gobain plastics factory in Merrimack, New Hampshire and the town are separately suing the company for delays in the installation of a required treatment system.
The lawsuits filed this week in Hillsborough Superior Court focus on air emissions of harmful PFAS chemicals, which have settled into drinking water serving hundreds of homes in the area.
Lawyers for the state and Merrimack are seeking injunctions as soon as possible to shut down the factory until a required upgrade is installed or emissions are otherwise controlled. The state attorney general’s office wants to impose the maximum civil penalty of $50,000 a day until that happens.
“They really need to cease operations,” said Merrimack town council vice chair Bill Boyd. “In the grand scheme of things, I just want Saint-Gobain to be a good corporate partner to the town.”
Saint-Gobain’s North America CEO Mark Rayfield said in an interview that the lawsuits send a discouraging message to the factory’s 200 workers. He said the company “has never stopped working” on the required emissions upgrades, which they hope to complete this summer.
PFAS are a large family of industrial compounds that persist in the environment and have been linked to serious health problems, including high cholesterol, kidney and liver disease, immune and reproductive deficiencies and developmental delays.
The chemicals form protective coatings and were once a key ingredient in Teflon. Saint-Gobain says it hopes to eventually phase out its use of PFAS, but hasn’t gotten all the way there yet. The compounds are not federally regulated, and New Hampshire has limits on only four types.
'Finger-pointing' over delays
Saint-Gobain first reported elevated PFAS emissions to the state Department of Environmental Services in 2016. This led to a consent decree, with the company paying for bottled water, new infrastructure and treatment on hundreds of contaminated wells in Merrimack, Litchfield and Bedford.
Since then, New Hampshire has introduced some of the country’s strictest limits on four kinds of PFAS, including in groundwater, where air emissions are deposited and build up over time.
Last year, the state gave Saint-Gobain a temporary air permit that required it to curtail further air emissions of PFAS with the "best available control technology" – in this case, a $4.4-million-dollar smokestack upgrade called a regenerative thermal oxidizer, a kind of incinerator.
The deadline for the installation of that system was Feb. 11 of this year. Saint-Gobain sought an extension last fall, but the state denied it, saying it would put public health at risk. The company continued to report to state and local officials that it would not meet the deadline.
Rayfield, the CEO, said they’ve faced delays because of COVID-19 and Merrimack’s appeal of the permit. He also said this is novel technology that’s challenging to complete in a year.
“I respect, I really do, the fact that people say, ‘I want more, I want faster, I want other things,’ but we’re working as quickly as we can within the confines of a complex situation,” he said.
The new oxidizer is set to be delivered in April, he said, and could be online by June or July – nearly a year and a half after the permit requiring it was first issued.
But before then, Rayfield said, they’ll need Merrimack to issue local permits that have been held up for about two months. One would allow construction of a concrete pad beneath the oxidizer.
"My message to the town is ... we believe we have a common interest in getting this [oxidizer] up and running as soon as possible," he said. "If we could get through that quicker, we could knock a day off our time...which I think is in the interest of the town and the citizens."
Rayfield argued the town shouldn’t need a comprehensive project plan to grant the concrete pad approval, but said Saint-Gobain has met local requests for more details as part of the permit process.
Boyd, the town councilor, said that “couldn’t be further from the truth.” He described the company’s application as a “discussion-only plan” lacking in specifics and code requirements.
“I’ve seen more from neighbors that are looking to get a variance to build a deck on the back of their house. That was the final straw – it was procrastination, procrastination, finger-pointing,” Boyd said. “It’s not just intellectual dishonesty with the facts. It’s a callous disregard for what this community has been dealing with the last four years.”
Town ‘poisoned’ by factory
Merrimack’s suit also names DES, asking the court to declare that it would be illegal for the agency to act in any way that allows continued emissions from Saint-Gobain. The town claims activities at the plant in its current form are already worsening existing violations of state law.
Their lawsuit cites 2019 well tests at the plant showing levels of state-regulated PFAS that were hundreds or thousands of times higher than the state now allows or that research says are safe.
Saint-Gobain’s regional environmental health safety manager Chris Angier said the factory will stay in compliance this year with emissions limits on those regulated chemicals.
For one type, PFOA, that limit is less than half a pound per year. As of summer 2019, according to DES records, Saint-Gobain was emitting about three-quarters of a pound of PFOA annually, and Angier said they’ll be able to cut that down.
That 2019 data also cited Environmental Protection Agency tests showing the factory was emitting between 864 and 2,326 total pounds of mostly unregulated PFAS chemicals per year.
Government research links many kinds of PFAS, beyond what the state regulates, to potential health problems. But Angier argues those less-studied chemicals can’t be reliably monitored.
Either way, Merrimack officials like Boyd say it’s all more than the town should have to bear.
“If Saint-Gobain doesn’t fix the problem, they’re just exacerbating a problem that already exists,” Boyd said.
The town's lawsuit also alleges the factory’s current operations are a "public nuisance" and traces how Saint-Gobain came to Merrimack. This dates to the 1980s, when Saint-Gobain’s precursor, ChemFab, was accused of causing similar contamination in Vermont and New York.
The complaint says news reports from the time show that Saint-Gobain moved its Vermont operation to New Hampshire in the 2000s in order to avoid costly pollution laws. Saint-Gobain’s Rayfield questioned that narrative but said he wasn’t there at the time.
He and Angier said the company may look for other ways to lower its emissions before the oxidizer is installed, but they declined to give specifics, citing ongoing litigation and negotiations with the state. The state also declined to comment in detail on either lawsuit.
CORRECTION: An earlier version of this story incorrectly stated the estimated cost of the delayed project. It is $4.4 million, not $42 million. This story has been updated.