Saint-Gobain appeal of Interim Enforcement Standard
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Transcript of Saint-Gobain appeal of Interim Enforcement Standard
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8/18/2019 Saint-Gobain appeal of Interim Enforcement Standard
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STATE OF VERMONT
SUPERIOR
COURT
ENVIRONMENTAL
DIVISION
Docket No.
Vtec
IN
RE:
INTERIM
GROUNDWATER
ENFORCEMENT )
STANDARD
FOR
PFOA
NOTICE
OF APPEAL
Pursuant to 10
V.S.A. §§
8503(a)(1)(F) and
8504(a),
and
pursuant to
Rule 5(b)
of the
Vermont
Rules for Environmental
Court
Proceedings,
notice is hereby
given
that
Appellant
Saint-Gobain
Performance P lastics
Corporation
( SGPP ) is
appealing
the designation
of
an
Interim
Groundwater Enforcement
Standard for Perfluorooctanoic
Acid
( PFOA )
the
Interim
Enforcement
Standard )
set
by
the Secretary
of the
Agency of
Natural
Resources, as described in
the
Vermont Department
of
Environmental
Conservation's
(the DEC )
Memorandum,
dated
March 16,
2016 (the March
16
Memorandum ).
Acopy of
the
March
16
Memorandum
is
attached
hereto as Exhibit
A.
The March 16 Memorandum
states
that
the
designation of
the
Interim
Enforcement Standard is a final
act
of
the
Vermont Agency
of
Natural Resources
that is
appealable to
this
Court pursuant to 10
V.S.A.
Chapter
220.
This
appeal
concerns
a former industrial facility
located at 1030 Water
Street,
North
Bennington, Vermont where
the
DEC
alleges
SGPP
is
responsible for
the
release of
PFOA
(the
Site ).
According to the
DEC,
the
Interim Enforcement
Standard
creates
a groundwater
enforcement
standard
of 20
parts
per
trillion
( ppt )
for
PFOA, imposes
investigatory
and
remedial
obligations,
and
grants the
DEC enforcement
authority for
non-compliance.
Prior to
1 This
appeal is
taken without
waiving
Appellant's
right to
appeal
and
concurrently
filed
appeal
of
the
Interim
Enforcement
Standard to the
Civil
Division of
the
Washington
Superior
Court,
pursuant
to
the
Administrative
Procedures
Act, 3
V.S.A.,
Chapter
25
and
V.R.C.P.
74
and/or 75.
PLLC
Electronically Filed Environmental Docket # 40-4-16 Vtec 04/13/2016
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8/18/2019 Saint-Gobain appeal of Interim Enforcement Standard
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the
Interim
Enforcement
Standard,
there
was no
groundwater
enforcement
standard
for PFOA.
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
dr ft
Health E ffects
Document for
PFO A still under
consideration.
The DEC
has demanded
that SGPP
take certain
investigatory
and
remedial
actions
at the
Site that will
be subject
to
the Interim
Enforcement
Standard. 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.
SGPP thus has
a particularized
interest
in this
appeal
seeking
to
overturn
the
Interim
Enforcement
Standard,
which
was
adopted
in violation
of
the law and
without
regard
to
the public
participation
and
other
requirements set
forth in
10
V.S.A. §
1392 d), and is
based
solely
on
a
draft
document
that is
still under
review
SGPP,
therefore,
has
standing
to
file
this
appeal as
a
person
aggrieved
pursuant
to 10 V.S.A.
§
8502(7).
Pursuant to
V.R.E.C.P. 5 b) 3)
and
5 c), any
interested
person wishing
to participate
in
this
appeal
must
enter
an
appearance in
writing with
the E nvironmental
Division
within 20 days
of receiving this Notice.
PLLC
2
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8/18/2019 Saint-Gobain appeal of Interim Enforcement Standard
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Dated
at Brattleboro, Vermont this
13t h
day of
April, 2016.
DOWNS
RACHLIN
MARTIN PLLC
.
Bradfor
awl
Kane H.
Smart
Attorneys for Appellant
28 Vernon Street #501
Brattleboro,
VT
05301
Tel.:
(802)
258-3070
Email:
16625969.1
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EXIRBIT AXHI IT
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8/18/2019 Saint-Gobain appeal of Interim Enforcement Standard
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ale
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8/18/2019 Saint-Gobain appeal of Interim Enforcement Standard
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VERMONT
Department of
Health
Environmental
Health
108
Cherry
Street
— PO
Box
70
Burlington,VT
05402-0070
HealthVermont gov
[phone]
802-863-0357
[fax]
802-863-7483
[toll
free]
800-439
8550
gency
ofHuman
Services
MEMOR NDUM
TO: Chuck Schwer,
Director Waste Management, DEC
CC:
Matt
Chapm an, General
Counsel, DEC
David
Englander,
Senior
Policy
and
Legal
Advisor,
VDH
FROM:
Sarah
Vose, State
Toxicologist
SU BJEC T: Perfluorooctanoic acid (PFOA) Vermont
Health Advisory
DATE: March 7,
2016
The Department
ofHealth
has
derived a drinking
water
health advisory for
PFOA
of
0.02 ppb,
or
2 0
ppt. This
value was initially provided to
DEC
on February 9, 201 6,
for
the investigation in
North Bennington,
Vermont.
The advisory
is
based
on
the oral reference dose
of
0.00002
mg/kg/day
provided
in
EPA's
draft 20 14 Health Effects Document
for
PFOA
1
This docum ent is currently under review
within EP A
and is not yet finalized. The Department has no indication that the oral reference
dose provided in this draft document will change. Ifa different oral reference dose,
revised
cancer
toxicity value,
or
additional toxicity values are
provided
in
the final EPA
Health Effects
Document
forPFOA, the Department
will examine the
new information and potentially re
evaluate
the
proposed health advisory.
The
health
advisory
for
PFOA is consistent
with the Departm ent's Drinking
Water
Guidance
and is based on the most
sensitive
receptor, a child 0 1 year
old.
The
proposed
health
advisory
is based
on the
non-cancer
endpoint. The Department looked at the
cancer
endpoint based
on
the information provided
in EPA's
2014
draft
and determined that
derivation
of he
proposed
value
based
on the
noncancer
endpoint
is
most
protective.
The
proposed
value is
based
on
ingestion
only, with a
relative source
contribution
of
20
incorporated
to
account
for
potential exposu re
to
PFOA
from
other sources.
The
Department of
Health requests
this health
advisory
for
PFOA
be
added
to
the
list of
interim
groundwater
quality
standards
found on your website until the
Groundwater
Protection Rule and Strategy incorporates this value. Vermont's he alth advisories
are
found
on the
Department's w ebsite.3
ftps://peerreview.versar.com/epa/pfoa/pdf/Health-Effects-Document-for-
Perfluorooctanoic-Acid-(PF0A).pdf
2
http://ww w.drinkingwater.vt.gov/dwrules/pdf/interimqwq standards2015 .pdf
3
http://healthvermont.qov/enviro/water/documents/drinkinq
water guidance.pdf