Will Saint-Gobain be held accountable for polluting our state?
On August 23, 2023, Saint-Gobain announced they were closing their Merrimack, New Hampshire (New Hampshire) facility. This volte-face happened almost immediately after the state of New Hampshire Department of Environmental Services (DES), amid public pleas not to re-issue the company’s permit, gave them another five years to pollute southern New Hampshire with per- and polyfluoroalkyl substances (PFAS). Five years on top of decades of pollution (see figure below).
PFAS is an ever-expanding group of chemicals that are difficult to remove from the environment. Once they get in your body through ingestion of contaminated drinking water, food, or air we don’t know how to get them out. Therefore, they have earned the name “forever chemicals.” Documents uncovered from the case of Tennant v. DuPont, et al which facilitated the largest real-world study of the effects of public and worker exposure to perfluorooctanoic acid (PFOA), one of the more than 14,000 PFAS chemicals now known to exist, at DuPont’s plant in Parkersburg, West Virginia exposed how manufacturers covered up the dangers of PFAS chemicals. The companies have known about the health effects associated with exposure to their chemicals for decades which include, but are not limited to, birth defects, low birth weight, cancer, and chronic health effects like high cholesterol and ulcerative colitis.
The United States Environmental Protection Agency (EPA) has enabled the use of PFAS chemicals, with no proof of their safety, in the manufacture of limitless industrial and consumer products.
Question: Why did Saint-Gobain spend so much money to get a new air pollution permit and volte-face announce the plant closure?
Answer: It became too expensive and profit margins were too slim.
In 2000, Saint-Gobain purchased ChemFab, closed operations in Vermont, and moved to New Hampshire. Investigative reporting found internal Saint-Gobain memos stating the money they would save by moving since Vermont was going to compel them to install treatment on their emissions while New Hampshire would not.
Between 2016 and 2018, the state began to unravel the impacts of decades of unmitigated pollution from the Saint-Gobain facility in Merrimack. Behind closed doors, the state negotiated an agreement with Saint-Gobain to address polluted drinking water, but the agreement fell short of holding them responsible for the full extent of their pollution (Consent Decree, 2018). In turn, thousands of southern New Hampshire residents are left on their own with the cost of removing Saint-Gobain’s chemicals from their wells. The regulators and Attorney General say that they cannot hold Saint-Gobain responsible for polluted drinking water outside the Consent Decree boundary.
Also, Saint-Gobain has refused to accept full responsibility even for the wells polluted within the 2018 Consent Decree area, pointing the finger at possible other sources, while at least 1,000 more residential wells wait to be addressed some of the residents may be unaware of the potential dangers lurking in their well water.
In addition, in 2021, I called upon the state to enforce the step-out laws (polluters are required to notify all well owners within 500 feet of a polluted well but the state was only requiring Saint-Gobain to step out 60 feet) when I realized the state had loosened the laws. The state’s lack of enforcement caused significant delays in developing a full understanding of polluted wells.
Why doesn’t the agreement signed in 2018 fully incorporate the extent of Saint-Gobain’s pollution?
New York (Baker v. Saint-Gobain Performance Plastics Corp.) and Vermont (Sullivan, et al. v. Saint-Gobain Performance Plastics Corporation) successfully sued Saint-Gobain (the New York suit also included 3M and DuPont as defendants) for polluting drinking water with PFAS which resulted in settlements of $65M and $35M, respectively. There are also several ongoing cases in New Hampshire courts. The case dockets are a treasure trove of information that can be used as a roadmap for other states, and for New Hampshire to use to reopen the 2018 Consent Decree. The Consent Decree has provisions for re-opening it if it is predicated on inaccurate or false information.
Between July and September of 2022, I sent the New Hampshire attorney general a series of seven letters that outlined how Saint-Gobain withheld facts from the state that would allow the state to re-open the 2018 Consent Decree. The letters included copies of correspondences indicating the company lied about their historical use of pure PFOA products as well as internal Saint-Gobain emails, meeting notes, and other documents that detail how Saint-Gobain systematically worked to “downplay the potential health risks for PFOA.” The letters also included statements made by a former Saint-Gobain attorney, Amiel Gross, during court testimony on the company’s misrepresentation of historical use of pure PFOA that had been submitted as evidence in the New York and Vermont cases. In addition, the letters documented how Saint-Gobain’s own consultants, Barr Engineering, were kept in the dark and that the omission of this information would cause the modeling efforts to significantly underestimate the extent of Saint-Gobain’s pollution.
What will happen now?
Saint-Gobain decided to close the Merrimack plant even though the state gave them another five years to add to the mass of their pollution in the ground and water. But the steps that will be taken to close the facility are murky at best. Although the state has determined that Saint-Gobain’s chemicals are hazardous in groundwater and drinking water, the state never compelled the company to submit closure plans or set aside financial assurances that are typically required for companies that handle hazardous waste. Among other questions, will the state be able to hold Saint-Gobain accountable after they leave?
While the state currently regulates only four of the more than 14,000 PFAs chemicals, we know there are many more currently in use at the Merrimack facility. In 2018, the EPA found 180 PFAS chemicals in the company’s air pollution — only about half of which they could identify. Currently, the company is only required to test for 49 PFAS chemicals coming out of the air treatment device and although we were told that the treatment would break all the manmade C-F bonds, therefore, no PFAS would be emitted after the treatment system that is not the case.
Twenty PFAS were detected escaping treatment during the most recent testing. Even though Saint-Gobain and the manufacturers of the materials they use claim to have phased out the legacy compounds (longer chain PFAS chemicals), they are still polluting the air, ground, and water around the Merrimack facility. In addition, now some of the newer replacement chemicals, which are virtually untested for safety, are being used at the plant and are showing up in the treated industrial effluent. An article that was just published summed it up well, “the substitution of individual PFAS recognized as hazardous by other possibly equally hazardous PFAS with virtually unknown chronic toxicity can, therefore, not be a solution.”
Will the state be able to hold Saint-Gobain accountable for the pollution they leave behind as we learn more about the chemicals, they are already using but are virtually untested? Saint-Gobain has had its way with New Hampshire citizens for 23 years. The failure to take expeditious steps to hold Saint-Gobain accountable has resulted in southern New Hampshire residents experiencing significantly higher rates of kidney and other cancers.
Recently, after a recent study was published that documented “a substantial prevalence” of TFA (trifluoroacetic acid) in humans, I asked the state if they required Saint-Gobain to sample for TFA — the answer was no.
The state is still not holding Saint-Gobain accountable even after the company let more than one hundred employees go. What will happen in the future if we learn of new threats we don’t know about now or if the company stops assessing the damage and providing clean, safe drinking water for the residents of southern New Hampshire? Steps must be taken to shore up regulations press regulatory agencies to enforce the law and be proactive in supporting and enacting new laws to protect public health.
Mindi Messmer is an environmental and public scientist and author of Female Disruptors that is available on Amazon. Please let us know if you wish to arrange a speaking engagement to learn more about this and other issues.
Links to other references:
- 2014 Keller and Heckmann letter to TSCA Confidential Business Unit. Saint-Gobain has “never been a manufacturer, distributor or user of PFOA per se.”
- 2016 Archer and Greiner letter to NHDES, PFOA not “used by SGPP at the Merrimack facility at any point in time.”
- 2021 NHDES Step-out notification letter.
