The New Hampshire Department of Environmental Services on Monday filed a lawsuit against Saint-Gobain Performance Plastics after the company failed to install an air filtration device that was mandated by the state agency.
The lawsuit was filed on the same day Merrimack officials filed similar litigation against DES and Saint-Gobain claiming the company “continues to poison Merrimack.”
According to DES, Saint-Gobain was required by permit and statute to construct and install the required Best Available Control Technology (BACT); in this instance a regenerative thermal oxidizer (RTO) to correct contaminated emissions that are impacting groundwater in the area. The deadline was Feb. 11.
“The respondent has failed to do so. As such, the facility continues to emit (perfluorinated compounds) without the required controls,” K. Allen Brooks, senior assistant attorney general, writes in the court filing that seeks preliminary and permanent injunctive relief and civil penalties.
Violation of the permit, which found that Saint-Gobain caused or contributed to an exceedance of ambient groundwater quality standards, is subject to a civil forfeiture to the state of up to $50,000 for each day of the continuing violation, according to the lawsuit.
“Each day the facility operates without the required control results in greater emissions and water quality impacts than would have occurred had the required control been in place,” wrote Brooks.
DES is asking the court to issue a preliminary and permanent injunction preventing Saint-Gobain from operating, or else ensuring that Saint-Gobain achieves the equivalent of BACT emission reductions until the air filtration device is constructed and installed.
It is also seeking penalties of up to $50,000 per day for the permit violation.
Lia LoBello, spokesperson for Saint-Gobain, said Monday that Saint-Gobain is disappointed in the legal action.
“Critically, even without the RTO running, Saint-Gobain is still on track to not exceed emissions limits for the year. The regulators are aware of this, which is also why the decision from the Attorney General’s Office to then move forward and file a complaint at this juncture is surprising,” LoBello said in a statement.
“We are most concerned about the message the state’s collective actions send to our 200 employees in this facility, which provides cutting-edge and critical products for the military …”
She stressed that Saint-Gobain has been clear with DES that the one-year deadline to construct the RTO was aggressive since this is a first-of-its-kind project.
Bill Boyd, a Merrimack town councilor, said Monday that he is absolutely overwhelmed that DES listened to the concerns of town officials and the entire community to begin taking steps to require that Saint-Gobain is compliant.
“This will help ensure that rules are followed and policies are maintained so that people in this community have access to clean water and do not have to live with the threat or fear of drinking water becoming tainted,” said Boyd.
“There are a lot of people that have been involved with this from the get-go. Obviously the fight is not over — it is probably just beginning.
“This validates the concerns that the town of Merrimack has had with Saint-Gobain for the last four years,” he said, adding this is a necessary first step in seeking relief.
While town officials are pleased about the lawsuit filed by DES at Hillsborough County Superior Court South in Nashua, they still included DES as a defendant in their lawsuit against Saint-Gobain.
In their own court filings, attorneys Demetrio Aspiras and Joanna Tourangeau maintain that DES lacks the authority to issue a permit that allows an emitter such as Saint-Gobain to contribute to exceeding ambient groundwater quality standards.
The permit issued to Saint-Gobain by DES calculated two perfluorinated compound limits to ensure that emissions would not exceed ambient groundwater quality standards, however Merrimack’s legal team argues in court documents that there are four perfluorinated compounds that need to be considered.
Earlier this month, Tom Koenig, Town Council chairman, called on DES to enforce the terms of the permit issued to Saint-Gobain and require that it stop operations until the RTO is operational.
“We are thrilled that DES is taking action against Saint-Gobain and we hope the court approves injunctive relief to stop them from continuing to pollute,” Koenig said on Monday.
Hundreds of homes with private, contaminated wells in the region have been connected to municipal water after Saint-Gobain extended water lines in several communities once contamination was discovered at one of its faucets at the Merrimack plant in 2016.
Various levels of PFOA are still being found in groundwater throughout Merrimack and surrounding towns, with 25 potential contamination release areas under investigation at the Saint-Gobain plant.