STATE OF VERMONT

ENVIRONMENTAL DIVISION
Vtec
Docket No.

SUPERIOR COURT

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 Plastics 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").1 A copy 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.

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RACHLIN Electronically Filed Environmental Docket # 40-4-16 Vtec 04/13/2016
MARTIN PLLC

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
draft Health Effects Document for PFOA 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 Environmental Division within 20 days
of receiving this Notice.

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Dated at Brattleboro, Vermont this 13th 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: bfawley@drm.com
ksmart@drm.com

16625969.1

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EXIRBIT A
A
EXHIBIT

ale<c- VERMONT
Vermont Department of Environmental Conservation
Commissioner's Office

Agency of Natural Resources

MEMORANDUM

Background
Perfluorooctanoic Acid (PFOA) is a fully fluorinated, organic compound and is one of the two perfluorinated
chemicals (PFCs) that have been produced in the largest amounts within the United States. PFCs were used
in a wide variety of industrial and commercial products such as textiles and leather products, metal plating,
the photographic industry, photolithography, semi-conductors, paper and packaging, coating additives,
cleaning products and pesticides. Because of their chemical structure, PFCs, including and PFOA, are
chemically and biologically stable in the environment and resist typical environmental degradation processes,
including atmospheric photooxidation, direct photolysis and hydrolysis. As a result, these chemicals are
extremely persistent in the environment. PFOA is suspected to result in both cancer and noncancer
endpoints.
As a result of the discovery of PFOA in potable water supply wells the Agency requested that the Vermont
Department of Health develop a Health Advisory for PFOA in groundwater. A copy of the VDH Health
Advisory is attached to this memorandum.
Designation of interim groundwater enforcement standard of 20 parts per trillion for PFOA.
Pursuant to 12-702(2) of the Groundwater Protection Rule and Strategy, the Secretary of Natural Resources
has determined that a groundwater quality enforcement standard does not exist for PFOA, and has worked in
collaboration with the Vermont Department of Health to develop a Health Advisory of 20 parts per trillion.
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.
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.
This designation is a final act of the Agency of Natural Resources and is appealable to the Vermont Superior
Court, Environmental Division within 30 days of the date of this decision pursuant to 10 V.S.A. Chapter 220.

/ta
7

March 16,

16

Alyssa B. churen, Commissioner

Department of Environmental Conservation

VERMONT
Department of Health
Environmental Health
108 Cherry Street PO Box 70
Burlington, VT 05402-0070
HealthVermont.gov

Agency of Human Services

[phone] 802-863-0357
[fax]
802-863-7483
[toll free] 800-439-8550

MEMORANDUM
TO:

Chuck Schwer, Director Waste Management, DEC

CC:

Matt Chapman, General Counsel, DEC

David Englander, Senior Policy and Legal Advisor, VDH

FROM:

Sarah Vose, State Toxicologist

SUBJECT:

Perfluorooctanoic acid (PFOA) Vermont Health Advisory

DATE:

March 7, 2016

The Department of Health has derived a drinking water health advisory for PFOA of 0.02 ppb,
or 20 ppt. This value was initially provided to DEC on February 9, 2016, 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 2014 Health Effects Document for PFOA1. This document is currently under review
within EPA and is not yet finalized. The Department has no indication that the oral reference
dose provided in this draft document will change. If a different oral reference dose, revised
cancer toxicity value, or additional toxicity values are provided in the final EPA Health Effects
Document for PFOA, the Department will examine the new information and potentially reevaluate the proposed health advisory.
The health advisory for PFOA is consistent with the Department'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 the 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 exposure to PFOA from other sources.
The Department of Health requests this health advisory for PFOA be added to the list of
interim groundwater quality standards2 found on your website until the Groundwater
Protection Rule and Strategy incorporates this value. Vermont's health advisories are found
on the Department's website.3
Ihftps://peerreview.versar.com/epa/pfoa/pdf/Health-Effects-Document-forPerfluorooctanoic-Acid-(PF0A).pdf
2

http://www.drinkingwater.vt.gov/dwrules/pdf/interimqwqstandards2015.pdf

3 http://healthvermont.qov/enviro/water/documents/drinkinq

water guidance.pdf