25 Walton Street, Saratoga Springs, New York 12866

P 518.886.1902 www.ruppbaase.com

PHILLIP A. OSWALD
OSWALD@RUPPBAASE.COM

June 23, 2020

Via Electronic Mail &

Registered Mail – Return Receipt Requested

Mr. David Maguffin Mr. Prince Knight

Plant Manager Environmental & Regulatory Compliance
Norlite, LLC Manager
628 South Saratoga Street Tradebe Environmental Services, LLC
Cohoes, NY 12047 234 Hobart Street
David.Maguffin@tradebe.com Meriden, CT 06450
Prince.Knight@tradebe.com

Dear Mr. Maguffin & Mr. Knight:

Re: Notice of Intent to Sue Tradebe Treatment and Recycling and Norlite for
Violations of the Resource Conservation and Recovery Act
Our File No.: 5278.27341

Pursuant to section 7002(a)(l)(B) of the Resource Conservation and Recovery Act

(“RCRA”) (42 U.S.C. § 6972(a)(l)(B)), this letter constitutes notice to each of the Responsible
Parties — Tradebe Treatment and Recycling, LLC (“Tradebe”) and Norlite, LLC (“Norlite”) —
as well as the U.S. Environmental Protection Agency (“EPA”) and the New York State
Department of Environmental Conservation (“DEC”), of the intent to sue for abatement of an
imminent and substantial endangerment to public health and the environment in connection with
contamination caused by the incineration and other disposal of solid and/or hazardous waste in
the form of “Aqueous Film Forming Foam” (“AFFF”) and AFFF-contaminated materials, which
contain various per- or polyfluoroalkyl compounds (“PFAS”) and related chemicals. This
contamination is ongoing due to the continuing presence of PFAS compounds and PFAS
precursors at several locations in Cohoes, New York surrounding Norlite’s facility there, as well
as the likelihood that the incineration of AFFF will continue there in the future. This office
intends to seek, inter alia, injunctive relief to remedy the releases of these toxic chemicals that
have occurred thus far and to enjoin any future releases.

A. NOTICING PARTIES.
This notice is being provided on behalf of Saratoga Sites Against Norlite
Emissions (“S.S.A.N.E.”), which has a mailing address of 12 Saratoga Sites, Cohoes, NY 12047.
S.S.A.N.E. is represented by this office, and all communications are to be directed hereto.

Buffalo |Rochester |Williamsville |Ellicottville | Jamestown

ruppbaase.com
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B. RESPONSIBLE PARTIES.
Section 7002(a)(l)(B) of RCRA (42 U.S.C. § 6972(a)(l)(B)), allows affected
citizens to bring suit against:

[A]ny person, . . . including any past or present generator, past or

present transporter, or past or present owner or operator of a
treatment, storage or disposal facility, who has contributed or who
is contributing, to the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous waste which
may present an imminent and substantial endangerment to health
or the environment.

As transporters of hazardous and/or solid waste and as owners and operators of a treatment,
storage, and disposal facility of hazardous and/or solid waste, the parties listed below are
responsible for the imminent and substantial endangerment that is at issue.

1. Tradebe.
Tradebe is a Delaware Limited Liability Company in the business of waste
collection, transportation, management, and disposal. On or around November of 2018, Tradebe
and the Defense Leasing Agency (the “DLA”) entered into a contract (the “DLA Contract”),
whereby Tradebe stated its intent to perform the “removal, transportation, treatment and
disposal” of “AFFF” “[c]oncentrate [l]iquid,” AFFF “[r]insate,”1 and AFFF-contaminated
“solids such as soil, gravel, sludge, and/or debris2 (e.g., PPE, filter media, tank bladders,3 hoses,
etc.” Per the DLA Contract, Tradebe stated its intent to transport, treat, and dispose of these
waste materials knowing that they “are believed by the [U.S.] Government to contain or
potentially contain unknown concentrations of [PFAS] such as perfluorooctane sulfonate
(‘PFOS’) and/or perfluorooctanoic acid (‘PFOA’).”

1
According to the DLA Contract, Tradebe intended and understood the term “rinsate” to mean
“AFFF-contaminated water, including but not limited to surface, storm, and groundwater” and/or
a “highly water-diluted AFFF product that has been generated as a result of a rinse out process of
various tanks and firefighting equipment.”
2
Again according to the DLA Contract, Tradebe intended and understood that the term “debris”
was to mean, inter alia, a “solid, liquid, or sludge waste stream.”
3
Again according to the DLA Contract, Tradebe intended and understood the phrase “bladder
tank” to mean “a removable ‘bladder’ that is largely constructed of a pliable plastic or rubber
combustible material,” which “line[]” “[s]teel bladder tanks” that “are used by the Government
to store and discharge AFFF liquid concentrate into various fire suppression systems.” Also,
Tradebe understood that these bladder tanks “each may contain a small volume of residual AFFF
liquid.”
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These waste materials are to be collected from various Department of Defense

(“DOD”) and/or Department of Homeland Security (“DHS”) installations in the following states:
Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Maine,
Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Virginia, West Virginia, and Wisconsin. According to the DLA Contract, after
these waste materials are collected, Tradebe has them transported in “pales, drums, boxes,” bulk
containers or totes, “rolloff box[es],” and/or “tanker[s] or vacuum truck[s]” to a disposal facility
to be incinerated. Specifically, the waste materials that are being “ordered for destruction and
disposal [are] being discarded by the [U.S.] Government and will require thermal destruction via
incineration at a fully RCRA permitted Treatment, Storage, and Disposal Facility.” Moreover,
according to the DLA Contract, “incineration/thermal destruction other than use as a fuel[] [] is
required for the disposal of all waste under th[e] [DLA] [C]ontract.”

Consistent with its stated intent under the DLA Contract, Tradebe, in fact, has
procured the shipment, treatment, and disposal of these wastes at a facility that is owned and
operated by Norlite and located at 628 South Saratoga Street, Cohoes, NY 12047 (the “Norlite
facility”). The shipments, treatment, and disposal of these wastes occurred between January 1,
2018 and December 30, 2019. During this time, millions of pounds of these wastes were shipped
into, treated, and disposed of at the Norlite facility. Furthermore, per the DLA Contract, Tradebe
has expressed an intent to ship, treat, and dispose of millions more pounds of these wastes at the
Norlite facility. Also, even though the burning of AFFF is temporarily prohibited under a one-
year local moratorium, the contamination resulting from Tradebe’s burning to date remains a
present, ongoing, substantial, and imminent threat — which is discussed below in greater detail.
Moreover, if the moratorium expires and a state law is not passed, Tradebe has stated its intent to
and the circumstances are ripe for it to continue to ship, treat, and dispose of AFFF at the Norlite
facility. In fact, the DEC has previously indicated that it intends for vast amounts of AFFF that
have been collected around the state to be incinerated, even though it has recently delayed these
plans due to a “national knowledge-gap regarding . . . thermal destruction of PFAS compounds.”

2. Norlite.
The Norlite facility is an approximate 221-acre site that is located in Albany
County, with approximately 40 acres of the site being located within the limits of the City of
Cohoes and the remaining being located in the Town of Colonie. The area immediately north of
the facility is a mixed residential and commercial area of the City of Cohoes. The eastern
boundary of the facility is a railroad track, which immediately adjoins a residential, low-income
housing complex that is owned and operated by the Cohoes Housing Authority. To the east of
the housing complex, there is an office complex and then the Hudson River, which is
approximately one mile east of the facility. Undeveloped land lies immediately south of the
facility, which is followed by the City of Watervliet. Further to the south are the northern
suburbs of Albany, with residential and commercial areas on the southeast corner of the facility.
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Norlite produces a “porous ceramic material” and other materials that it sells for
use in various construction markets, including structural concrete, masonry, geotechnical fill,
bridges, horticulture, internal curing, asphalt, and others. It makes this material by mining shale
on site at a quarry and then transporting it to a plant area on site. The shale is heated in two dry-
process rotary kilns to produce expanded aggregate or “lightweight aggregate” that is used to
produce lightweight building materials and construction products. To heat the burning zone of
both kilns, liquid low-grade fuel (“LLGF”) is used; the composition of LLGF varies from batch
to batch because it is a mixture of various waste materials, including liquid hazardous wastes.
The shale and fuels are fed into the kilns from opposite ends, and the kilns are slightly tilted such
the shale moves towards the flame. As the shale heats, the internal gases of the shale expand,
which yields its distinctive lightweight characteristics.

During the heating part of its production process, various toxic emissions are
produced as exhaust or gases leaving the kilns (also known as “flue gas”), which is known to
include both large and small toxic particulate matter. Various emission control and temperature-
reduction measures are employed in an attempt to separate these toxic particulates from the
exhaust before it is ultimately released into the air. The toxic particles — both the larger “fines”
and the smaller dust particles — ostensibly are transferred to two silos where they are stored and
later disposed of through unspecified means. The exhaust is also passed through semi-dry and/or
wet “scrubbers,” which create a wastewater stream from the injection of a chemical solution to
treat acid gases that still remain in the exhaust. Norlite discharges these pollutants through
various outfalls that are point sources, and these pollutants eventually lead to the municipal
storm-sewer system, the Saltkill Creek, and the Mohawk River. After passing through the
scrubbers, the exhaust is emitted into the air from two stacks.

To increase its profitability, Norlite accepts hazardous wastes for a fee and then
uses these wastes as fuel to produce its shale products, rather than purchasing traditional fuels.
The Norlite facility also contains and Norlite operates several bulk storage tanks and a container
storage area for storing and managing hazardous wastes to be used as LLGF for its kilns. Again,
the LLGF is a mixed composition of various hazardous and solid wastes in differing quantities.
Norlite has been receiving the AFFF that Tradebe contracted with the DLA to incinerate, as well
as possibly receiving AFFF from other sources to incinerate. In fact, in a May 15, 2015 letter
from Tradebe to the DLA, the former confirms that the Norlite facility is the only approved
facility willing to accept AFFF for incineration, as every other facility issued “rejection notices”
to Tradebe “based on the volatility and uncertainty of the destruction of . . . PFOS & PFOA’s.”
Norlite has permits from the DEC to burn certain hazardous wastes as fuel for its kilns, but the
DEC has confirmed — in a letter dated June 18, 2020 — that these “current” permits “were
issued without addressing PFOA, PFOS, or other emerging contaminants.”
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C. IMMINENT AND SUBSTANTIAL ENDANGERMENT.

The transportation, storage, treatment, incineration and other disposal of AFFF
and AFFF-related wastes and the continuing, ongoing contamination resulting from these
activities by Tradebe and Norlite present an imminent and substantial endangerment to the public
health and the environment. As discussed in greater detail below, this conclusion cannot be
legitimately disputed given the following: (1) the known association between PFAS compounds
and several serious, adverse health effects; (2) the fact that AFFF contains hundreds — if not
thousands — of PFAS compounds; (3) the evidence supporting that incineration is not effective
to destroy PFAS in a manner that does not cause further contamination; and (4) the presence of
PFAS compounds in the soil and water of communities surrounding the Norlite facility.

1. The PFAS Crisis.

PFAS refers to a generic family of man-made chemical compounds that have a
chemical structure consisting of a chain of carbon atoms — anywhere between 4 to 16 — that
are surrounded by fluorine atoms. PFAS compounds are thermally, chemically, and biologically
stable in the environment and do not degrade by most natural processes, including
biodegradation, atmospheric photooxidation, direct photolysis, and hydrolysis. This stability
makes them highly resistant to and able to repel fire, oil, grease, water, et cetera. Due to their
unique resistance in this respect, PFAS compounds were widely used for a variety of consumer
products and industrial purposes since, at the latest, the mid-twentieth century. At the end of the
twentieth century, PFAS compounds began to be phased out because the resulting environmental
harms were becoming more and more apparent. However, much is still unknown about PFAS
compounds, especially given that a recent inventory suggests that more than 4,700 varieties of
PFAS compounds could have been or may still be in the global market. In fact, in 2015, the
Agency for Toxic Substances and Disease Registry (the “ATSDR”), the Public Health Service,
and the U.S. Department of Health and Human Services (“DHHS”) completed studies that
support that several PFAS compounds other than those more commonly researched also likely
are adverse to human health and the environment.

There is mounting scientific evidence associating PFAS compounds with a host of

health conditions. According to the ATSDR PFAS Toxicological Profile, “a large number” of
epidemiological and animal studies have demonstrated that exposure to PFAS compounds is
associated with the following serious medical conditions: liver damage, high cholesterol,
cardiovascular complications, thyroid disease, immune deficiencies, reduced fertility, and low
birth weights. There also is scientific evidence that exposure to PFAS compounds is associated
with obesity, diabetes, asthma, pancreatic cancer, and adverse effects on children’s cognitive and
neurobehavioral development. One of the most notable adverse health effects that has been
statistically associated with increased exposure is a suppressed immune response. In this respect,
at least one scientific study has linked PFAS exposure in children to deficits in immune function,
including decreased effectiveness of childhood vaccinations — such as those for rubella and
mumps. Associations also have been made between increased exposure to PFAS compounds
and decreased effectiveness of influenza vaccination.
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The association between exposure to PFAS compounds and these adverse health
effects has been acknowledged by several governmental authorities, including being documented
by the EPA’s own human health toxicity assessment. However, there has not been uniformity
from either governmental authorities or the scientific community on what levels of various PFAS
compounds are considered “safe” for human exposure. For example, looking at just PFOA, the
EPA initially estimated “safe” levels to be around 400 parts per trillion (“ppt”), but it then
lowered that level to 70 ppt in 2016 — an 82.5% adjustment. Furthermore, in its 2018 Draft
PFAS Toxicological Profile, the ATSDR issued yet another different and lower minimal risk
level (“MRL”) for PFOA at 6.9 ppt — a 98.28% adjustment from the EPA’s original level and a
90.14% adjustment from the EPA’s 2016 reduced level. More recently, as of June of 2019, the
National Institute for Environmental Health Sciences (the “NIEHS”) has been conducting a study
that has yielded new data that suggests that safe levels of PFAS exposure for humans are as low
as 1.0 to 0.1 ppt.

Furthermore, many governmental authorities and most research focus on PFOA,

PFOS, and about a couple dozen other PFAS compounds, while overlooking thousands of others
when assessing “safe” levels, if any. For the most part, the EPA has focused solely on PFOS and
PFOA. The ATSDR focused on PFOS and PFOA as well, but also issued MRLs for two other
PFAS compounds — PFHXs and PFNA. Nevertheless, increasing scientific data suggests that
the majority of PFAS compounds, if not all, that have been identified and studied are associated
with the same adverse health effects that were discussed above. Even further compounding the
diverse nature of the threat posed by PFAS compounds, studies have shown that PFAS
“precursors” can metabolize and/or degrade into terminal PFAS compounds when in the human
body and/or the environment. PFAS precursors are chemical compounds that can biotically or,
possibly, abiotically break down into PFAS. In sum, given the causal connection between PFAS
and several adverse health conditions, the inability to conclusively determine what levels of
PFAS are safe and for which compounds renders it highly likely that any non-minimal release of
PFAS into the environment poses a substantial and imminent threat to public health.

2. A Crisis Within a Crisis – AFFF.

Since around 1960, AFFF has been used as a fire-suppressant agent — either
alone or in conjunction with other fire-suppressant agents — to extinguish flammable liquid pool
fires. AFFF was used by the U.S. military, foreign militaries, and by various civilian entities
worldwide as either a 3% or a 6% concentrate, which refers to the percentage of the foam
concentrate that is mixed with either fresh or sea water by a proportioning nozzle. When ejected
from the nozzle, AFFF coats accumulations of hydrocarbon fuel with a layer of foam that acts as
a thermal and evaporation barrier to inhibit and eventually suffocate combustion. AFFF
concentrates consist of water, compounds such as glycol ethers and ethylene or propylene glycol
that are added to extend the lifetime of the foam, and fluorocarbon and hydrocarbon surfactants.
Fluorinated surfactants are used in all current AFFF formulations, and, in fact, these compounds
are explicitly mandated by the specification for AFFF purchases by the U.S. military. PFAS
compounds are one class of fluorosurfactants that have been used in AFFF formulations, and
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they are an important component of AFFF because, as discussed above, they are highly resistant
to and do not break down when exposed to high temperatures.

In addition to actual fire suppression, AFFF also has been frequently used for
firefighting training. Both actual firefighting and training have resulted in documented,
widespread contamination at military bases, training facilities, airports, and the surrounding
areas. Contamination resulting from the use of AFFF includes a wide variety of both known and
unknown PFAS compounds, but a prevalence of sulfonic and butanoic varieties of PFAS
compounds are generally characteristic of these sites. This includes the following compounds:
PFOA, PFOS, PFPeA, PFHxA, PFBS, PFBA, PFHpA, PFHxS, and PFNA. The diversity in
PFAS compounds most likely is attributed to the fact that AFFF were always manufactured to
meet firefighting specifications, rather than being required to contain a specific mixture or type
of PFAS compounds. The result is that, as a generic category, AFFF is a non-uniform mixture of
varying proportions of both known and unknown PFAS compounds.

In or around the mid-2010’s and due to the growing environmental concern

surrounding PFAS compounds — much of which was briefly discussed above — both military
and non-military users began phasing out AFFF that contains PFOA and PFOS. However, the
military and various governmental authorities have been collecting and continue to collect large
stockpiles of unused AFFF that contains these PFAS compounds — and others — from various
installations and locations around the country and even the world. It is believed that millions
upon millions of pounds of AFFF has been collected and is being stored. Indeed, the DLA
Contract evinces that the military and the DHS has already collected and is storing millions of
pounds of AFFF. Again, as discussed above, the very language of the DLA Contract establishes
that the AFFF that has been collected is believed to “contain unknown concentrations of [PFAS],
such as [PFOS] and/or [PFOA].” Additionally, at one point and according to a presentation by
the DEC, the DEC itself was furthering an AFFF collection and storage program for fire
departments across New York. When this collection initially began years ago, the intended
method of disposal of the collected AFFF was incineration, which is evinced by the DLA
Contract and the DEC’s presentation.

3. Incineration of AFFF.
Up until recently, incineration has been the chosen disposal method for AFFF by
the military and even various governmental authorities. While there have been two studies that
have concluded that PFAS incineration should not result in further contamination, the credibility
of these studies is minimal because they were funded by companies that have an obvious bias.
One study was funded by DuPont, which used PFAS for decades in manufacturing Teflon for
various consumer products. Another study was funded by 3M, which actually developed AFFF
and was the exclusive supplier of AFFF to the military for decades. Hence, both of these
companies likely have an incentive to show that there is a safe method of disposal for a
dangerous and highly toxic chemical that they flooded into the market for decades.
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However, very little independent, impartial research exists on the viability of

using incineration as an effective means of destroying or disposing of PFAS waste, including
AFFF. One independent study has briefly addressed this issue, and the results from that study
were that PFOA remained detectible in all six samples that were tested for PFAS compounds
following the incineration of PFAS waste. The author in that study concluded that these test
results “convey[ed] the impression that modern incinerators cannot fully destroy . . . PFOA –
even under optimal operating conditions.” In fact, in a document from 2017, the Air Force
acknowledged that “the high-temperature chemistry of PFOS and PFOA has not been
characterized, so there is no precedent to predict products of pyrolysis or combustion,
temperatures at which these will occur, or the extent of destruction that will be realized.” Further
compounding the doubts that incineration would be effective is the obvious fact that AFFF was
designed and manufactured to resist extremely high temperatures in the first place.

These concerns culminated in a Technical Brief issued by the EPA in August of

2019, in which the EPA formally acknowledged that incineration is far from a proven, definite
means for destruction of PFAS compounds. Specifically, the EPA concluded that based on the
available data, “[t]he effectiveness of incineration to destroy PFAS compounds and the tendency
for formation of fluorinated or mixed halogenated organic byproducts is not well understood.”
Moreover, the EPA stated that the “[i]ncomplete destruction of PFAS compounds can result in
the formation of smaller PFAS products, or products of incomplete combustion (PICs), which
may not have been researched and thus could be a potential chemical of concern.” Also, these
dangers can be easily compounded by “insufficient temperatures, time, and mixing.”
Importantly, what is sufficient in these respects is unknown given that “[f]ew experiments have
been conducted under oxidative and temperature conditions representative of field-scale
incineration” and given the “lack of necessary measurement methods suitable for the
comprehensive characterization of fluorinated and mixed halogenated organic compounds.”

Recently, on June 18, 2020, the DEC issued a letter to Norlite that dovetails with
and reinforces the concerns that were raised by the EPA in its Technical Brief, as well as those
raised by scientific literature on the subject. The DEC acknowledged that there is a “national
knowledge-gap regarding the potential for thermal destruction of PFAS compounds.” As a result
and despite apparently knowing of the AFFF burning that was occurring at Norlite for years, the
DEC is undertaking a “joint initiative” with the EPA “to develop performance testing protocols
and advance a detailed analysis of ongoing and proposed thermal treatment research in other
parts of the country.” The DEC further acknowledged that Norlite’s permits were issued without
consideration of PFAS compounds, and, as a result, the DEC is requiring that Norlite submit new
application materials to address the potential environmental impacts of burning AFFF.
Obviously, given that this has not been completed yet, the burning of AFFF at the Norlite facility
occurred without any tested or proven protocols.

Therefore, although various military and governmental authorities had initially

collected AFFF with the likely intent of disposing of it through incineration, that method of
disposal is not proven to be effective or safe. Tradebe itself was notified of the problems with
incineration when it admitted that several incineration facilities had sent it “rejection notices . . .
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based on the volatility and uncertainty of the destruction of [PFOS & PFOA’s].” In fact, as
discussed in the next section, testing performed in the immediate vicinity around the Norlite
facility and the nearby neighborhoods proves that incineration, in fact, is not completely
destroying PFAS compounds, but, instead, is releasing known — as well as most likely unknown
— compounds into the surrounding environment and thereby leading to new contamination.

4. Environmental Testing in Communities Around the Norlite Facility.

Bennington College recently conducted a study that supports that incineration of
AFFF at the Norlite facility is not completely disposing of or destroying PFAS compounds, but,
instead, is emitting and discharging them into the surrounding communities and environment.
The same can be said of the transportation, storage, and other disposal methods being used. The
study included testing of soil and surface water samples that were collected on or around
March 7, 2020 from relatively undisturbed sites in neighborhoods around the Norlite facility.
The study was led by Dr. David Bond, Associate Director of the Center for the Advancement of
Public Action at Bennington College, and Judith Enck, former EPA Regional Administrator for
EPA Region 2. The testing samples were sent to a NY-certified laboratory that analyzed the
samples for an array of PFAS compounds, including a Total Oxidizable Precursor Assay (“TOP
Assay”) analysis. A TOP Assay analysis can more readily identify PFAS compounds that might
not be identified or measurable in more traditional, standard analyses.

In addition to contaminating the environment outside of the Norlite facility, the

results of the testing show that the contamination resembles other areas of known AFFF
contamination. More specifically, nine PFAS compounds that had some of the highest
measurable results from the testing also are the most prevalent compounds found at other sites
with known AFFF contamination. These results4 are as follows:

Compound Non-TOP- TOP-Assay Non-TOP- TOP-Assay

Assay Water Water Assay Soil Soil
Perfluorobutanesulfonic 44 ppt 47 ppt — —
acid (PFBS)
Perfluoropentanoic acid 17 ppt 24 ppt 0.28 ppb —
(PFPeA) (280,000 ppt)
Perfluorohexanoic acid 12 ppt 13 ppt — —
(PFHxA)
Perfluorobutanoic acid 11 ppt 22 ppt 1.5 ppb 4.8 ppb
(PFBA) (1,500,000 ppt) (4,800,000 ppt)

4
The table only lists results for testing at the locations closest to the Norlite facility, which were
200 meters for water and 250 meters for soil. Only post-oxidation TOP-Assay data is included.
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Perfluoroheptanoic acid 10 ppt 11 ppt — —

(PFHpA)

Perfluorooctanoic acid 5.9 ppt 7.7 ppt 0.45 ppb 0.57 ppb
(PFOA) (450,000 ppt) (570,000 ppt)
Perfluorooctanesulfonic 3.6 ppt 4.5 ppt 1.2 ppb 0.94 ppb
acid (PFOS) (1,200,000 ppt) (940,000 ppt)
Perfluorohexanesulfonic 2.2 ppt — — —
acid (PFHxS)
Perfluorononanoic acid 2 ppt — 0.39 ppb 0.34 ppb
(PFNA) (390,000 ppt) (340,000 ppt)

TOTALS 107.7 ppt 129.2 ppt 3.82 ppb 6.65 ppb

(3,820,000 ppt) (6,650,000 ppt)

Notably, many of these PFAS compounds are sulfonic and butanoic compounds, which, again, is
characteristic of AFFF contamination. Additionally, the TOP Assay analysis yielded evidence of
many unknown PFAS compounds for which detectable measurements have not yet been
developed, which also is common at other sites of known AFFF contamination.

Furthermore, it cannot be legitimately disputed that the contamination that was

proven to exist by the Bennington College study came from the Norlite facility. In addition to
the highest levels being from the samples taken in the closest geographical proximity to the
facility, the levels noticeably decreased as the distance from the facility increased. Moreover,
scientific studies have shown that PFAS compounds can contaminate and travel via air just as
easily as they can contaminate and travel via water. In fact, these compounds can travel in the
air for long distances from an emission source. Even worse, volatile PFAS precursors can be
transported in the atmosphere to remote locations before they degrade into dangerous PFAS
compounds, including PFOS and PFOA. These precursors are especially dangerous given that
they are often overlooked in standard PFAS testing, which can cause a false measurement of
human exposure because these precursors can metabolize into PFAS compounds after they enter
the human body. In other words, performing standard environmental testing likely yields a level
of human exposure that is much lower than the level that actually exists.

With respect to the mediums of human exposure, although drinking water

consumption is the most commonly researched, there are other pathways by which PFAS
compounds can be introduced into the human body once they are released into the environment.
At least one study has suggested that inhalation could account for up to approximately 50% of
human exposure to PFAS compounds, and inhalation is widely recognized as the second most
common exposure route for non-occupational exposures — the first being ingestion of
contaminated food and/or water. PFAS compounds have been detected in both indoor and
outdoor air, as well as in dust. Additionally, PFAS compounds can be transferred to and from
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animate and inanimate objects, which leads to hand-to-mouth and hand-to-food/water exposure.
Of course, PFAS compounds can bioaccumulate in fish if waters are contaminated with these
compounds, which can lead to exposure via contaminated food. Thus, contamination of the air,
soil, and water surrounding the Norlite facility presents a number of pathways of exposure for
the residents living in the communities that are close to that facility.

5. Conclusion.
Given both what is known and what is unknown, the burning of AFFF at the
Norlite facility and the resulting continued presence of PFAS compounds in the communities
surrounding the facility certainly constitutes an imminent and substantial endangerment to the
residents of those communities. First, with respect to what is known, the chemical composition
of PFAS compounds makes them resistant to natural degradation, which further causes them to
bioaccumulate in the human body and ultimately causes several adverse health conditions.
Likewise, PFAS precursors are known to metabolize or degrade into dangerous PFAS
compounds both in the human body and in the environment at large. Furthermore, it is known
that AFFF in general and that the specific AFFF that was sent to the Norlite facility included
PFAS compounds, as well as that these compounds were indeed stored, incinerated, discharged,
and otherwise disposed of at the Norlite facility. Lastly, it is known that the areas surrounding
the Norlite facility are contaminated with PFAS compounds, which increase in both quantity and
variety moving closer to the facility.

It is also known that PFAS compounds can be introduced into the human body
through inhalation of contaminated air, indigestion of contaminated food/water, and hand-to-
mouth contact. With respect to indigestion, this can occur via food and/or water that has been
contaminated elsewhere or through hand-to-food/water contact after contact with contaminated
objects or surfaces. Lastly, as of the 2010 U.S. Census and 2006-2010 American Community
Survey 5-Year Summary, the Norlite Facility is known to be located in a geographical area
where approximately 88,404 people live within a three-mile radius. Out of this population, there
were approximately 17,154 children and adolescents, with approximately 4,880 of them being
under the age of five years old. Approximately 28,904 — or 32.7% — of the residents in this
area were classified as being below the poverty level, and approximately 56.13% of the
households have recorded an income below $50,000.

Finally, turning to what is unknown, whether or not incineration is a safe or

effective manner of disposing of AFFF is undisputedly unknown. In the words of the DEC, there
is a “national knowledge-gap” on this exact issue. Indeed, the testing from around the Norlite
facility proves that incineration is neither safe nor effective, as it leads to offsite contamination.
Equally as important, the “safe” levels, if any, of PFAS for human exposure certainly is not
known, which is evinced by the highly divergent views by both governmental authorities and
scientists who have been and are studying this issue. Indeed, there is mounting scientific
research that the EPA’s levels for PFOA and PFOS are not safe, as the ATSDR and several states
have adopted much lower levels. Also unknown are the characteristics of the thousands of PFAS
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compounds and precursors that have yet to be studied or even identified, nor is it known what
PFAS precursors and/or other toxic particles could result from combustion.

Given all of this, it was beyond irresponsible and reckless for Norlite and Tradebe
to knowingly incinerate and/or dispose of AFFF — a waste that, at the time of the incineration,
was known to contain toxic PFAS compounds and was known to have a long, troubled history of
contaminating innocent communities. This occurred without any proven regulatory protocols in
place to protect against offsite PFAS contamination in the surrounding communities. Moreover,
this behavior was especially egregious because no advance warning was given to the
surrounding communities, thereby effectively depriving them of any choice in bearing the severe
risks being forced upon them. In sum, the incineration, disposal, and the resulting, ongoing
contamination certainly present an imminent and substantial endangerment to the thousands of
innocent residents — including thousands of children — who live in close proximity to the
Norlite facility, many of whom are economically disadvantaged.

D. INTENT TO SUE.
This office intends to file suit in ninety (90) days in the U.S. District Court for the
Northern District of New York and will seek abatement of the imminent and substantial
endangerment through injunctive relief, as well as statutory penalties payable to the
U.S. Treasury and attorneys’ fees and costs. The injunctive relief will include, inter alia,
environmental remediation and restoration measures sufficient to address the continuing
presence of PFAS compounds in the communities around the Norlite facility. While we are
aware that there is a temporary ban on the incineration of AFFF and that Norlite will likely need
to address the environmental concerns arising from the same, these activities are not sufficient to
abate the imminent and substantial endangerment resulting from the continuing presence of
PFAS compounds in the communities around the Norlite facility.

If you are represented by counsel, please immediately direct this letter to her or
his attention. If you or your attorney would like to discuss this matter, please contact me as soon
as possible, as we intend to file suit immediately upon the expiration of the statutory notice
period.

Respectfully,

Phillip A. Oswald
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CC: Mr. Andrew R. Wheeler {via Registered Mail – Return Receipt Requested}
Administrator
United States Environmental Protection Agency
William Jefferson Clinton Building
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460

Mr. Peter D. Lopez {via Electronic Mail & Registered Mail – Return Receipt Requested}
Region 2 Administrator
United States Environmental Protection Agency
290 Broadway
New York, NY 10007-1866
lopez.peter@epa.gov

Basil Seggos {via Electronic Mail & Registered Mail – Return Receipt Requested}
Commissioner
New York State Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1011
Basil.seggos@dec.ny.gov