State response to ChemFab complaints was mixed
In this five-part series, Jim Therrien, who writes for New England Newspapers in Vermont and VTDigger, and VTDigger reporter Mike Polhamus examine the history of the North Bennington plant and the impact of toxic chemical emissions from the Teflon factory on local residents.
NORTH BENNINGTON — When Vermont regulators learned last year that the former ChemFab factory had polluted hundreds of wells in Bennington with perfluorooctanoic acid, or PFOA, the reaction was swift.
Gov. Peter Shumlin assembled a press conference hours after the findings were released, an investigation was launched, and that same day state authorities began delivering bottled drinking water to affected residents.
The response in 2016 was in dramatic contrast to the company-friendly approach state officials took in the preceding decades when the ChemFab factory emitted the toxic chemicals that polluted those wells.
Former regulators and other state officials say they were under no political pressure to look the other way when ChemFab broke the law and violated the permit for the factory.
But documents released last year by the Vermont Department of Environmental Conservation show that political leaders instructed state regulators to give ChemFab special consideration. State officials from the time say they were worried about retaining the company's high-paying jobs.
For decades, Vermont officials asked ChemFab to test smokestack emissions to determine whether the company was emitting toxic chemicals in the manufacture of Teflon-coated fabrics. One of those chemicals was PFOA, used to bond the Teflon, or polytetrafluoroethylene, to fiberglass fabric.
Those tests were never performed.
Instead of requiring ChemFab to meet environmental rules, state officials took a conciliatory approach and repeatedly allowed the company to violate emissions standards without penalty.
In a months-long review of hundreds of pages of documents, VTDigger found that the state first learned about the dangers of PFOA emissions in 1997, but did not test for the chemical until 2016.
Records show the state also did little to address the following environmental issues:
Residents filed hundreds of complaints about a "dirty plastic" odor from the North Bennington plant over a 24-year period.
The company was supposed to catalog every chemical in the smokestack emissions. Results from testing in 1985, which established the baseline monitoring standards for a 15-year period, were badly executed. The tests were "not representative of stack emissions," according to Mike Kawahata, the scientist with Environment One Corporation, the contractor for ChemFab that conducted the tests. State Rep. Marie Condon, told DEC officials that it appeared ChemFab might be "intentionally withholding damaging information about its toxic emissions." The state allowed the flawed results to stand.
In internal memos, the commissioner of the Department of Health and field inspectors for the Vermont Department of Environmental Conservation asked senior officials at the Agency of Natural Resources to test for fluorocarbons, including PFOA. The tests were never conducted.
Regulators recorded dozens of emissions violations from 1984 to 2002, but only one enforcement action was taken during that period.
ChemFab managers misrepresented pollution control standards in other states and pushed Vermont regulators to relax air quality standards based on false claims. For example, the company said New Hampshire allowed competitors and other ChemFab facilities to operate without any pollution control devices on some smokestacks. In response to pressure from ChemFab, Vermont authorities gave the company tax breaks and waived air quality rules.
REGULATION AND ECONOMICS
Vermont regulators say they didn't know enough about the company's industrial processes to head off the eventual contamination of water supplies in North Bennington. Records show that ChemFab kept state officials in the dark about what chemicals were released from smokestacks at the North Bennington plant.
But state regulators and ChemFab executives were aware that fluorocarbons caused the "Teflon flu" some workers experienced in the 1970s. State regulators at the time required ChemFab to begin venting the exhaust into a neighborhood of North Bennington through smokestacks.
In 1986, Bill Bress, the state toxicologist, said that six specific fluorocarbons in the factory exhaust would need to be analyzed and quantified in order to determine whether ChemFab emissions were safe. The tests were never conducted.
Charles Tilgner III, ChemFab's vice president of manufacturing, responded in a memo to the state that information about the chemical emissions would needlessly scare the neighbors.
"I believe you said that the state has not developed any maximum emission rates for any of the 25 compounds that you have asked us to quantitate," Tilgner wrote. "Since the presentation of results without any accepted standards to measure them against will only raise the anxieties of our neighbors, I am sure you had something in mind which we just never got to in our discussion."
Eleven years later, then-director of Vermont's air-pollution division of the DEC, Brian J. Fitzgerald, wrote to his New York counterparts about pollution controls required at Teflon coating factories.
Tom Gentile, of New York's Bureau of Stationary Sources, said his state was looking to place stricter pollution controls on a ChemFab competitor in Hoosick Falls called Taconic Plastics, which was believed to be emitting PFOA and toxic PTFE breakdown products.
In his May, 1997 letter to Vermont's DEC, Gentile included a memo from Arline Sumner, an environmental chemist, who said the Taconic Plastics factory was emitting PFOA and toxic fumes from the Teflon compound PTFE.
"The American Council of Governmental Hygienists states that `air concentrations [of these compounds] should be controlled as low as possible,'" Sumner wrote. She urged New York regulators to take steps to prevent the fumes from escaping the factory. "Exposure must be avoided," she wrote.
"Toxic effects in animals from PTFE fumes are found at low inhaled concentrations," Sumner wrote. "You should focus on working with the facility to reduce all point and fugitive emissions of these products in an attempt to resolve the neighborhood complaints."
"Our review indicates that the resident complaints associated with emissions from this facility may be related to the thermal decomposition products of PTFE," Sumner wrote.
But instead of heeding that warning from New York regulators, Vermont officials exempted ChemFab from air quality rules and allowed the company to pull pollution control devices, or abaters, off smokestacks in October that year.
"To require the continued operation of catalytic abaters in Vermont would put ChemFab at a significant competitive disadvantage," the variance board wrote.
The board said the emissions controls were too costly for the company and blamed ANR staffers for failing to oppose ChemFab's claims.
Maps produced this year by a Saint-Gobain contractor show that the removal of smokestack controls coincided with the highest rate of PFOA pollution in Bennington.
The variance board was hardly alone in looking out for ChemFab's interests.
State commerce agency officials also asked environmental regulators to look the other way when questions were raised about the adequacy of emission controls at the plant.
Frank Cioffi, then-commissioner of the Vermont Department of Economic Development, promised ChemFab executives that state regulators would back off from state air-quality requirements, according to records from DEC.
DEC officials said in January 1997 memo that Cioffi "seems to have made promises to ChemFab that they would not have to run the [pollution-control devices]," and he "seems to have a knack for making promises that the Department can't keep."
Cioffi said in an interview in July that disagreements between the commerce agency and environmental regulators were common.
"There's a healthy tension between the agencies, which is not a bad thing," Cioffi said. "But the bottom line is, ANR called the shots on permitting."
"Every job was important, especially in places like Bennington," where there weren't many good jobs to begin with, he said.
But Cioffi denies making promises to ChemFab. "I had no authority to make any promises," he said.
"Our job was to communicate what the challenges were, what the problems were, and then turn it over to permitting [at the DEC]," Cioffi said. "We didn't operate like that on the [Gov. Howard] Dean team. That wouldn't have happened."
But records conflict with Cioffi's description of events. At the time, Barbara Ripley, then secretary of the Agency of Natural Resources, had choice words for Cioffi's boss, commerce secretary William Shouldice. In a July 1997 memo, Ripley accused Shouldice of attempting an end-run around her agency to get Dean to intervene and relax air-quality standards on ChemFab's behalf without her knowledge.
"I received your note and the memo to the governor regarding ChemFab," Ripley wrote. "First, I am profoundly disappointed that you sent that memo to the governor without calling or sending me a copy. Did you think that the governor would just tell me to change the standard? I believe we would be of better service to the governor if we went together to him with a solution rather than having you ask him to decide what to do."
Dean did not relax air-quality regulations for ChemFab, but he offered the company special tax incentives as an inducement to continue operating in Vermont.
Jim Stead, a former business recruiter for the state's economic development agency, said Dean didn't go far enough to keep ChemFab in the state.
"They really got no consideration at all," Stead said. "The governor could have, after the meeting, said to the head of ANR: `Fix it,' but of course, being Vermont, we wouldn't consider that."
Cioffi describes ChemFab as a bit player in comparison with employers like IBM, Husky Injection Molding and other large businesses in the state.
But Stead, who worked for Cioffi, said state officials felt particularly protective of the high-paying jobs at ChemFab.
"They were pretty heavy hitters," Stead said, of ChemFab. "Eighty jobs in Bennington, at $16 to $18 an hour quite a while ago, was a big deal, I thought."
In a recent interview, former Gov. Howard Dean said he did not recall groundwater pollution being raised as an issue, only questions about air emissions. He said state officials were keen to avoid another groundwater pollution scandal after a drycleaning company in Williamstown was found to have contaminated wells in the 1980s.
"I can guarantee you if ANR said they were polluting the groundwater, they wouldn't have gotten permission to do anything," Dean said.
In regulating air emissions, Dean said there was a constant tension between environmental regulators and economic development officials, who often sided with the company's pleas for less regulation. The balance, he said, was to find a way to protect the environment at the least possible cost, especially considering the company's economic contribution.
Dean reiterated several times during the interview that Bennington County had few large employers and that ChemFab employed 80 to 90 people.
"The Agency of Natural Resources decided certain behaviors were OK and compromised and the company stayed, along with the jobs," Dean said. "I don't feel like ANR gave up and gave them the right to pollute. When we have discussions like this, it's not how much is OK, it's are there any ways to get to that goal and to what ANR wants without more expense."
The former governor, who served from 1991 to 2003 and made a bid for president in 2004, recalled meeting with company officials more than a dozen times about air-quality regulatory issues. He also discussed the issues with the environmental agencies.
"That's what government does," Dean said. "You listen to both sides and make a decision."
Dean said it is now clear the company didn't comply with state permits requirements. He said the company was just one of many that was always pushing back, looking for less regulation.
"All I can tell you is, the result was a bad result, and the company didn't do what they should have done in the permits," Dean said.
The state's regulatory oversight of ChemFab was lax even on the rare occasion when penalties were sought for an overt violation of the law.
In 1998, ChemFab approached regulators with a request for a new permit to fulfill a Saudi Arabian contract. The company demanded that the state process a permit application in one month. The process normally can take up to a year.
When state officials said they couldn't process a permit application that quickly, ChemFab expanded operations anyway and erected two new smokestacks without permits.
DEC officials rushed to complete a permit retroactively and ultimately fined the company $2,500.
It was only the second time in 20 years the state had taken a formal enforcement action against ChemFab. The first was in 1974 for poisoning workers with toxic PTFE degradation fumes.
Regulators said the small fine was reasonable because the factory had no previous permit violations. In fact, state officials had cited the company dozens of times for violating permit requirements.
In a further justification for the minor penalty, state inspectors claimed that ChemFab had no financial incentive to build the smokestacks without a permit.
"There was no evidence indicating that Chemfab has or will gain an economic benefit due to this violation, so the penalty amount represents solely the `gravity' portion of the penalty calculation," DEC air division chief Chris Jones wrote to Sal Spinosa, an attorney with the state's enforcement division.
But records show that ChemFab officials had told the state that the new smokestacks and machinery had been installed specifically to fulfill a big contract.
In a letter to Dean, John Verbicky, Chemfab's president and CEO, praised Vermont's air quality division staff. "Their actions will directly benefit our customers, our employees, and our shareholders," Verbicky wrote. "We are most grateful, and I trust that you and your team will take pride in your efforts on our behalf."
The governor, in turn, thanked the DEC regulators who sped ChemFab's retroactive permit through the approval process.
"Please pass on my thanks and appreciation to [various air-quality regulators] for the professional and timely work they did to resolve the state's dispute and permitting issue with ChemFab," Dean wrote on Dec. 7, 1998, to John Kassel, Secretary of the Agency of Natural Resources.
New York took a very different approach, only a year later. When Taconic Plastics committed almost the exact same offense, and built two new smokestacks without a permit, New York officials fined the company $400,000.
The state's lukewarm response to violations in the late 1990s typified a decades-long pattern in which Vermont regulators looked the other way while ChemFab routinely broke air quality regulations and the terms of its own permit.
ChemFab was, for example, never penalized for failing to comply with odor restrictions.
For decades, stench from the ChemFab factory permeated neighborhoods in North Bennington and generated hundreds of citizen complaints, but the state did not force the company to curb toxic smells that violated the factory's operating permit.
Odor violations are perhaps the most difficult to successfully enforce, according to Spinosa and others. But as early as 1985, regulators acknowledged in internal memos that the company was violating state law. Officials, however, chose not to levy fines or to pursue any other enforcement actions against the company.
Regulators said that ChemFab had voluntarily taken steps to comply with odor restrictions.
Ken Rumelt, a professor at the Vermont Law School, said he couldn't say whether the state did enough to control emissions, but he said in general "the regulation of toxic substances in this country has been very lax over the years. The Toxics Control Act was pretty much a joke."
It's unknown how much PFOA and other fluorinated chemicals ChemFab released into residential neighborhoods.
Representatives from Saint-Gobain Performance Plastics declined to answer questions about ChemFab air emissions.
NOT `OUT TO SHUT ANYBODY DOWN'
Residents in North Bennington complained that the factory smelled like burnt hair or burnt plastic. Inspectors called it "the ChemFab odor."
Under Vermont air emissions rules established in 1978, factories were required to incinerate chemicals at 1,600 degrees Fahrenheit to eliminate noxious odors.
But the state allowed ChemFab to use much less expensive catalytic abaters, which are similar to the catalytic converters found on cars, that operate at 600 degrees Fahrenheit.
In the early 1980s, regulators reasoned that once they knew which chemical compounds were responsible for the ChemFab smell, they could require the company to tailor emission controls to specific chemicals.
Brian J. Fitzgerald, a former chief for the Air Quality Division of DEC, said this approach made sense because the state couldn't force ChemFab to control odors without knowing what chemicals were causing the smell.
But ChemFab executives refused to conduct a comprehensive test of chemicals released by the plant and insisted that Vermont regulators would never be able to identify what compounds caused the stench.
While tests confirmed there were at least 400 separate chemicals present in the exhaust, chemists positively identified fewer than 200.
ChemFab executives for years reassured Bennington residents and state officials that none of the known toxins in the factory emissions were released in concentrations that could harm people.
Regulators now know that PFOA was one of those chemicals, as were highly-toxic fumes from PTFE released during the high-heat manufacturing process. While the PFOA and other chemicals released from the smokestacks were not immediately toxic to North Bennington residents, toxins accumulated in the soils near the plant and eventually contaminated groundwater supplies.
Air quality division staff were reluctant to put the screws to ChemFab because their role is to help companies comply with the law — not put them out of business, Fitzgerald said.
"We weren't out to shut anybody down," Fitzgerald said in a recent interview. "In Vermont, we try to help companies to be able to comply and reduce their impact on the environment," he said. "Because of the Vermont culture, we weren't there putting locks on the doors" in response to odor complaints."
Fitzgerald's predecessor at the Air Quality Division, Harold Garabedian, concurred.
"Everybody wants to do the right thing, but everybody wants not to spend a ton of money, and they want to keep jobs," Garabedian said in an interview. "It's not a new phenomenon."
In practice, this meant that state regulators required only those forms of pollution control that Chemfab was willing to pay for.
Chemfab wasn't willing to pay much, evidence suggests.
Notes from a July 1986 meeting between Garabedian, Charles Tilgner III, an executive with the company, and Rep. Mary Condon show that ChemFab was reluctant to pay for testing. That same year, 30 Bennington residents had petitioned the state for an enforcement against ChemFab for chemical odors and potential health risks associated with the smell.
"Mr. Tilgner seemed satisfied with the [test results]," the notes read. "He thinks it shows that there are numerous (100s) of chemicals emitted and that none are emitted in significant amounts — not enough to be toxic. Also — report shows it will be difficult, if not impossible, to determine what's causing the odors.
"Chuck [Tilgner] wants to know how much Chem Fab [sic] will have to spend — is there `an end'? Harold [Garabedian] estimates [approximately] $20,000 more for testing alone," the notes read. "If it costs too much, Chuck says they may have to move the plant to another state.
"On odors — he's concerned that there may be no way to determine cause and controls (scrubbing) will be too expensive. No corporate decision has been made yet about spending more money to control odors. Depends on how much."
Garabedian said that companies frequently make threats to move to another state over costs related to pollution control.
"We didn't care," Garabedian said, of Chemfab's and other companies' threats to leave the state. "It was their choice. That wasn't a motivator [for regulators].
"A lot of people made these comments, but so what? We had a set of standards, and we were trying to enforce them," he said.
But records show that Garabedian and other regulators were pressured by superiors and other agencies to keep the company's threats in mind.
Then-Lt. Gov. Howard Dean told Garabedian in 1990 to find out what needed to be done to ensure that ChemFab didn't leave the state.
"I have been chatting with [Agency of Commerce and Commercial Development Secretary] Patricia Moulton about the difficulties of ChemFab in North Bennington," Dean wrote to Garabedian in May 1990. "The manager down there is very impressed with your handling of the situation and discussions with him.
"I wonder if I could talk with you to get your views on their problems and what the state can do to encourage the addition of more workers in that particular business," Dean wrote. "As you are aware, they have grown and plan to continue that growth either in or out of Vermont."
Barbara Ripley, then-secretary of the Agency of Natural Resources, in a 1995 memo to then-DEC commissioner Bill Brierley, Fitzgerald's boss, that ChemFab executives had been "very complimentary of Air Division folks; especially Brian Fitzgerald and Marc Bannon."
Ripley then lays out her concerns.
"We are requiring them to buy an `abater' for $250,000 that is fueled by large amounts of gas which emits lots of other stuff," Ripley wrote. "They question the logic. We need to respond to this issue quickly as they may expand out-of-state to avoid the problem."
The catalytic abaters were the best technology available, when they were first installed in the 1970s, Garabedian says.
But like automotive catalytic converters, the catalysts on ChemFab's smoke stacks were designed to break down hydrocarbons (such as gasoline, benzene, and propane) — not fluorocarbons (such as PTFE and PFOA).
As a result, the abaters didn't work as regulators had hoped. ChemFab executives claimed that the abaters made the exhaust less visible, worsened the smell and did not effectively destroy chemical compounds from the factory.
By knowingly using a technology that conceals emissions without reducing them, executives were violating state air-quality rule 5-261, according to a memo from the air quality division.
ChemFab's permit required the abaters to work effectively: They were to destroy flue-gas chemicals with an efficiency of 93 percent. But in a permit application from 1995, ChemFab claimed to destroy only 71 percent of flue gas chemicals. Testing by the state in the late 1990s found that the abaters actually destroyed about 50 percent of the compounds in the exhaust.
There's another wrinkle to the catalytic abater problem: Some of ChemFab's permits say that the abaters were supposed to destroy 93 percent of volatile organic compounds. But neither PFOA nor PTFE are volatile organic compounds.
ChemFab used one compound that contained appreciable amounts of VOCs, executives said. That was a silicon emulsion, used in one of ChemFab's industrial processes.
The emulsion rendered the abaters essentially useless — within days or even hours — by coating the platinum honeycomb matrix in the abaters that is supposed to catalyze reactions. Once coated with silica, flue gases couldn't come in contact with the platinum catalyst, meaning that the abaters couldn't work.
The abaters were also neither maintained nor replaced often enough.
Regulators knew as early as the mid-1980s that the abaters were clogged with silica emulsion. The state asked Chemfab to test the factory's flue gas for silica in 1985, but regulators were rebuffed by company executives who promised to maintain the devices.
According to a 1995 DEC memo, regulators assumed Chemfab was replacing all the platinum catalyst units in the factory's abaters every two years. A state analysis from the late 1990s found that abaters at the factory had been used for so many years that they crumbled when lab technicians tried to perform tests on the integrity of the equipment.
The problem of silica and catalyst efficiency is complicated, but the point to be made here is that state regulatory efforts focused on a class of chemicals (VOCs) that were found in only one compound that was used in only one of more than a dozen industrial processes going on at the plant.
There is now a dispute over whether emission control efforts for volatile organic compounds inadvertently abated fluorocarbon toxins (including PFOA, and the even more poisonous PTFE degradation products) that ChemFab emitted.
While the abaters were designed to control volatile organic compounds, ChemFab's parent company now claims that the abaters did in fact capture fluorocarbons, at least to an extent.
A report submitted in June 2017 to the state by ChemFab's parent company, Saint-Gobain Performance Plastics, said the company now believes the abaters destroyed about 46 percent of the PFOA in the Bennington factory's exhaust.
DEC officials who responded to that report this year said they now believe the abaters destroyed less than 1 percent of the PFOA from ChemFab's smokestacks.
A `MISSED OPPORTUNITY'
Despite numerous concessions from Vermont officials at every level of government, in 2002, ChemFab closed its Bennington factory and moved its headquarters to Merrimack, New Hampshire.
New Hampshire, company officials said, wouldn't burden Chemfab's operations with the air-quality regulations that Vermont had imposed.
While the company had some open stacks without abaters at the Merrimack plant, at least one smokestack was required to operate with an incinerator that burned chemical emissions at 1,400 degrees Fahrenheit. New York state required ChemFab to install scrubbers on smokestacks. PFOA contamination has been found near ChemFab facilities in both states.
Today, 15 years after ChemFab's departure, at least one economic development official clings to the idea that ChemFab was unfairly treated — despite the documented pollution, with hundreds of residents now depending on bottled water and anxious about their past consumption from wells.
"That was a missed opportunity," said Stead, the one-time Bennington economic development promoter, said in an interview this summer. "They were just asking for a little relief from this stack-gas emission limitation, but they got no consideration from the state at all.
"I'm a fan of ANR, but you can have some 25-year-old chemical-engineering grad down there, who for some reason decides to tighten up the law, so he does, and I think it gets reviewed by the head of ANR, but that's it — there's no real requirement to justify this, it's just somebody's opinion," Stead said. "I am a bit of a treehugger, and I thought this was overkill."
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