BENNINGTON — While poised to sign the state’s settlement with Saint-Gobain Performance Plastics to fund water line construction to PFOA-contaminated properties, a Superior Court judge raised questions Thursday about the nature of the agreement and its contents.
Judge William Cohen said during a status conference that he’d like more information from the attorneys on “what it is I am being asked to sign,” including examples of similar agreements from federal court actions involving settlements in other environmental cases.
If a motion promised by Assistant Attorney General Robert Mcdougall can be submitted by Friday, along with information on like agreements signed off on by judges in federal courts, Cohen said he would sign the consent order before him by Monday.
Mcdougall and attorneys representing Saint-Gobain agreed to provide the information.
The consent order before the judge calls for the company the state considers responsible for addressing PFOA (perfluorooctanoic acid) contamination in wells and soil around two former ChemFab Corp. plants to fund $20 million in water line extensions and cover other costs associated with the state’s response to the contamination.
Contractors for the municipal water line extension work have been selected, and the projects involving about half the properties in town with PFOA contamination is scheduled to begin next month. However, the consent order agreement, which was concluded and filed in late July had to first await a 30-day public comment period and now final approval from the judge.
Mcdougall said the state Department of Environmental Conservation received six comments and answered those in writing, but decided not to seek any changes in the settlement in light of those comments.
The agreement, the comments and responses and other information relating to the state’s response to the PFOA contamination can be found online.
Cohen said during the afternoon hearing at Bennington Superior Court Civil Division that he had not seen in 18 years on the bench a similar settlement agreement, which covers not only past expenses for the state that Saint-Gobain agrees to cover but also future contingencies should the company fail to live up to its part of the agreement.
“What is it I am signing?” he asked at one point. “Is it a judgment, an injunction? Is it a court order?”
Mcdougall said the document follows a model established in federal courts that allows a multi-faceted settlement of complex environmental issues and is based on a format the AG’s office has used in other cases, particularly when the government entity approves the agreement and there is no opposition.
The principal role of the court, he and attorneys representing the company said, essentially is to sign off on whether the process seems to be a fair one, the public interest is being served, and there are no outstanding objections being raised.
In that case, Cohen said, he would like to see something from the state that articulates why the ANR believes the agreement is in the public interest and some references or copies of similar court settlements that were approved.
The agreement covers extension of water lines to about 200 properties and involves about half those contaminated with the PFOA the state believes emanated from smoke stacks of the two factories — on Northside Drive in Bennington and Water Street (Route 67A) in North Bennington.
PFOA in the soil was believed to have leached over time into the groundwater and private wells in the contamination zone.
The state and Saint-Gobain are still negotiating over a similar number of contaminated properties east of Route 7A and the rail line, with the company performing tests at the direction of the state to determine whether there are other significant sources of PFOA in the area.
ChemFab formed in Bennington in 1968 and moved to the North Bennington site in 1978. The company was purchased by Saint-Gobain in 2000 and the local operation was moved to New Hampshire in 2002.
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