Attorneys for Bennington residents confident PFOA suit will move forward

BENNINGTON — Plaintiff attorneys are poised to advance a lawsuit filed in May on behalf of Bennington residents over PFOA contamination in water supplies — provided Saint-Gobain Performance Plastics’ bid to have the suit dismissed is denied.

“We are confident the judge will deny this motion,” said David Silver, one of several attorneys from four legal firms representing the more than 137 households seeking to pursue a class-action suit against Saint-Gobain.

A hearing on that motion was held on Oct. 11 before Judge Geoffrey Crawford in U.S. District Court in Rutland, but there is no announced time frame for a decision.

The suit seeks damages for PFOA (perfluorooctanoic acid) contamination discovered in the spring in groundwater, wells and soils and linked by Vermont environmental officials to the former Chemfab factory in North Bennington.

Saint-Gobain attorneys have filed a motion to dismiss the suit, arguing in part that the case should await resolution of the firm’s challenge in state court of Vermont’s 20 parts per trillion minimum standard for PFOA in drinking water, which was set after the contamination was discovered in wells.

The company argues that the state’s minimum level was improperly or unfairly set and also is the lowest among all U.S. states and other governments — as well as well below the level set by the federal Environmental Protection Agency, at 70 parts per trillion.

David Silver, of Barr Sternberg Moss Silver & Munson, said this week that it’s clear the state has the authority to set a minimum exposure level for contaminants, and that “we are arguing [in the suit] that there is no safe level” for exposure. The state’s authority in the matter of safe levels in drinking water also has no bearing on the suit, the plaintiff attorneys argue.

“We think this is a typical stall tactic,” said another plaintiff attorney, Patrick Bernal, an attorney with the Manchester firm of Woolmington, Campbell, Bernal & Bent.

The international company is seeking dismissal of the suit without prejudice, meaning it could be refiled later, or to have a stay placed on the suit until Saint-Gobain’s challenge of the state’s PFOA standard for drinking water is resolved, Bernal said.

That challenge is proceeding in Vermont Environmental Court, he said, but any decision at that level could be appealed further to the state Supreme Court — all of which could take two to three years or more.

“We would have a hard time explaining to our clients why their claims should be delayed,” Bernal said, adding that some people are approaching retirement age and had hoped to sell their property.

“Saint-Gobain wants them to wait; we don’t think that’s right,” the attorney said.

Saint-Gomain attorneys also have yet to file an answer to the suit allegations the plaintiffs filed in May, Bernal said.

Attorneys representing the company could not be reached.

Asked to comment, Dina Pokedoff, director of Branding and Communication at Saint-Gobain, responded Friday in a release: “While there are no new developments on the status of the suit, Saint-Gobain Performance Plastics has and will continue to work as rapidly as possible and in ongoing good faith with local and state officials so that the residents of Bennington and North Bennington can continue to access clean drinking water.”

Silver and Bernal said medical injuries or conditions that may be linked to PFOA are not part of the current lawsuit. “But we are keeping a strong focus on people with serious medical claims,” which are expected to be filed separately later on an individual basis, Bernal said.

Some of the people in the affected areas who had their blood tested “had high levels [of PFOA],” he said, “some much higher than the national average.”

Silver said the focus now is on damages over an alleged decline in property values; trespass, nuisance and assault issues in the form of the chemical entering the soil and groundwater of plaintiff properties and entering their bodies through exposure to water or other methods, and emotional stress.

Also cited is the expense of any required medical testing and monitoring, and the costs of filtering of water supplies and other interim measures to address the problems created, plus the cost of permanently addressing the contamination through extension of town water lines to affected properties.

Among the class-action suit plaintiffs are households with properties that do not have a water supply issue but may have experienced property value diminution or other damages because of the contamination.

Silver said 28 of those households involved in the suit are on town water, five households had wells where no PFOA was detected in testing; 13 had wells that tested below the state’s 20 ppt level, and 75 had wells testing above the 20 ppt level.

There were 137 seeking to be parties to the suit as of this week, he said, and the attorneys involved are still receiving calls from residents of the area seeking information.

In addition to the cost of extending town water lines to the affected properties, estimated at from $32 million to $40 million, the state Department of Environmental Conservation also is seeking funding from Saint-Gobain to cover that expense and for interim costs, such as for ongoing water filtering.

DEC officials have been involved in negotiations with the company over those and other issues.

According to Danika Frisbie, a spokeswoman for the state Agency of Natural Resources, “At this time, we have no new information to report related to Saint-Gobain commitments. The state is currently in comprehensive settlement discussions with Saint-Gobain regarding many issues related to the investigation and cleanup of releases of PFOA in North Bennington and Bennington.”

Officials with the DEC’s Waste Management and Prevention Division said in late September that after taking more than 541 samples of private wells, the state was closing in on delineating the extent of the PFOA contamination. More than the 20 ppt level of PFOA was discovered in 266 of the wells.

Vermont Department of Health officials also have overseen blood draw clinics to determine PFOA levels in those who may have been exposed locally to the chemical, and two more sessions are scheduled in November. Hundreds of residents have thus far been tested and the levels detected covered a wide range.

Although trace levels of PFOA, likely from exposure to consumer products manufactured with the chemical, can be found in most Americans, the geometric mean, or an average level for the Bennington/North Bennington group was more than four times the national average of 2.1 micrograms per liter, according to a state Department of Health release issued in July.

The levels detected in the blood of 477 local adults and children ranged from 0.3 to 1125.6 micrograms per liter, the department reported.

Attorney Emily Joselson, of Langrock Sperry & Wool, said her firm “was very excited to get involved in this lawsuit. Many people have been adversely affected by this.”

The Middlebury firm has been involved in environmental law since the 1980s, she said, when it represented clients battling International Paper over discharges into Lake Champlain from the firm’s Ticonderoga, N.Y., paper processing facilities.

The law firm also participated in suits against GE over pollution near its plants in Pittsfield, Mass., and Fort Edward, N.Y., she said.

The area in Bennington and North Bennington where the state has found PFOA contamination is “pretty widespread” Joselson said, and the state is still testing well sites for PFOA levels.

“Potentially, the population in the area is over 2,000 people,” she said, with a wide range of impacts found, from slight to severe.

Nationwide, Joselson said, the situation involving PFOA contamination and the medical and economic consequences is unfolding as “a tragedy.”

The first successful lawsuits involving PFOA were fought in the West Virginia and Ohio area. A lengthy investigation of several years resulted in documents concerning manufacturing operations coming to light, and the EPA at the time began to establish regulations for the chemical.

Today, hundreds of suits have been filed against manufacturers of the product, and against companies that used it in their industrial operations.

The plaintiffs’ legal team also includes Douglas Ruley, the former director of the Environmental and Natural Resources Law Clinic at Vermont Law School, and James Whitlock and Gary Davis, all of Davis & Whitlock, of Asheville, N.C.; Robert Woolington, of Woolmington, Campbell, Bernal & Bent; James Swift, of Langrock Sperry & Wool, and Timothy Andrews, of Barr, Sternberg, Moss, Lawrence & Silver.

Saint-Gobain’s legal team includes attorneys from Quinn Emanuel Urquhart & Sullivan, of New York City, and from Downs Rachlin Martin, of Brattleboro.

The state responded in the spring to the detection of PFOA suspected to emanate from the former Chemfab plant operations by ordering testing of wells and soil. That testing followed discovery of PFOA contamination in Hoosick Falls, and Petersburgh, N.Y., suspected of resulting from industrial operations in those communities.

Chemfab operated in North Bennington from 1970 through 2000, when it was purchased by Saint-Gobain. The local facility, which applied coatings to fiberglass fabrics, closed in 2002 and operations were moved by Saint-Gobain to New Hampshire.

PFOA was used nationally in the manufacture of Teflon, and used in products like nonstick cookware, stain-resistant carpets and fabrics, water repellent clothing, paper and cardboard food packaging. The chemical has been detected in a number of states in apparent connection to manufacturing facilities.

Medical studies have found a suspected link to testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases or conditions.

Thousands of suits against manufacturers of products involving PFOA have been filed, including against 3M, which was the primary producer of PFOA, and DuPont.

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