NORTH BENNINGTON — Attorneys for Saint-Gobain Performance Plastics have asked a federal court in Vermont to throw out a multi-million dollar class-action lawsuit over PFOA contamination because the company is also in litigation with the state.
A memorandum filed last week argues that a complaint brought forward by North Bennington residents should be dismissed or stayed because the company is challenging the state's advisory standard for the man-made chemical.
The residents' complaint accuses Saint-Gobain of negligence in disposing of PFOA, and trespass and battery for contaminating private drinking water supplies with the suspected carcinogen.
It's one of several class-action suits filed in federal court after the chemical, used for decades when making the nonstick coating Teflon, turned up in public and private water supplies in the region.
Across the state line in New York, five class-action lawsuits have been consolidated. The cases were all filed against Saint-Gobain and Honeywell International, the companies that last month signed consent orders holding them responsible for contamination around Hoosick Falls.
The most recent one was filed on behalf of the local Tops Friendly Supermarkets and seeks $2.1 million for a loss of value to the grocery store building on Route 22.
PFOA, or perfluorooctanoic acid, has been linked to kidney and testicular cancers, as well as high blood pressure and cholesterol and thyroid problems. Of the 483 wells around North Bennington tested since February, 249 were found to have PFOA levels above what the state says is safe, or 20 parts per trillion (ppt). The highest amounts of 2,730 and 2,330 ppt were found on Harrington Road and Asa Way, according to results posted on Friday by the Vermont Department of Environmental Conservation. DEC believes the contamination source is the former Saint-Gobain/ChemFab plant in the village.
A complaint filed in May by three law firms on behalf of four North Bennington residents seeks $5 million in damages from Saint-Gobain, as well as a court order for the company to pay to connect affected homes to municipal water, clean up contamination and implement long-term medical studies.
Lawyers for Saint-Gobain last week filed a motion to dismiss or stay the lawsuit proceedings because the company has challenged Vermont's 20 ppt limit for PFOA, which a memorandum states is "the lowest set by any state, federal or even foreign government."
"As a matter of science, Vermont public policy, and administrative procedure, these rules should not stand," the memorandum states.
The memorandum for Saint-Gobain was filed by Downs Rachlin Martin PLLC of Brattleboro and Quinn Emanuel Urquhart & Sullivan LLP of New York City.
The federal Environmental Protection Agency has set a limit of 70 ppt. The Vermont Department of Health issued a health advisory level of 20 ppt in March. The DEC then issued an emergency interim groundwater enforcement standard of 20 ppt. The Agency of Natural Resources has begun proceedings to set a final standard.
Saint-Gobain challenged the standard in state court "on both substantive and procedural grounds," the memorandum states. The company claims that Vermont state agencies didn't provide sufficient notice to identify affected parties, or allow those parties to comment, didn't consider economic impact, and challenges the state's "failure to assert a scientifically supportable basis for the Interim Standard and Emergency Rules."
Attorneys for Saint-Gobain argue that the lawsuit should not proceed because the North Bennington residents rely on the rules that are subject to pending challenges in state court.
In Hoosick Falls, N.Y., five cases have been consolidated under a court order by a federal judge. Plaintiffs have requested the court appoint Weitz & Luxenberg, P.C. and Faraci Lange, LLP as co-lead interim class counsel. A memorandum in support of the motion states that both New York City law firms "have a wealth of experience handling groundwater contamination cases very similar to the instant matter." Plaintiffs claim a loss of property value due to contamination and allege negligence against Saint-Gobain and Honeywell.
Among the plaintiffs is Hoosick Falls Associates, a company that owns the property that contains the local Tops supermarket. A complaint was filed in May by Albany, N.Y. law firm Couch White, LLP.
The property at 21495 New York State Route 22 is three-tenths of a mile away from the manufacturing plant at 14 McCaffrey St., a Class 2 state Superfund site, the complaint states. Saint-Gobain has owned that site since 1999 and that company, along with Honeywell, signed consent orders last month for the site.
The property was listed for sale and its market value in November 2015 was $2.1 million, according to the complaint. Three buyers expressed interest in buying the property, but rescinded their interest after PFOA contamination was discovered.
The complaint details a stigma attached to the property and claims that HFA will not be able to sell it.
Tops is served by a private water system and was one of the many businesses and homes where Saint-Gobain agreed to fund a point-of-entry (POET) water filtration system.
The supermarket has also been the designated bottled water pick-up site for residents in the village and town of Hoosick. Saint-Gobain agreed to fund that effort after the EPA last November issued a no-drink order on the village's municipal system, which serves about 4,500 customers. The company has since paid for a filtration system on the municipal system.
Contact Ed Damon at 802-447-7567, ext. 111.