MONTPELIER — Vermont has taken legal action to protect the state's drinking water and natural resources by filing two lawsuits against companies over the manufacture and distribution of PFAS chemicals and PFAS-containing products in Vermont, Attorney General T.J. Donovan announced Thursday.
Lawsuits filed by the office in Chittenden Superior Court Civil Division name the 3M Co. and E.I. du Pont de Nemours and Co. (DuPont) and related DuPont companies as major chemical firms that manufactured and distributed PFAS (per- and polyfluoroalkyl substances) chemicals and related products.
The allegations include claims that the defendants are responsible for damage to Vermont's natural resources; altering the quality of Vermont's groundwater; manufacturing and supplying defective products, and failing to warn of their hazards; creating a public nuisance; and trespass upon the state's natural resources and property. In addition, DuPont and its related companies are charged with violating the Voidable Transactions Act.
The state is seeking damages and other remedies to recover for the harm caused to Vermont's environment by PFAS chemicals.
PFOA (perfluorooctanoic acid), a chemical among the PFAS family of industrial substances, was cited in the contamination of hundreds of wells and soil around two former ChemFab Corp. factories in Bennington.
The business coated fiberglass and other fabrics here from the late 1960s through 2002 with liquid Teflon and dried the products at high temperatures, producing factory stack emissions the state believes spread the pollution in a wide swath around the two sites. PFOA was used in the manufacture of Teflon.
The state considers Saint-Gobain Performance Plastics, which acquired ChemFab in 2000 and closed the Bennington operations in 2002, the responsible party in the local contamination. And the state has worked out two major consent agreements under which the company will pay more than $40 million to provide new water lines to the affected properties and cover other associated costs.
Going to the source
But the new action by the attorney general is aimed at the original sources of the human-made chemicals. They had been widely used since the early 1950s but only emerged publicly after 2000 as a water-soluble, long-lasting toxic chemical threat to groundwater and surface drinking water supplies at numerous sites around the nation.
In Bennington, the pollution in groundwater was only discovered through well testing in 2016, after similar contamination was found earlier in nearby Hoosick Falls, New York.
PFOA has been associated through studies with certain cancers and other diseases and health conditions, and the level of its presence is a person's blood typically goes down slowly, over a number of years.
"This is about making Vermont whole, by making the responsible parties pay to remove their toxic chemicals from Vermont's groundwater and other resources," Donovan said. "These lawsuits are against the companies that invented, made, and sold PFAS chemicals and related products. For decades, they knew these chemicals were harmful and gave no notice to the public. We're taking this action to protect Vermonters and our environment by holding these companies responsible for the environmental harms they caused."
The two lawsuits were filed in Chittenden Superior Court Civil Division in Burlington.
The suits seek damages for statewide harm to Vermont's drinking water and natural resources, including groundwater, surface waters, and wildlife.
DuPont and 3M are the primary manufacturers of PFAS chemicals, which include PFOS, PFNA, PFHxS, PFHpA and PFOA. One of the lawsuits focuses on harms caused by PFAS-containing AFFF, a firefighting foam.
The harmful health effects of PFAS chemicals include links to kidney and testicular cancer, ulcerative colitis, and adverse effects on fetal development during pregnancy, the liver, the immune system, the thyroid, and cholesterol levels.
3M and DuPont and its related companies are named as defendants in both suits. In addition, Chemguard, Inc., Tyco Fire Products, L.P., National Foam, Inc., Buckeye Fire Equipment Company, and Kidde-Fenwal, Inc. are named as co-defendants in the AFFF firefighting foam action.
Support from delegation
On behalf of the Bennington County legislative delegation, Sens. Dick Sears and Brian Campion issued a statement in support of the suits.
"We applaud the filing of these lawsuits by the state. The creators of these chemicals have caused tremendous destruction to the environment worldwide and must be held accountable for what they have done," they stated. "PFAS chemicals persist indefinitely in the environment; they are known toxicants and associated with multiple types of cancers."
The lawmakers added, "The residents of Bennington County have experienced first-hand the devastating impacts of such contamination. We've watched what happens when PFOA harms Vermonters' health and property, and we would not wish any community to experience what our community has experienced. This next phase, which the attorney general has started, gives us hope that those who have created this nightmare will be made to be answerable."
The Vermont Agency of Natural Resources and the Vermont Department of Environmental Conservation have provided technical and legal support to the Attorney General's Office in all aspects of bringing the lawsuits.
"I appreciate all of the work the Agency of Natural Resources has put into this effort in cooperation with the Attorney General's Office," said Gov. Phil Scott. "As we begin to implement Act 21 [requiring widespread testing of ground and surface water in Vermont for PFAS], we expect to find concentrations of PFAS requiring additional response work."
The governor added, "I believe the manufacturers of these chemicals — who continued to profit from their sale long after knowing the potential harm — should be held financially responsible for their negative impact on Vermonters."
Environmental protection organizations also issued statements Thursday on the filing of the lawsuits.
"These companies have knowingly poisoned our water for decades," said Jen Duggan, director of Conservation Law Foundation of Vermont. "They have no right to pollute our drinking water and our bodies. Attorney General Donovan is clearly holding PFAS manufacturers responsible for putting toxic forever chemicals into our water and harming Vermonters while reaping billions in profits."
"This is a significant step forward in addressing the PFAS crisis in Vermont," said Shaina Kasper, Vermont and New Hampshire state director of Toxics Action Center. "Polluters must be held accountable for the damages they cause. As the state moves forward with testing communities' drinking water, Vermont's cities, town, neighborhoods, and small water districts cannot be handed the bill. We need to know that those responsible for the contamination in the first place are those who will pay for the filtration and clean up."
"Vermont must do everything it can to make sure polluters, and not victims of toxic pollution or taxpayers, pay for the damage resulting from the chemicals they use and profit from," said Jon Groveman, Policy and Water Program Director at the Vermont Natural Resources Council. "VNRC applauds Attorney General Donovan for holding these manufacturers accountable for the harm that their toxic chemicals cause."
"VCV commends the Attorney General's work to hold these corporations responsible for the mess they made," said Lauren Hierl, executive director of Vermont Conservation Voters. "AG Donovan's actions recognize the fact that companies must be held accountable for profiting off these chemicals for decades while knowing the risks they posed."
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien