BENNINGTON —Residents suing Saint-Gobain Performance Plastics over PFOA contamination around former ChemFab Corp. plants here will be allowed to seek the costs of medical monitoring for illnesses associated with the industrial chemical.
Judge Geoffrey Crawford ruled Friday in U.S. District Court that the plaintiffs in a class-action suit against the multi-national company can seek under Vermont law continued health monitoring. That was one of the questions of law Crawford had asked attorneys for both parties to address.
In a 37-page decision, Crawford said in part: "The court has rejected [Saint-Gobain's] legal argument that medical monitoring is unavailable [under Vermont law] to asymptomatic individuals."
He later concluded, "The court will permit plaintiffs to seek a medical monitoring remedy at trial."
The judge has certified as a class actionthe suit by eight named defendants who lived in areas of Bennington where PFOA (perfluorooctanoic acid) contaminated soils, groundwater and wells.
The suit was filed in May 2016, shortly after elevated levels of PFOA were discovered in wells around the former ChemFab factory on Water Street.
Saint-Gobain has filed an appeal of the class-action decision to the Second Circuit U.S. Court of Appeals, where it would first have to be accepted for review.
The judge's ruling means the entire class of residents affected by the contamination have an opportunity to press their claims for damages in one suit.
The company, which originated in a Northside Drive building in 1968 and moved to a new facility on Water Street a decade later, was acquired by Saint-Gobain in 2000. The plant's fabric coating operations involving Teflon and PFOA were moved to Merrimack, N.H., two years later.
This is terrific news," Sen. Dick Sears, D-Bennington, said, "and a good step forward for Vermonters exposed to toxic chemicals."
Sears and Sen. Brian Campion, D-Bennington, said Monday in a media release: "The new federal court decision in the PFOA Bennington case has established that medical monitoring recovery is now a real policy in Vermont. That is a victory for Bennington people and all Vermonters."
The lawmakers added, "The chemical company may appeal the decision and drag it out for years but they lost. For all practical purposes, the policy set by Judge Crawford and S.37 [proposed medical monitoring legislation] are the same, except the bill has exemptions for farmers and small businesses."
The bill they spearheaded passed the Legislature last session but was vetoed by Gov. Phil Scott, who expressed concerns about negative effects on Vermont businesses and those considering a move to the state.
The Senate had passed S.37 in the spring with a margin one vote short of the two-thirds required for an override, while the House passed it with exactly the number required to override.
Scott also had vetoed a similar bill in 2018, citing concerns expressed by the business community.
"The court decision is a game changer for S.37," Sears and Campion stated Monday. "The political question is no longer whether this will be policy in Vermont. It is. The question for our legislative colleagues and the administration is now whether we want the clarity of a statutory law, with the exemptions."
They added, "We believe now more than ever it's time to codify this important right for victims hurt by dangerous chemical pollution by passing S.37 over the governor's objections."
Another favorable ruling
"We continue to be gratified by the judge's rulings in this case," said Emily J. Joselson, of Langrock Sperry & Wool, of Middlebury, one of several attorneys from four firms representing the Bennington residents. "We believe this is good for the people of Bennington, and for the people of Vermont."
Joselson said Crawford's decision was "very well researched, well written and very thoughtful. This is a huge victory for the plaintiffs in Bennington."
She said the medical monitoring claims will be pursued by a subgroup within the overall class of affected residents living within the state-identified contamination zone. They would be those would drank water from contaminated wells and have a blood level above the national average for the nearly ubiquitous chemical, which was used for decades in commercial and industrial products such as Teflon and specialized tapes and waterproofing substances.
Other plaintiffs in the class, such as those with an uncontaminated municipal water source, could seek damages related to negative effects on their property values, costs associated with the loss of a private well, as well as on claims related to trespass and nuisance factors related to the pollution — largely spread through factory emissions, state officials concluded.
Reached Monday, Dina Pokedoff, director of Branding and Communications for Saint-Gobain North America, said, "We are aware of this ruling and are reviewing and evaluating appropriate next steps."
James Sullivan, of Asa Way, the lead plaintiff listed on the suit, had elevated levels of PFOA in his well and in his blood when tested.
"This latest in a series of decisions seems to be a reflection of sound reasoning on the part of the judge," Sullivan said Monday.
The well water and blood test results since the PFOA was discovered in 2016 provided "a well established record" of contamination levels, he said, which will require medical monitoring for diseases associated with PFOA, even for those who haven't fallen ill.
Elevated PFOA blood levels have been associated with testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases and conditions.
Many residents with wells in the contamination zone have since been connected to new municipal water lines funded primarily by Saint-Gobain over the past two years. The company has agreed to provide more than $40 million in two consent agreements with the Vermont Agency of Natural Resources to cover the water line construction and other costs to the state incurred in dealing with the contamination.
The company also is funding well replacements, long-term filtering or other alternatives to provide clean drinking water to residents for whom connection to a municipal waterline is not feasible from an engineering perspective.
Those agreements with the state are separate from the private class-action lawsuit.
In his decision certifying the suit as a class action, Crawford said the contamination zone has been described as an oval-shaped area around the two former ChemFab factories, encompassing 15 to 20 square miles.
The judge wrote that of 600 Bennington wells tested, two-thirds were found to have what are considered elevated levels of PFOA above state standards for drinking water.
Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien