BENNINGTON — The pace of a class-action suit over PFOA contamination of groundwater in sections of Bennington has been slowed by the COVID-19 pandemic, attorneys for the hundreds of plaintiffs said this week, but it remains on track for a trial in U.S. District Court or a possible settlement with Saint-Gobain Performance Plastics.
The three law firms involved have released a video and media statement to update those affected in terms of their health and through diminution of their property values, because of the long-lasting industrial contamination embedded in soils and groundwater.
“After nearly five years of litigation, lead plaintiffs in Bennington’s class action PFOA (perfluorooctanoic acid) contamination case are still waiting for a trial date,” the release stated. “Attorneys had expected the case to be adjudicated by now, but it has been delayed due to COVID-19 risks. With public health strategies progressing, attorneys are optimistic that a court date or settlement may be approaching.”
In a phone interview, two of the attorneys, David Silver of BarrSternberg Moss, Silver & Munson, of Bennington, and Emily Joselson, of Langrock Wool & Sperry, of Middlebury, stressed that they are ready to provide updates and to answer the questions of current or former residents who believe they might have been affected.
The firms have established benningtonclassaction.com, where people can learn how to contact the attorneys or find other information about the contamination or the progress of the suit.
Also representing the class-action plaintiffs are attorneys Gary Davis and Jamie Whitlock of Davis & Whitlock, of Ashville, N.C.
Since nearly five years has passed, some residents might not realize the suit is still pending, the attorneys said, or that they might still be able to join the suit and/or qualify for blood testing to determine their level of PFOA.
“We also want them to know we are still fighting for them,” Silver said.
The attorneys said some 2,300 Bennington and North Bennington property owners have real estate within an area that was adversely affect, based on a state-identified contamination zone.
And a subgroup of between 500 to 1,000 residents who consumed contaminated well water and have elevated levels of PFOA in their blood make up the exposure class.
PFOA has been associated with kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, high cholesterol and pregnancy-induced hypertension, and one aspect of the suit has sought continued medical monitoring for the exposure class, as the chemical is known to diminish slowly in the blood over many years.
The lawsuit was certified as a class-action in 2019, and an appeal by the company of that decision by Judge Geoffrey Crawford in U.S. District Court in Rutland was later rejected at the appellate level, the attorneys said.
They said they now expect a trial in the fall, unless there are further COVID-19-related delays, or a settlement agreement is reached with Saint-Gobain.
DISOVERED IN 2016
The suit was filed over PFOA contamination of soil, groundwater and hundreds of private wells around two former ChemFab Corp. plants here, which Saint-Gobain acquired shortly before closing the last Bennington plant in 2002 and moving the operations to New Hampshire.
Filed in May 2016, the lawsuit followed discovery of the chemical – associated with the liquid Teflon that ChemFab used to coat fiberglass and other fabric and dry them at high temperature — in numerous local wells.
State environmental officials concluded that the contaminant was dispersed through factory stack emissions over parts of Bennington and over time worked into soil and then the groundwater. ChemFab began in 1968 at 108 Northside Drive and later moved to a newer 46,300-square-foot factory and warehouse on Water Street in North Bennington, where it operated through 2002.
It is only since the early 2000s that PFOA and related industrial chemicals, which were used for decades in consumer and industrial products, emerged as a long-lasting contamination threat in water supplies around industrial sites worldwide.
“The outcome of this class action suit is likely to inform future cases, and points to the scope of the chemical industry’s potential future financial liability,” according to the release. “Industry advisors and attorneys representing multinational corporations that manufacture or process PFOA and related chemicals PFAS (per- and polyfluoroalkyl substances) are expected to continue to monitor the case.”
Joselson and Silver said that, while Saint-Gobain has reached two consent agreements with the state that required the company to provide some $50 million for new municipal water lines to contaminated properties and to cover other costs of addressing the pollution, the company has not admitted liability for harm caused to the health of residents or to their property.
The contaminated wells have been replaced by a municipal source, they said, but the groundwater is expected to be reclassified by the state as Class IV, or unsuitable as a source of potable water because of PFOA, thereby affecting property values going forward for many years.
The ongoing lawsuit “will be the first such case in Vermont, and the first in the state to request that a PFOA polluter pay for the cost of medical monitoring for members of the exposure class,” the attorneys said in a release.
For the property class members in the suit, the attorneys said they are seeking recovery for lowered property values as a result of the contamination, dubbed “property diminution.”
They said that, according to the suit’s lead plaintiffs and an independent real estate expert, claimed losses can range from approximately 35 percent to 11 percent of each class member’s overall property value.
“If a jury agrees, the potential payout could be significant across the class,” the attorneys stated.
Joselson discussed the importance of the case in a video interview that was shared with suit class members.
“Under federal law, we currently leave it up to chemical manufacturers like DuPont to report to the EPA if they are producing and selling a chemical that’s unsafe,” she said. “Some companies don’t report their unsafe chemicals, and that was the case with the manufacturers of PFOA.”
Joselson said she and her co-counsel are confident about the status of the case, and are committed to presenting the evidence to a Vermont jury.
“We have litigated virtually every possible legal issue for more than four years now,” she said. “We’re ready to try this case in court, if we’re not able to settle it first.”