Legal action to address PFOA impacts could take years
In this five-part series, Jim Therrien, who writes for New England Newspapers in Vermont and VTDigger, and VTDigger reporter Mike Polhamus examine the history of the Bennington plants and the impact of toxic chemical emissions on local residents.
BENNINGTON — News of PFOA groundwater contamination swept through Bennington in early 2016. Today, affected residents likely are years away from any legal resolution.
At least 140 households are expected to join a lawsuit over the pollution if the suit is certified as a class-action. The scheduled trial date in U.S. District Court is in October 2018, barring a settlement with Saint-Gobain Performance Plastics, the company the state believes liable for contamination emanating from the former ChemFab Corp. factories here.
Attorney David Silver, of Barr Sternberg Moss Silver & Munson, one of four law firms working with the plaintiffs, said the residents understand the slow pace of such a large, complex suit but they are determined to move forward.
"Our clients are anxious about having PFOA [perfluorooctanoic acid] in their bloodstream and in their wells," he said.
The class action lawsuit was filed in May 2016 against Saint-Gobain, a U.S.-based subsidiary of the international firm, Compagnie de Saint-Gobain, which purchased ChemFab in 2000. The firm closed its North Bennington plant on Route 67A two years later and moved the local operation to New Hampshire.
Starting in the late 1970s, the local ChemFab company coated fiberglass fabrics and other products with Teflon. Prior to that, ChemFab operated in a now-vacant building on Northside Drive in Bennington, where the business was launched in 1968.
PFOA was used in the production of Teflon and is believed by state environmental officials to have spread primarily through factory exhaust stack emissions, after the product was baked onto fabrics during a high-temperature coating and drying process, reaching temperatures up to 650 degrees.
PFOA was used in the preparation of Teflon, with which ChemFab coated fiberglass fabrics, conveyor belts and other products, baking dry the materials in a process that produced fumes and emissions from the factory stacks.
The chemical accumulated in the soil of surrounding neighborhoods, officials believe, working its way into the groundwater and into hundreds of wells — in some cases more than 1.5 miles from the plants.
In state-supervised testing of 570 local wells, 276 were found in the spring to have PFOA levels above 20 parts per trillion, the state's advisory standard for safe drinking water. Additional well, soil and hydrologic testing is in progress.
Past medical studies involving PFOA exposure found a link to testicular and kidney cancers, thyroid disease, high cholesterol and ulcerated colitis, among other diseases and conditions.
Researchers found only a "probable link" instead of "causation" at least in part because the study was limited to determining whether a probable link exists. The study, which was conducted by DuPont in response to a lawsuit against the company, cost $30 million and included tens of thousands of people.
The Vermont class action case, representing households in the contamination zone, alleges negligence, nuisance, trespass, battery, and strict liability claims against Saint-Gobain, "due to the diminution in property value, loss of use and enjoyment of property, annoyance, upset, aggravation and inconvenience and other damages which they have suffered as a result of the PFOA contamination caused by defendant."
According to attorneys familiar with the lawsuit, Judge Geoffrey Crawford has set a "pretty ambitious" trial schedule in U.S. District Court in Rutland. In dealing with the complex environmental and legal issues, Saint-Gobain is represented by a team of attorneys from two firms, from New York City and Brattleboro, and the plaintiffs are supported by attorneys from four firms, based in the Bennington area, northern Vermont and North Carolina.
Some of the attorneys on both sides have extensive experience in environmental law and class-action suits.
The schedule includes having initial disclosures on class-action certification in by Feb. 13, 2018, and initial disclosures on the merits of the suit by March 13, all leading toward the projected Oct. 1 trial date next year.
While preparation continues, discussions toward a possible mediated settlement are expected. Such an effort is required and involves appointment of a neutral evaluator and scheduled meetings between the parties.
The discovery phase relating to whether the action should be certified as a class-action suit and the phase relating to the merits of the suit are scheduled to overlap, with arguments, hearings, depositions and other aspects of the pretrial period moving on parallel tracks, rather than proceeding one phase at a time.
That could favor the plaintiffs, said one attorney, who observed that the goal of defense attorneys — who have "endless resources" — appears to be to "draw this out as long as possible."
For instance, the lawyer said, Saint-Gobain attorneys have "slowly" provided discovery documents to the plaintiffs and have filed two motions to dismiss the suit, which required responses from the plaintiffs and further responses from the responses while raising issues the court has had to deal with.
Silver concurred with that assessment: "In my view, they [Saint-Gobain attorneys] are litigating every aspect of the case, which is their right," he said, but the attorney questioned whether a "corporate citizen" approach of accepting responsibility for the contamination and moving more rapidly toward a settlement would be better for all parties.
"In a perfect world, I wish they would take responsibility and make amends," he said.
Mark Cheffo, of Quinn Emanuel Urquhart & Sullivan, of New York, one of the attorneys representing Saint-Gobain, denied that the firm is seeking to unnecessarily draw out the suit proceedings. He said the company was satisfied with the trial schedule as set, and in fact the defense had asked for more time to meet one of the schedule deadlines.
He added that motions to dismiss are common, especially in complex suits that raise a wide range of legal issues and involve multiple claims from the plaintiffs that deserve a careful response. But he said that doesn't mean the company is trying to delay a trial.
A ruling on whether a class-action will be certified — and on which claims in the suit can be pressed on behalf of a class — are key issues that attorneys believe could influence settlement discussions.
Cheffo said the class-action claims of the suit will be contested, contending that "none are suitable for class action." He said the residents' claims are too diverse to fit into a class and should be pursued in individual suits.
Cheffo also noted the contested issue of whether the plaintiffs should submit medical histories, as requested by the defense. He argued that since continued medical monitoring of affected residents is one of the suit demands, the medical records should be required.
The plaintiffs have argued that such records should not be required to support the type of claims in the suit, and requiring submission of medical records could discourage residents from joining a class action.
The lawsuit seeks damages for all households within the contamination zone; continuing medical monitoring of residents for possible effects of PFOA exposure, as well as damages under the state Groundwater Protection Act, which allows suits by individuals over contamination of a groundwater aquifer.
Also of concern, according to some of the residents, is whether they will be compensated for the cost of their well and for the water bills they would have to begin paying should they be connected to a municipal system.
The suit contends that when Saint-Gobain acquired ChemFab in 2000 through a $171 million merger agreement, the firm assumed all liability for the manufacturing processes of ChemFab.
The complaint focuses on damages concerning alleged negative effects on property values; and trespass, nuisance and assault issues in the form of PFOA entering the soil and groundwater of plaintiffs' properties, PFOA entering residents' bodies through exposure to water or other methods, and emotional stress.
In a lengthy response to the complaint, Saint-Gobain attorneys deny the allegations and list 76 affirmative defense arguments against the claims.
These include that the company didn't own ChemFab when all or most of the contamination occurred; that if the firm is found to have liability, Saint-Gobain should have only an "equitable share" of that burden; that the business was following current state and federal guidelines in operating the plants; that the plaintiffs can't establish that there was a "significant concentration" of PFOA contamination to reasonably relate them to the alleged injuries; that the company complied with state and federal rules for handling the chemicals; that alleged negative effects on property values cannot be shown, and that a nuisance allegation requiring damages cannot be claimed under state law in this instance.
Attorneys have said individual lawsuits also could be filed by residents over specific medical conditions allegedly caused by exposure to PFOA.
Medical studies following discovery of PFOA contamination of water supplies in West Virginia and nearby states found that PFOA exposure is a suspected in development of certain cancers and other diseases or conditions. However, no specific levels of exposure likely to result in disease has been established.
Vermont Department of Health officials have reported that blood tests of about 500 residents in the affected areas of town found an average of 10.0 micrograms per liter of PFOA in blood, compared to the estimated national average of 2.1 micrograms per liter.
Individual readings as high as 1,125 were detected in blood draws organized by the department.
PFOA levels have been shown to fall slowly over a number of years once the source of exposure, usually drinking water, is removed.
Another of the plaintiffs' attorneys is Douglas Ruley, of Davis & Whitlock, of Asheville, N.C., the former director of the Environmental and Natural Resources Law Clinic at Vermont Law School. His firm has participated in a number of major environmental law class action suits.
Ruley said the judge's determination on class action status will address such issues as the size of the group that can participate and which of the plaintiffs' allegations will be included.
There are more than 300 households in the contamination zone, he said, "although the numbers are changing — it is literally a fluid situation."
He added, "It is our contention that all property owners in the zone are affected by this The judge will decide what claims are suitable for classwide treatment."
In addition to the current suit, there are "there are a number of people who are suffering from conditions that have been linked to PFOA exposure," Ruley said, and they are now evaluating those claims for possible separate legal action.
Nationwide, he said, there are several PFOA exposure-related cases underway, including in Alabama and Minnesota. And in February, 3,500 plaintiffs in a class-action suit in the West Virginia area, concluded a $671 million settlement with DuPont over PFOA contamination of water supplies.
Robert Bilott, a lead attorney in that suit, spoke about the class action and the history of PFOA contamination during a conference on PFOA in water supplies in May at Bennington College.
Prior to the settlement with DuPont, individual suits against the company (which manufactured Teflon in West Virginia) went to trial and the plaintiffs were awarded large settlements.
"What that says to me," Ruley said, "is that when evidence concerning this toxic chemical is presented to a jury, [the company] has been held liable for damages."
He said a couple of hundred sites around the country are now being evaluated or investigated for the extent of PFOA contamination, although not all involve drinking water.
Teflon or similar substances containing PFOA also were used in a variety of consumer products over several decades, leading to the estimation that nearly everyone in the U.S., and possibly in the world, has at least a trace level in their blood.
Ruley and Silver stressed the key role of class-action suits in battling what is often a large corporation able to pay for extensive, experienced and costly legal defense.
"I think this is really a good example of why it is important to allow a class action," Silver said of the Vermont case. "It is the only way to go up against a large corporation."
Such a long, complex suit "is unbelievably expensive," he said, "and would be impossible for us to do financially on our own."
That's one reason four firms are involved, Ruley said, essentially forming a class group of their own to take on the Saint-Gobain legal teams.
Silver said "so-called tort reform efforts to limit class action and [attorney] fees" threatened the ability of groups of citizens to collectively fight large companies or other entities when they believe that have been wronged.
"I guarantee you no one in Congress has asked whether corporations can limit what they pay their lawyers," he said.
Ruley said he sees similarities around the nation in how the cases in Bennington and nearby New York state are playing out and moving toward settlements for citizens harmed by PFOA pollution.
In a related legal action, Saint-Gobain challenged in Vermont Environmental Court the state's 20 parts per trillion advisory level for PFOA in drinking water, which is the lowest in the nation. But that challenge was dropped as part of the partial settlement with the state over water line extensions announced in July, and any settlements going forward will be based on that standard.
The state has been negotiating with the firm for months over the cost of extending municipal water system lines to affected areas. A factor in that process could be legislation sponsored by Bennington County Sens. Brian Campion and Dick Sears and signed in June by Gov. Phil Scott. It would hold any entity releasing PFOA into the atmosphere responsible for funding construction of public water line extensions.
In late July, an agreement was announced calling for Saint-Gobain to fund $20 million in water line extensions to about half the properties in the state-identified contamination zone, while talks are continuing to provide permanent safe drinking water solutions for the remaining households.
State officials have stressed that their focus and purview is on providing clean drinking water, not seeking damages for affected households and individual residents, which they said is a matter for civil litigation on behalf of private parties.
Despite the partial settlement with the state over extension of water lines, Saint-Gobain has not accepted that it is legally liable, Cheffo said, which he said is typical in such cases during negotiations or while a suit is pending. But he said the agreement shows that the company is cooperating in the effort to respond to the contamination, which he hoped was becoming evident to Vermonters.
"We would like to have less focus on `who done it,'" the attorney said.
Citing other potential sources from commercial products or manufacturing for PFOA that might have contributed to pollution of groundwater — including carpet treatments, upholstery sprays and even ski wax — Cheffo said Saint-Gobain wants all potential sources to be considered as well, and that has been a prime focus of the continuing talks.
A photo gallery of images from the ChemFab series can be found here — https://mng-nenivt.smugmug.com/Chem-Feb-PFOA-Series-090117/
Find a video about the series here — https://youtu.be/BbyXKpAyLX4
Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. @BB_therrien on Twitter.
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