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More than three years after PFOA contamination was discovered in Bennington, and four months after the state finished negotiating with the company responsible, residents are still dealing with the long-term impacts. Now, their grievances are at the center of a class action lawsuit in federal court.
Federal U.S. District Court Judge Geoffrey Crawford’s decision to grant class status in the case could allow hundreds of homeowners to seek property damages and medical monitoring from St. Gobain Performance Plastics, the owner of the former ChemFab plant in North Bennington. It could also set a precedent for future lawsuits against polluters in Vermont.
But even for the residents who have pushed this suit forward, that progress doesn’t change the fact that they still live on contaminated soil — and in many cases, have been drinking tainted groundwater for decades.
“I want to live as long as I can. I want the option of living out a natural life,” said Sandy Sumner, a named plaintiff in the suit. “We feel like that freedom has sort of been taken away from us.”
[Read more about the impact of PFOA on Bennington residents here.]
Sumner has lived about 300 yards from the plant since 1990. He and his wife dealt with health effects from the factory’s exhaust while it was still in operation, then found out in 2016 that their drinking water well was contaminated. He said this lawsuit is an opportunity to pressure companies to do better at handling toxic chemicals.
“They’re not going to do it on their own,” Sumner said. “They need help — to put a little pressure on them to make better decisions. More responsible decisions.”
On this week’s podcast, Sumner and other Bennington residents describe their experience with the community’s PFOA recovery. And VTDigger’s Elizabeth Gribkoff discusses why they’re taking their grievances to court.
**Podcast transcript**
This week: Bennington residents whose drinking water was contaminated with toxic chemicals from a nearby Teflon coating plant have won class-action status in a major lawsuit against the polluter. But despite their progress, community members say they’ll be feeling the effects of the PFOA crisis for decades to come.
VTDigger’s environmental reporter Elizabeth Gribkoff went to check in on the recovery process.
Gribkoff: I knew that water line construction work on the eastern side of Bennington was starting this summer. I was very curious if we could actually see where that was happening. And sure enough, we happened upon Willow Road being torn up.
We went over, saw some guys from Gallo Construction Company, and they had dug a pretty sizable trench. People were standing in the trench. They were backfilling — it was kind of in the late afternoon, so they’d already laid a certain amount of pipe down and then were backfilling where the pipe had been laid.
These are pipes that will be part of the town water system going forward.
Gribkoff: Yeah, these are connecting people who live in the eastern side of the PFOA-contaminated area to municipal water. And then once they lay down the larger pipe along the road, they’ll actually connect individual houses to municipal water.
Why is this happening? What is the need for new municipal water lines over in this part of Bennington?
Gribkoff: In 2016, the state discovered fairly widespread PFOA contamination. The state had reached a settlement a couple years ago with the company, St. Gobain Performance Plastics, that’s the current owner of the ChemFab plant, to provide access to clean municipal water for homes around the factory who found elevated levels of PFOA in their drinking water wells. However, it wasn’t until this April that the state kind of reached the final agreement to fund work for the eastern side of town.
There had been some disagreement between state officials and the company about whether all the PFOA contamination was actually from emissions from the ChemFab plant, because there’s also an old landfill by there that’s a Superfund site. So the company was contending, you know, there could be some other sources of emissions, but eventually the state reached a settlement to fund water line extension work for around 250 homes in the eastern side.
T.J. Donovan (at April 2019 press conference): Today’s announcement marks a major milestone on a long road. I’m grateful for the trust the residents of Bennington and North Bennington have bestowed upon the state while we work together to provide clean drinking water to the community.
I remember when the state announced this settlement, it was a really big deal. They made a pretty big show of it. What exactly was in that settlement that made it such a big step?
Gribkoff: The two settlements combined, I think there’s around $45 million from the company to fund water line extension work to hook up hundreds of residents around Bennington who were living in areas of PFOA contamination to municipal water. So that was a big deal because it’s, you know, providing long-term access to clean drinking water for residents, which obviously was important.
Where does that settlement end? What does it not cover?
Gribkoff: There are still some lingering concerns amongst residents. PFOA, you know, the reason it’s a toxin is that it’s been linked to certain kinds of cancers, thyroid diseases, immune system problems, developmental problems. So people are concerned about long-term health impacts of having drank contaminated water, for some people for decades. So there’s a group of actually nine Bennington residents that are suing the company. And they’re trying to get payment for long-term medical monitoring and also for property damages. Because they do now have access through the state settlement to clean drinking water, but they’re saying, you know, they used to have a well, those wells were capped. They can’t grow food on their properties anymore, they’ve lost some enjoyment of their properties. So they’re seeking damages for that as well.
Did the state speak to why the settlement that they landed on didn’t address any of those things?
Gribkoff: Yeah. So, during the press conference last April, when the state was announcing the settlement, Attorney General T.J. Donovan said that if instead of reaching a settlement, they had decided to sue the company, he said he felt like five to seven years later, so a much longer period of time, they would have been at roughly the same place they were. It was just a lot riskier to try to press for all that. And they really wanted to focus on getting people access to clean drinking water.
Donovan: Here we are three years later, delivering on a common goal that transcends administrations, transcends parties, because at the end of the day, this is about access to clean drinking water. We wanted to get something done. We got it done.
Gribkoff: And I think residents do feel pretty grateful about what the state did accomplish.
That just leaves the people in the area to take any other concerns that they have — they have to litigate those things themselves.
Gribkoff: Yes, they do. And actually, last Friday, Judge Jeffrey Crawford, because this is pending in federal court, he’s a federal judge — he granted class status to this group of residents. Because they’re seeking — it’s not just these nine residents who want compensation or payment for medical monitoring. They’re seeking to have anyone who’d been impacted by PFOA contamination in Bennington be able to receive some of these benefits, depending on how the lawsuit goes down the line.
So there’s going to be one class for people who lived in the contaminated area, and then a separate class for people who actually had elevated levels of PFOA in their blood to be able to obtain payment for long-term medical monitoring.
But overall, in this lawsuit, that means a lot more people have the potential, if they win, to get some benefit from what’s happening here.
Gribkoff: Yes, it’s true. But it’s still a long ways off. Like, this case still has yet to actually go to trial, so we’re talking years.
Sandy Sumner: I built the house in 1990. So almost 30 years.
Tell me about some of the residents that you talked to down there who do still have some concerns that they felt it was necessary to bring to court.
Gribkoff: We spoke with Sandy Sumner. He’s one of the plaintiffs who’s named in the class action lawsuit. He and his wife had moved up to Bennington, I think around 1990, and they built this beautiful house overlooking Mount Anthony, gardens in their yard and everything. It’s kind of their nest egg. And Sandy said that he had reached out to factory management and also to the EPA, because he had concerns about, when the plant was still going in the 90s, about the acrid emissions. And they just felt like, we don’t know what exactly is in these emissions, but it can’t be good for us.
Sumner: But you know, I was miserable during that time. My wife and I, we were constantly sick. We couldn’t keep our windows and doors open. Working outside in the summer was really hit or miss depending on the wind. We got headaches, migraines, sore throats, nosebleeds. We both had to have our noses cauterized at the time from the exhaust.
Gribkoff: And they said there wasn’t really an adequate response. They didn’t feel like the company changed anything to kind of address those emissions. They’re basically sitting — their house, is pretty much right uphill from where the smokestack was, so really, really close to that.
Sumner: Yeah, it’s probably 300 yards away, maybe.
Gribkoff: They discovered in 2016 that they had pretty high levels of PFOA in their well. When we spoke with Sandy, he said he’s kind of concerned about potential health impacts down the line.
Sumner: Well, I’ve certainly talked to my physician and he’s done his homework. So until real medical monitoring is in place, I will go to my doctor and — I have health issues, but they’re not really clear whether or not it’s connected to Lyme disease or PFOA or whatever. But I’ve had to, out of pocket, pay for a lot of tests that with medical monitoring. Maybe I wouldn’t have to. And with the insurance costs going up every year, it’s going to be a real issue. If, I mean — I want to know. I want to live as long as I can. I want the option of living out a natural life without this interference, interruption. And we just don’t know. We feel like that freedom has sort of been taken away from us.
Gribkoff: I think he’s concerned about potential health impacts from having drank water that was contaminated with PFOA for, you know, over two decades. He’s had — two of his neighbors have had what he called relatable cancers, or cancers that have been linked to PFOA. So I think there’s kind of that big question mark.
He’s also concerned about, you know, if he and his wife go to sell their house, move somewhere else, about a potential impact on property value.
Sumner: I really would like to make sure that we get what this house is worth when it comes time to sell it. But at the same time, strangely enough, anybody who wants to buy this house, I would make damn sure that they knew that even though those flower beds are beautiful, that soil and water, groundwater, is contaminated, and it will be while you’re living here.
Financially, if we took a hit on this house, we’d have a hard time. I was a carpenter most of my life, my Social Security is going to be low. Our finances these days aren’t what they used to be. So making a change to the next move, I don’t know what that will be or what that will look like.
Gribkoff: We also spoke with Jim Sullivan, who lives pretty close to Sandy and also pretty close to the ChemFab plant. And he actually — I think they actually built that house after the plant had already closed. So they hadn’t been smelling the emissions, didn’t really think about it too much. And then they discovered also in 2016 that they had really pretty elevated levels of PFOA in their well.
Sullivan: It’s a tough process to deal with, like you said. You don’t really appreciate how kind of fundamental to your daily life clean water is until you don’t have it and you go about finding other ways to do things for two and a half years. It’s pretty disruptive.
Gribkoff: Jim was actually one of the people who put the class action lawsuit into motion. He said he knew some attorneys, and had been kind of talking with them about, OK, what do we do here? And also in 2016, it wasn’t 100% clear whether the state would be able to reach an agreement with St. Gobain to fund water line work. So at that time, they were possibly looking to have the company pay for clean water in addition to medical monitoring and property damages.
Sullivan: It hit close to home. I consulted with some folks and some attorneys. I said hey, you know, we’re pretty concerned about a number of things. We’re concerned about our health, you know, ongoing monitoring of our health. We’re concerned about our property values. You know, we’re certainly concerned about our water supply over time. And a number of other things here. What, what are our options here? What do we do?
Gribkoff: Part of the reason he was also interested in seeking long-term medical monitoring costs is just wanting to, you know, keep an eye on his health and his family’s health going forward in case something does crop up so they can catch it early.
Sullivan: It’s not a routine blood test. It has to be sent off to special labs. So, you know, between the test results from my wife and myself and at least one other person that was in the house at the time, we could get a pretty good idea of what the blood concentration levels would be for other folks, but don’t really know for sure.
Gribkoff: They’re suing St. Gobain for essentially, property damages, loss of enjoyment of their property. One of the charges is actually battery for essentially exposing them to these contaminants.
One thing that they’re actually not looking for is payment. Say someone found that they had thyroid disease or some kind of disease that, you know, could be linked to PFOA, they’re not seeking — the lawsuit wouldn’t cover payment for treatment for that. And that’s because in order to actually statistically show in court, ‘oh this company’s pollution caused this disease,’ you just have to have way more people who are injured or ill. So they kind of know that that’s a battle they probably wouldn’t be able to win.
They’re trying to be strategic about these charges and sue the company for things that they think they can easily prove in court, and say, this was ChemFab or St. Gobain’s fault.
Gribkoff: Yeah.
Sullivan: It takes a lot of time. I mean, there’s motion after motion after motion filed by the defendant, and then, you know, we have to respond to all of them. It’s just like, let’s just make this thing happen. It’s more like, I suppose, if there’s anything it’s just kind of a little bit of long-term anxiety and frustration with just how long things take.
Gribkoff: The next step, the judge will still have to decide whether medical monitoring can actually be a remedy in Vermont, because lawsuits for medical monitoring are relatively new in the legal system. So courts in some states have allowed them, courts in other states haven’t. So this judge actually has to rule on whether Vermont would allow this, essentially.
There’s not a clear precedent for him to follow.
Gribkoff: Yeah, this would be in some ways a precedent-setting case in Vermont.
So this lawsuit, generally, is basically trying to pick up where the state settlements left off.
Gribkoff: Yeah, I would say so.
What kinds of things aren’t included in this lawsuit? Like, where does this piece of litigation end?
Gribkoff: Well I think something that at least right now seems kind of out of the realm of possibility for either the state to deal with or for, you know, residents to kind of obtain through this lawsuit is actually like cleaning up all the contaminated soil, simply because it’s such a large area. It’s not like, oh, ‘here’s one site,’ or ‘something spilled and we want to clean that up.’ They’re all around town.
Sullivan: A lot of these industrial pollution cases, it’s like, there’s a contaminated industrial site and everybody can focus on the contamination at that industrial site and clean it up. And then, there’s maybe some lingering stigma or something like that. But in this case, the contaminated site is right here, you know, we’re living on it, and we can’t get off of it. And everybody who’s had their property contaminated is living on the contaminated site.
Gribkoff: I spoke a little bit with Chuck Schwer, who’s the head of the state’s Waste Management Division, about why isn’t the state trying to require that. And he said basically the levels of contamination in the soil aren’t high enough where just by, say, touching the soil, or gardening outside, you would be at risk. So I think if they were, you know, we might be looking at something a little bit different.
Jackowski: This, what’s been going on because of the PFOA, has been a non-ending nightmare. I mean, really, and in many ways, I think the cure was worse than the PFOA.
We talked with Rosemarie Jackowski on the porch of the house that she had designed and had built in 1985. And she was saying she kind of regrets hooking up to the municipal drinking water. And she actually was telling us that she never drink her well water. She said she just had this almost like premonition, even though the water looked clean and you know, smelled fine, whatever, to not drink it.
Jackowski: So since 1985, I have carried in all my drinking water, and I don’t know what gave me the idea that we shouldn’t drink it. It was either intuition or divine intervention.
So she’s not facing the health effects.
Gribkoff: Yeah, I don’t think she has the same health effects that people who are drinking that water for decades would have. But she, you know, is kind of concerned that all of a sudden now, she’s older and has a fixed income, and you know, water bills are pretty expensive. And that’s just a cost that she’s struggling to be able to afford.
Jackowski: I’m serious. I’m very, very sorry that I hooked on to municipal water. Right now my municipal water sewage bill is approximately 10% of my annual income. Think about that.
Gribkoff: It’s one thing to have access to clean water, but you also then have to be able to afford to pay those bills when people before had their well water that they were drinking, and feels like, you know, maybe that’s something that a settlement with a company should have somehow addressed.
Jackowski: Why is it fair that I paid many, many thousands of dollars to have a well drilled, the well is now gone, destroyed, capped. And now I have to pay for the water. Why is the billing for the water not going to the people who caused the problem? I believe that St. Gobain should pay for the first 20 years of our water bills.
Gribkoff: She’s saying she’s getting water in her basement, which isn’t something that had been happening until she had, frankly, a pretty large part of her yard to put this smaller line in, I think she just had some concerns that, you know, some of the grading, or kind of finishing up that work, maybe hadn’t been done properly, and needed to be redone.
Are there other avenues that people have taken to try to get some of these concerns addressed that exist outside the settlements that the state has made and outside this other lawsuit that’s happening?
Gribkoff: In the Legislature, Bennington’s two senators, Senator Sears and Senator Campion had introduced a bill — it’s been referred to as the medical monitoring bill. And basically it would establish a right to action.
It essentially establishes a right to sue for medical monitoring damages if you can prove that a company caused pollution that could have health impacts. Because the way it works right now, there haven’t been court cases that have set a precedent for medical monitoring being something that is guaranteed. And in some ways, the case that’s going on now, probably will be that precedent setting case. But lawmakers, in the wake of the Bennington contamination — some lawmakers and environmental advocates are saying, you know, we shouldn’t have to wait to see how the courts decide. Like, this is just something that we should try to be more proactive about and put it into law. But that would be more for future potential contamination cases versus the one that’s going on now.
Sandy Sumner definitely expressed some frustration with the governor for vetoing that again last session. I think he felt like maybe he’d put business interests sort of above the interests of Vermonters.
Sumner: His argument for not allowing companies to be charged for medical monitoring is so lame, I’m sorry. And if he was in my shoes, I really wonder if you would still have the same opinion. It’s just such an obvious no-brainer for me.
Gribkoff: We also spoke a bit with Kiah Morris, a former Bennington representative who was one of the people who early on raised this issue of potential PFOA contamination. And she also expressed frustration with Scott for vetoing the bill.
Morris: I mean, the simple act of saying: you’ve harmed Vermonters and they have a right to be able to monitor their health because you did something that may affect them down the road in a devastating fashion. And so we want to build in safeguards to ensure that they’ll be able to get that screening to catch that cancer beforehand, or to catch those, you know, those anomalies, those physical anomalies in advance. And to know that those corporations were so invested in keeping even that very simple remedy away from people that were harmed is terrifying.
Gribkoff: Kiah was talking about the importance of having safeguards for people to be able to detect possible future impacts from contamination. And she also was saying she just had a hard time believing the level of lobbying that had happened in the building kind of against this bill and was sort of saying, do we want these businesses in Vermont if they’re going to be potential polluters?
Morris: If their business model requires the death of people living in this country, if their business model and their profitability model requires the poisoning of people and the environment, then it is not a business model that we need. We don’t need that kind of blood money.
What’s your takeaway from hearing all this?
Gribkoff: I think at this point, you know, a few years out from the initial discovery of contamination, we heard different things talking to different people. And I think people’s experiences had a lot to do with where they lived, how much contamination had been in their well. So it seems like people who are participating in the lawsuit are optimistic that this could impact companies in the future to be more careful about how they deal with contaminants or emissions.
Something that Sandy had said was that, when we asked him what was his main motivation for wanting to participate in the lawsuit, the first thing he said was, to try to put pressure on companies to not do something like this in the future and to better take care of them and manage potential contaminants or emissions.
Sumner: Because they’re not going to do it on their own. We know why they don’t do it on their own. And so they need help to put a little pressure on them to make the right, better decisions. More responsible decisions.
Gribkoff: I think there was a little bit of hope that this won’t happen again to other people.
Thanks, Elizabeth.
Gribkoff: Thanks, Mike.
