NORTH BENNINGTON — Residents who filed a class action lawsuit over PFOA contamination want a federal court in Vermont to throw out a company's motion to dismiss the case.
Attorneys for Saint-Gobain Performance Plastics had previously argued the case should be dismissed or stayed because the company challenged the state's drinking water standard for PFOA, a man-made chemical that has been found in private wells.
North Bennington residents' attorneys, in an Aug. 17 memorandum, argue the company's challenge in court "has no direct bearing on any of the legal issues" the lawsuit raises. The document states the court should deny Saint-Gobain's motion to dismiss the case because, in part, the company's attorneys cited a legal precedent that does not apply. PFOA, or perfluorooctanoic acid, has been linked to kidney and testicular cancers, as well as high blood pressure and cholesterol and thyroid problems. Of the 483 wells around North Bennington tested since February, 249 were found to have PFOA levels above what the state says is safe, or 20 parts per trillion (ppt). The Department of Environmental Conservation (DEC) believes it came from the former Saint-Gobain/ChemFab plant on Water Street.
North Bennington residents filed a class action lawsuit against Saint-Gobain in May. The complaint seeks at least $5 million in damages, as well as a court order for the company to pay to connect affected homes to municipal water, clean up contamination and implement long-term medical studies.
Saint-Gobain's attorneys filed a motion July 19 to dismiss or stay the lawsuit proceedings, because the company has challenged Vermont's 20 ppt health advisory standard for PFOA in drinking water, which the memorandum describes as "the lowest set by any state, federal or even foreign government." The EPA earlier this year set 70 ppt as the federal standard.
Saint-Gobain argued the case should be dismissed under the Burford abstention doctrine, which allows a federal court to abstain from hearing a case so a state court or agency can determine policies and laws.
The Aug. 17 memorandum states Saint-Gobain's use of abstention is "wholly unwarranted." Residents' attorneys cite case law to argue that the court can only dismiss a case if it presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar," or, if being tried in federal court "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."
The memorandum states that neither the plaintiffs' class definition nor their claims for damages depend on the state-imposed 20 ppt limit.
Contact Ed Damon at 802-447-7567, ext. 111.