- Thomas James
It's been about two years since Bennington resident Libby Harris learned that her drinking water had been contaminated with perfluorooctanoic acid (PFOA), a toxic chemical that had been emitted by a now-shuttered factory. The retired high school teacher and a number of her neighbors are suing Saint-Gobain Performance Plastics, which purchased the factory in 2000, for the alleged damage done to their health and homes.
It could be years — if ever — before they get financial relief. "We're in limbo in so many ways," Harris said last week.
As the case wends its way through the courts, Bennington's two Democratic state senators, Brian Campion and Dick Sears, are pursuing legislation that would make it easier for Vermonters to hold polluters accountable in the future. The Senate passed the bill last month, but businesses ranging from large manufacturers to local ski resorts have warned that it would have a chilling effect on Vermont's economy. When the House Judiciary Committee took up the legislation last week, lobbyists quickly filled the room.
S.197 would make companies liable for toxic chemical contamination, even if they weren't negligent when they released the chemicals and regardless of whether they knew the chemical was harmful. That means residents wouldn't have to prove that a company was careless or violated regulations.
The concept is known as "strict liability," a standard to which highly toxic Superfund sites, for example, are subject. Vermont would be the first state to apply it more broadly, to any company emitting toxic chemicals.
In cases involving multiple polluters, the bill would allow victims to sue a single company for all the damages, rather than taking each of them to court individually.
The bill would also make it easier for alleged victims to force companies to fund periodic testing for contamination-related diseases and conditions. Currently, people must first prove in court that emissions sickened them; the proposed law would require only proof of exposure to the chemical.
"It certainly would be comforting for us to be able to have that medical monitoring as we're going forth with this PFOA in our blood," said Harris. "Right now, there's nothing." PFOA has been linked to cancer, thyroid disease and other illnesses. Harris was diagnosed with fibromyalgia several years after moving to Bennington in 2004 and wonders whether the contaminated water she drank is to blame.
A company called Chemfab used PFOA for making Teflon products at the Bennington plant for 30 years. Saint-Gobain bought the business in 2000 but closed the factory two years later. In 2005, the U.S. Environmental Protection Agency deemed PFOA a likely carcinogen and sued the DuPont company, which manufactured the chemical, for failing to disclose its health and environmental risks.
It wasn't until 2016 that Bennington residents learned that PFOA had poisoned their soil and private wells. In a settlement with the state, Saint-Gobain agreed to pay $20 million to connect about 200 homes to the town water supply, which was unaffected. But the company is resisting the state's effort to get it to pay for another 200 or so homes, and residents are on their own when it comes to recouping potential health care costs and property value losses.
Sears and Campion say their legislation is based on a simple belief: When a company harms a community, that company — not the victims or the taxpayers — should pay the costs. The bill isn't retroactive, so it won't help Harris and her neighbors.
"This isn't really revolutionary," Campion said. "This is giving people a little more power against a really, really powerful and wealthy industry."
Emily Joselson, an attorney at Langrock Sperry & Wool who is part of the legal team representing the Bennington residents, said clients like hers "did absolutely nothing except suffer the hard luck of being next to an industry that allowed its pollution to get out." While her clients' position provokes sympathy, it's often challenging for victims to pursue legal cases, which can be prolonged and expensive. Even if the bill passes, Joselson predicts that future victims of pollution would face an uphill battle in court.
They'd still be required to trace the pollution back to the company and prove it harmed them. That can be quite a challenge, according to Jon Groveman, policy and water program director at the Vermont Natural Resources Council, which is pushing for the legislation along with several other environmental organizations. He noted that Saint-Gobain recently produced its own study disputing the state's assertion that it was responsible for PFOA contamination in a certain part of town.
"It's not a level playing field," Groveman said. "The polluters — they're still way ahead."
Toxic chemical regulation is notably weak, according to Vermont Law School professor Kenneth Rumelt, because the chemical industry has fought to keep it that way. "Industry does not have clean hands," he said, referring to its lobbying efforts at the state and federal level.
A report last year commissioned by the legislature noted that the state knows little about the prevalence and toxicity of the vast majority of roughly 85,000 chemicals in a federal toxic chemical inventory.
"It's very, very often the case that industries know more than the regulators know about certain emerging toxins and contaminants," Joselson said.
To proponents of the bill, that assertion underscores the need for a clearer way for individuals to hold companies accountable in court.
But manufacturers, chemical companies, insurers, chambers of commerce and a number of other trade groups contend that the legislation could wreak havoc on Vermont's economy, creating uncertainty for businesses large and small.
GlobalFoundries, which operates the former IBM semiconductor chip plant in Essex Junction — and is one of the state's largest employers — opposes the bill, arguing that it "renders meaningless" the current chemical regulatory system. A representative didn't respond to questions about whether the legislation would affect the company's operations.
Bill Driscoll, vice president of the manufacturer trade group Associated Industries of Vermont, observed that the bill treats flagrant polluters no differently from companies that comply with all state and federal regulations. Driscoll said the bill would make doing business in Vermont "extremely uncertain and risky."
His was one of 23 trade groups that signed a letter urging lawmakers to ditch the bill. Another signatory was the American Insurance Association, which has warned that the legislation could have "grave consequences" for the insurance market.
"There is a reason no other state in the country has a law like this — it is very clearly unreasonable," the association's northeast regional vice president for state affairs, Alison Cooper, said in a statement. She also warned that making companies responsible for the cost of medical testing for anyone exposed to the chemical could lead to an "avalanche of claims."
Mike Walsh, a managing director at the insurance firm NFP, said he recently got a phone call from Sugarbush Resort's risk manager, who wanted to know how the bill might change insurance rates. He told her that insurers would likely refuse to cover the kind of liability risk the legislation would create because there would be no way to estimate the cost of future claims. "Every insurer would be foolish not to make sure that [strict liability for chemical contamination] is excluded from every policy," Walsh said. If an insurer did agree to cover the risk, its rates would likely be steep.
Candice White, vice president of communications and brand management at Sugarbush, confirmed the resort's concerns about insurance costs. Chemicals aren't a fundamental part of the business, but Sugarbush does use some to keep its pools and guest rooms clean — and the proposed law would apply to minor and massive chemical releases alike. "Just about all of our housekeeping materials are nontoxic and environmentally friendly," White said. Even so, "this bill will not protect businesses that are doing the right thing now, if something in the future is deemed harmful."
Other ski mountains share the worry, and the Vermont Ski Areas Association also signed onto the letter opposing S. 197.
Sears shrugged off the growing dissent, saying, "I'm used to the scare tactics."
The bill's opponents have a powerful ally in Phil Scott. The Republican governor included the measure on a list of 13 "problematic" bills that he sent to legislators last month. His letter claimed that the legislation would increase insurance costs to the point of creating a "potentially insurmountable barrier to doing business in Vermont."
Economic Development Commissioner Joan Goldstein argued that the bill would put Vermont at a "distinct disadvantage" when trying to attract new businesses and encourage existing ones to expand. "Why would they want to be in a state where there is unlimited exposure [to lawsuits]?" she asked. "We just don't feel like that's a reasonable thing to have that expectation that they're going to be responsible for ever and ever."
Such a demand seems eminently reasonable to Joselson. "Isn't it an important public policy to tell manufactures, 'We are happy to have you come to Vermont, [but] if you're going to be using dangerous chemicals, and they get out and harm your neighbors, you are going to be responsible'?" she said.
Thom Gentle, a retired art restorer, moved to Bennington in 2008 and bought a house half a mile from the former Chemfab plant, which had been shuttered for six years. He said he had to sit down when he got his water test results back in early 2016 — the PFOA level was 438 parts per trillion. The state has deemed anything above 20 parts per trillion unsafe to drink.
Gentle believes the legislation, if passed, would encourage companies to think twice about using questionable chemicals. Had it been in place when the factory was in operation, "I think there's a possibility it would have precluded a lot of this from happening," he said. As it is, "I guess we just hope for the best."