BENNINGTON — Two lawsuits related to chemical contamination around a former factory on Route 346 have been filed in Bennington Superior Court Civil Division.
The state Agency of Natural Resources is suing the original and current owners of the Warren Wire/General Cable plant for mitigation and other costs stemming from PFAS (per- and polyfluoroalkyl substances) that emanated from the factory and contaminated soil and groundwater.
Meanwhile, the current owner of the building — Mack Molding Realty Co. — is suing the original owners dating back to the late 1940s and their successor firm. That suit alleges the prior owners caused the pollution when the factory coated wire and other materials with liquid Teflon and therefore should be held responsible.
Mack Molding Realty, which is associated with the Arlington-based Mack Molding, purchased the former factory in 1988, and the company said it has used the building only as a warehouse during its ownership.
STATE FILES SUIT
The Agency of Natural Resources and the Attorney General’s Office filed suit March 18 against American Premier Underwriters Inc., GK Technologies Inc. and Mack-Pownal Realty Co., alleging they all are potentially responsible for costs associated with the pollution, including Mack as the current owner.
The suit claims that, “On information and belief, defendant American Premier Underwriters Inc., is responsible for the liabilities arising from releases of hazardous materials, including PFAS, during the ownership and operation of the facility by Warren Wire Company, Old GK Technologies, [formerly known as] General Cable Corporation, and New GK Technologies.”
WELL CONTAMINATED
That contamination, which included PFAS, was discovered in 2016 in the Pownal Fire District No. 2 well near the Route 346 factory building. Water samples showed elevated levels of PFAS chemicals, primarily PFOA (perfluorooctanoic acid).
American Premier Underwriters, working under the supervision of the state Department of Environmental Conservation, hired consulting firm Unicorn Management Consultants in 2016 to investigate the contamination and develop remediation options.
The company paid for a carbon filtering system, which was installed at the water district’s wellhead to remove PFAS from the water source serving more than 100 customers in the southern area of Pownal.
American Premier Underwriters also has been preparing a cleanup action plan for the DEC for remediating the contamination and ensuring long-term clean drinking water for the district customers.
CONSENT DECREE SOUGHT
The state’s suit contends that “additional investigation must be undertaken to more fully characterize the contamination resulting from the releases of hazardous material, including PFAS, from the facility and to further assess the risks posed by the contamination, and removal and remedial action are necessary to protect public health and the environment.”
The state “has incurred and continues to incur costs of investigation, and of removal and remedial actions that are necessary to protect public health and the environment,” according to the suit.
In addition, according to the suit, the state “hopes that defendant American Premier Underwriters’ contractor will continue to perform and complete the remaining investigation, removal and remedial action.”
The state also is drafting a consent order “providing for the continuation and completion of such work, which it hopes will be agreed to by the parties and approved by this court, obviating the need to litigate this case.”
And the state “is filing this complaint in an abundance of caution to avoid any future argument that an applicable statute of limitations has run on its claims,” the suit states.
TALKS UNDERWAY
Reached Tuesday, John Beling, the DEC’s general counsel, said that American Premier Underwriters has been cooperative, but no formal agreement or court-approved consent decree is in place to ensure remediation actions are completed and costs covered by the responsible parties.
Out of an abundance of caution, he said, the state filed suit in part to ensure no statute of limitations argument might be raised by any of the parties.
Since the state filed suit, Beling said, the companies have contacted the DEC indicating a willingness to negotiate a formal consent decree. He said the talks will focus on contamination related to the factory site on Route 346 but won’t include other sites in Pownal where PFAS contamination has been detected.
Those sites, including the original Warren Wire site off Route 7 and North Pownal Road, are still being investigated for development of environmental action plans, he said.
A consent decree approved by the court could be similar to two decrees the Agency of Natural Resources negotiated with Saint-Gobain Performance Plastics over PFAS contamination that emanated from former ChemFab factories in Bennington. The company agreed to provide about $50 million toward a range of remediation work and to reimburse the state for its costs in addressing the pollution.
MACK FILES SUIT
Meanwhile, Mack Pownal Realty Co. filed a suit on March 24 in Bennington Superior Court, stating that the factory site “has been leased by [Mack-Pownal Realty] to Mack Molding Company and used as a warehouse for storage of thermoplastic molding materials (e.g., non-fluoropolymer resins and other molding materials) and packaging owned by Mack Molding.”
The suit states that “MPR and Mack Molding have never engaged in any manufacturing or other process at the site that involved the storage or use of the chemical perfluorooctanoic acid (PFOA), perfluorinated alkylated substances (PFAS), or any hazardous chemical.”
The suit contends that under the Warren Wire and General Cable operations the owners “failed to exercise reasonable care in their storage, use, and disposal of PFOA/PFAS at the site,” and that at the time of Mack’s purchase of the property in 1988 “plaintiff [Mack] had no knowledge or reason to know that [the original owners] had released PFOA/PFAS at the site.”
The defendants “intentionally concealed” from Mack Realty “material information about WWC’s and GCC’s storage, use, and disposal of PFOA/PFAS at the site,” the suit contends.
As the seller of the site, the suit alleges, the defendants “had actual knowledge, superior knowledge or means of knowledge and therefore had a duty to disclose material information regarding the storage, use, and disposal of PFOA/PFAS at the site,” according to the suit, and Mack “has suffered harm as a result of defendant’s fraudulent nondisclosure.”
The suit seeks a judgment for Mack-Pownal Realty and “compensatory, consequential, and incidental damages in an amount to be determined at trial,” as well as “remediation and restoration; diminution in property value; contribution, and indemnification.”
