BENNINGTON — Attorneys pressing a class action suit against Saint-Gobain Performance Plastics over pollution of groundwater in Bennington want new information that came to light last week to become part of the suit discovery process.
The information came in the form of a whistleblower complaint filed April 6 with the U.S. Occupational Safety and Health Administration by former Saint-Gobain attorney Amiel Gross.
Gross contends he was unlawfully fired last year after raising concerns about the company’s response to pollution related to PFAS (per- and polyfluoroalkyl substances) around industrial sites in Vermont, New York, New Hampshire and in other states.
Gross was among the attorneys representing Saint-Gobain over the previous four years in suits targeting the impacts of industrial operations on drinking water supplies.
Those actions included the class action suit filed in May 2016 in U.S. District Court in Vermont over contamination of hundreds of wells around two former ChemFab Corp. factories in Bennington, which were last owned by Saint-Gobain.
The discovery phase of the suit had essentially concluded, and the suit appeared to be moving toward a trial date in the fall if no settlement is reached. But a motion filed this week by the plaintiffs seeks to reopen discovery to consider Gross’ allegations, to depose company officials cited by Gross and to seek documents referred to in the OSHA complaint.
Emily Joselson, of Langrock Sperry & Wool, of Middlebury, and James Whitlock, of Davis & Whitlock, of Ashville, N.C., filed the motion and are asking for an emergency hearing.
They are among the team of lawyers representing the Bennington area plaintiff’s group, which also includes David Silver of BarrSternberg Moss Silver & Munson.
If the plaintiffs’ motion is granted, Joselson said this week, that shouldn’t significantly delay a trial start.
“As we indicate in our motion to reopen,” she said in an email, “there’s already some other discovery to complete before trial, so this presumably could occur simultaneously, and wouldn’t cause significant delay, especially since we do not yet have trial date.”
As for the setting of a firm trial date, which has been delayed during the COVID-19 pandemic, Joselson said, “As for timetable, the court has indicated a trial as soon as it is safe. Impossible to predict, but vaccines are going well in Vermont and courts are slowly reopening.”
The plaintiffs’ motion states in part, “Mr. Gross’ complaint, if true, outlines [Saint-Gobain’s] questionable, and perhaps misleading, response to this PFOA contamination class action, as well as the sister suits against defendant in New York and New Hampshire, all directly coordinated by defendant’s parent company in France.”
The suit is before Judge Geoffrey Crawford in U.S. District Court in Rutland.
Attorney Jeanne Christensen, of Wigdor LLP, of New York, filed the OSHA complaint April 6 on behalf of Gross.
The action names the company’s corporate parent, France-based Compagnie de Saint-Gobain; Saint-Gobain North America; and the current and former CEOs of Saint-Gobain North America, Mark Rayfield and Tom Kinisky.
Gross is seeking reinstatement to his position with the company, back pay and benefits; monetary and punitive damages and attorney’s fees.
He also seeks orders requiring the company to refrain from alleged violations of federal whistleblower protection provisions and from continuing alleged retaliation against him, which he said occurred before and after he was fired last fall.
“Employees that do the right thing should be rewarded — not discarded and retaliated against,” said Christensen in a release when the complaint was filed. “Our client did not want to be part of the PFOA legacy problem. He tried to be part of the solution. Sadly, there is nothing about Saint-Gobain’s treatment of Mr. Gross that suggests it cared about anything except the bottom line.”
The company flatly denied the OSHA complaint allegations in a statement provided by Lia LoBello, senior manager of business communications.
“Saint-Gobain is in receipt of the baseless lawsuit filed by our former litigation counsel, Amiel Gross. Mr. Gross was separated from the company following an investigation for violating company policies, including our harassment prevention policy, among others. In his suit, Mr. Gross makes many false allegations,” according to the statement.
Gross was an attorney based at the headquarters of Saint-Gobain North America in Malvern, Pa. He states that he defended the company as it became the target of several class action suits brought over PFAS pollution from 2016 through October 2020.
In his OSHA complaint, Gross said that in 2019 he began expressing concerns related to PFOA (perfluorooctanoic acid), the PFAS chemical predominately identified in hundreds of wells across a swath of Bennington, North Bennington and parts of Shaftsbury.
He said that his involvement in defending the company in suits made him aware of a “massive potential liability exposure faced by Saint-Gobain, as well as the potential for environmental and community exposure to PFOA in drinking water.”
ChemFab, which Saint-Gobain acquired in 2000, two years before the North Bennington factory operations were moved to New Hampshire, used liquid Teflon that was then made with PFOA to coat fabrics and dry them at high temperature.
Vermont environmental officials concluded that emissions from the factory stacks settled into the soil over the years ChemFab operated here — 1968 to 2002 — and worked into groundwater and drinking water wells.
PFOA exposure, primarily through drinking water, has been associated with cardiovascular disease and effects on the reproductive system and the immune system; and on child development and cancers, including testicular, prostate, thyroid and kidney cancers.
The Bennington class action suit seeks damages for negative effects on property and its value, and for those who drank contaminated water and have an elevated level of PFOA in their blood.
Among the specific allegations in Gross’ complaint are that he was once told by Tom Kinisky, then the CEO of Saint-Gobain North America, not to investigate the extent of PFAS pollution around company sites, because that would allow him to afterward “say you didn’t know.”
Gross alleges Kinisky said during a meeting: “If you look, you will find it. If you don’t, you can say you didn’t know.”
Gross said another superior in the company, Carol Gray, then the Deputy General Counsel for Saint-Gobain North America, was present at the meeting and remained silent.
The company response to the complaint stated, however, that, “First, the conversation Mr. Gross alleges with former CEO Tom Kinisky never happened. Second, despite access to multiple ethics hotlines and numerous opportunities to raise concerns directly to incoming CEO Mark Rayfield and other senior leaders, Mr. Gross did not do so. Third, our work in multiple locations proves that we take remediation seriously and have instituted custom responses based on the unique geographic needs of each location. We also maintain company channels dedicated to our remediation activities.”
Gross also said he became aware during his work as an attorney for the company that Saint-Gobain allegedly had “almost certain” knowledge about PFOA contamination in Hoosick Falls, N.Y., water in 2003, but didn’t investigate or act on that knowledge until 2015.
By then, he noted, the pollution had come to light after a resident had conducted independent testing that revealed PFOA contamination of village water. The company also has a facility in that community.
Gross said in his complaint that he expressed his concerns to Gray and others in the company about the liability Saint-Gobain could face because of pollution but they took no significant action in response.
Gross likewise refers to an alleged inadequate response by the company to suspected pollution near several sites, including in Ohio, New Jersey, Connecticut and Merrimack, N.H., where the ChemFab fabric coating operations of the North Bennington plant were relocated in 2002.
In its statement, the company said that environmental remediation programs have been in progress for years at its industrial sites and are well documented, and that Gross was aware of that work.
Gross also alleges he faced retaliation from the company for raising concerns about the PFAS contamination sites and the potential effects on the health of surrounding communities. Retaliation, he said, included threats to forward false professional conduct allegations to the bars in states where he is licensed to practice as an attorney.
The company response states that Saint-Gobain “has very strong anti-retaliation policies. We plan on vigorously defending this claim and are confident that there will be no finding of retaliation during Mr. Gross’s employment, or after.”
In October 2020, according to the OSHA complaint, Gross was informed that he was under investigation for “insubordination,” and he was asked about “certain disparaging words that he allegedly used regarding another employee.” He said he was fired soon after.
The company response said that Gross was terminated “following an investigation for violating company policies, including our harassment prevention policy, among others. In his suit, Mr. Gross makes many false allegations.”
The complaint contends that Gross was acting as a whistleblower and his actions were protected by federal whistleblower provisions.
Asked about the process and timetable for the OSHA complaint, Christensen said this week, “The complaint is required to go through OSHA as a prerequisite to federal court. OSHA decides initially if the case goes to the [Environmental Protection Agency] or to [Securities and Exchange Commission] since we assert claims under three different laws … If the agency does not investigate and decide the matter within 180 days, we can seek a notice of the right to sue in court and do so.”