Two significant events have occurred out of Vermont in April 2022 involving PFAS issues – one on the litigation front and one on the legislative front. Both are of considerable note to anyone actively following PFAS issues, with the pending legislation poised to have considerable impacts on PFAS litigation in Vermont for years to come. Companies with legacy or current PFAS use issues must pay close attention to these developments and understand how they will impact business interests.

Vermont PFAS Litigation Settlement

On April 18, 2022, a federal judge approved a proposed $34 million settlement in a class action lawsuit involving manufacturer Saint-Gobain. A lawsuit was filed in 2016 against Saint-Gobain, in which it was alleged that the company produced fabrics coated with PFAS (specifically, PFOA) from 1969 – 2002. The discharge and effluent from the manufacturing process allegedly contaminated local drinking water sources, including drinking wells in the Bennington, Vermont region. $26.2 million of the settlement amount would be placed into a fund intended to compensate plaintiffs for property damage and devaluation. $6 million would be placed into a fund for a 15 year PFOA medical monitoring program for the plaintiffs. Several years ago, Saint-Gobain paid $40 million o comply with state consent orders to extend municipal water lines and provide clean drinking water to homes with contaminated wells.

While the Vermont PFAS settlement is but one of an increasing number of settlements related to PFAS contamination of drinking water or soil, the notable portion of the settlement is the $6 million for medical monitoring. While nationwide, courts remain divided as to whether medical monitoring costs are recoverable in a lawsuit (and if so, whether an actual injury must first be alleged, or if the damages can be awarded to try to prevent injury from occurring), there are an increasing number of lawsuits nationwide that are pushing the envelope to try to get otherwise reluctant courts to award medical monitoring damages for PFAS cases. As state statutes and court decisions naturally do not remain stagnant, both the legislative and judicial branches of state governments could be vehicles for plaintiffs’ counsel looking to effectuate change with respect to medical monitoring laws.

Vermont PFAS Legislation

On Friday, April 15, 2022, the Vermont legislature sent a bill to the governor’s desk for signature, which would give citizens the right to file lawsuits against chemical companies for medical monitoring costs if the plaintiffs allege that they have been exposed to chemicals of concern, including PFAS. The bill, S. 113 (An Act Relating To Establishing a Cause of Action For Medical Monitoring Expenses), has previously been passed in similar form by the Vermont legislature, only to see the bill rejected by the governor. This time, due largely to the Saint-Gobain litigation described above, the governor’s office has stated that he will sign the bill into law.

In the absence of the bill, Vermonters who believe that they were exposed to chemicals of concern are left to file a lawsuit in court seeking medical monitoring damages. These lawsuits can take several years to resolve and can be costly to litigate. The Vermont bill, the first of its kind in the nation, would allow citizens to avoid the pitfalls of litigation and have an automatic ability to obtain medical monitoring relief.

Conclusion

Of concern to many companies is the fact that some proponents of medical monitoring damages argue that relatively little must be alleged or proven in order to obtain monitoring cost damages. With respect to PFAS, which are seen as ubiquitous and difficult to remove from the environment, the limited proof that may need to offered may be as simple as proving that PFAS are present in the drinking water or soil of the class of citizens that brought the lawsuit. Many companies will be in a position whereby they need to determine the financial feasibility of being able to fund a medical monitoring settlement as opposed to defend the allegations brought in the lawsuit.