Tuesday, January 23, 2018

Hoosick Falls Village Board

January 12, 2018 by · Leave a Comment 

Pair Of PFOA Lawsuits Launched

By Alex Brooks

At its January 9 meeting, the Village of Hoosick Falls Board of Trustees authorized commencement of litigation on two related matters having to do with PFOA contamination of the Village. The Board authorized its environmental attorney David Engel and his firm, Nolan & Heller, to commence an action against Saint-Gobain and Honeywell on behalf of the Village. The immediate cause of the action is to get the two companies to pay the Village’s expenses so far due to PFOA contamination, but once an action is commenced, it will have to address the entire damages to the Village and its water system caused by the PFOA contamination, which is a much bigger issue.

The Board also authorized its attorney Andrew Gilchrist and his firm, Tuczinski, Gilchrist, Cavalier & Tingley, P.C, to commence litigation against the law firm of FitzGerald Morris Baker Firth, P.C. to dispute the billing they have submitted for their legal fees and for their subcontractors for communications, Behan Communications.

The two lawsuits are related, since one of the biggest costs the Village is trying to get Honeywell and Saint-Gobain to pay is the FitzGerald Morris bill. Gilchrist and Engel have worked together extensively on previous matters, and they pledged to work together on these two matters.

The Village’s environmental attorney David Engel said he has been trying to work something out with Honeywell and Saint-Gobain to cover the Village’s costs up to this point from the PFOA contamination ever since he was hired by the Village in mid-June of 2017. He said the companies are not willing to pay very much, and they expect to get a complete release from the Village.

The Consent Order signed by the two companies with NYSDEC requires them to pay the Village’s costs related to the PFOA crisis, and it is in trying to enforce this agreement that the Village has run into trouble. Engel said, “As I read the Consent Order, there is nothing in there that expects the Village to give a release in order to have their costs reimbursed.”

Engel also said the language about reimbursing the Village’s costs in the Consent Order is “not notable for its clarity.” He said the Consent Order helps the Village in its quest for reimbursement of PFOA costs, “but it doesn’t help a lot.”

He said somewhere early in the process the Companies introduced the idea of having the Village give a fairly comprehensive release in exchange for having its interim costs reimbursed, and even though he considers such an exchange totally inappropriate, the release had been part of the discussion for such a long time by the time he came into the discussions that he couldn’t get the companies to drop it.

Engel said having the Village give a full release would be premature. A full release would mean that whatever the companies are paying is to cover all the damages sustained by the Village from the PFOA contamination. Since the full extent of the damages is not known yet, it is hard to come up with a figure for what adequate compensation for those damages would be. He said we know a lot more about the extent of the damages now than we did a year ago. Giving a release a year ago would have been inappropriate since the full extent of the contamination and its impact was not known, and such a release “is still not appropriate” because the investigation into the nature and extent of the contamination is not complete. Engel said if the Village were to offer a full release it would have to take into account the uncertainty about what the future costs and yet-to-be-documented damages from the PFOA contamination might be.

Engel feels that Saint-Gobain and Honeywell should reimburse the Village’s interim costs immediately and without getting a release of liability, and a comprehensive settlement between the two companies and the Village should be concluded after a comprehensive investigation of the nature and extent of the contamination has been completed. But currently there is no leverage to get the two companies to accept this point of view, and they feel free to just say no to Engel’s demands. He feels the only way to put pressure on them is to commence litigation.

He said the complaint is ready to file, and could be filed tomorrow. But he expects to have further talks with the two companies over the next few weeks, hoping that the imminence of litigation will move the companies closer to an agreement that the Village can live with. But if there is no movement, he will commence the action.

Trustee Kevin O’Malley said, “I’m still hoping for a settlement.”

FitzGerald Morris Bill

Mayor Allen said FitzGerald Morris has hired counsel to sue the Village to force payment of their bill. A “Notice of Claim” was filed on November 20, 2017 signaling their intention to commence an action against the Village of Hoosick Falls to compel payment of their bills in the amount of $582,872.21 plus interest and costs. About $462,000 of that sum was their own billings, and about $121,000 of it was for the services of Behan Communications.

Village Attorney Andrew Gilchrist said Village Trustees have reviewed the invoices, as has staff from his office and David Engel’s office, and he said “We do have some concern about these invoices.” The Village Board feels that the billing was questionable in any case and especially so in light of the fact that it did not lead to an acceptable settlement with Honeywell and Saint-Gobain, which was the objective. Because of that they have apparently asked FitzGerald Morris to discount the bill to some extent. Gilchrist will not discuss whether FitzGerald Morris offered a discount or not, but if they did it was not big enough to satisfy the Village Trustees.

Gilchrist said, “We have pursued good faith efforts to resolve this right through the end of 2017.” But apparently such attempts to find a compromise have broken down.

He said, “The Village cannot avoid litigation.” He meant that if the Village does not pay the bill in full, it will be sued and be involved in litigation whether or not it wants to be.

Gilchrist said, “We will continue to try to resolve this matter.” He said there will be many opportunities along the way to reach an accommodation, and the Village still seeks to make some kind of compromise.

He said filing the complaint and arguing the case initially in court will not cost a great deal, but once litigation gets going, the costs of discovery and preparing for a trial could lead to very substantial legal costs. Everybody seems to be hoping that a deal can be reached before it gets to that point, but once an adversarial proceeding gets started, it often gets harder to resolve.

The Village Trustees were unhappy about getting into not one but two legal battles. Trustee Downing said, “This is a very difficult decision for me. I hate to burden the taxpayers.” Other trustees echoed his sentiments. Trustee Bushner said he is angry that the Village has had to resort to litigation to defend its interests. But in the end, the Trustees voted unanimously in favor of commencing litigation in both matters.

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