Baker v. Saint-Gobain Performance Plastics Corp., 1:16–CV–0917 (LEK/DJS)

• Citation: 232 F.Supp.3d 233
• Decision Date: 06 February 2017
• Docket Number: 1:16–CV–0917 (LEK/DJS)
• Parties: Michele BAKER, et al., Plaintiffs, v. SAINT–GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York

232 F.Supp.3d 233

Michele BAKER, et al., Plaintiffs,

v.SAINT–GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants.

1:16–CV–0917 (LEK/DJS)

United States District Court, N.D. New York.

Signed February 6, 2017

Ellen Relkin, James J. Bilsborrow, Paul J. Pennock, Robin L. Greenwald, William A. Walsh, Weitz, Luxenberg Law Firm, Eric T. Chaffin, Chaffin Luhana LLP, New York, NY, John K. Powers, Laura M. Jordan, Powers & Santola, LLP, Albany, NY, Esther Berezofsky, Williams Cuker Berezofsky LLC, Cherry Hill, NJ, Gerald J. Williams, Michael J. Quirk, Williams Cuker Berezofsky LLC—PA Office, Philadelphia, PA, Hadley L. Matarazzo, Stephen G. Schwarz, Faraci, Lang Law Firm, Rochester, NY, for Plaintiffs.

Christopher V. Fenlon, Michael L. Koenig, Hinckley, Allen Law Firm—Albany Office, Dale A. Desnoyers, Patrick L. Kehoe, Gregory J. Allen, Allen, Desnoyers Law Firm, Albany, NY, Douglas E. Fleming, Mark S. Cheffo, Patrick D. Curran, Sheila L. Birnbaum, Lincoln D. Wilson, Quinn, Emanuel Law Firm—NYC Office, Anthony D. Boccanfuso, Tal R. Machnes, Arnold, Porter Law Firm—NY Office, New York, NY, Allyson Himelfarb, Elissa J. Preheim, Michael D. Daneker, Arnold, Porter Law Firm—DC Office, Washington, DC, for Defendants.

MEMORANDUM–DECISION AND ORDER

Lawrence E. Kahn, U.S. District Judge

I. INTRODUCTION

This case stems from the contamination of groundwater in the Village of Hoosick Falls with perfluorooctanoic acid, or PFOA. E.g. , Dkt. No. 9 ("Complaint") ¶ 1. While many suits concerning this contamination have been filed in this district, this case is a consolidated class action whose putative classes include all individual owners or renters of real property within the Village, as well as anyone who consumed water from Hoosick Falls and exhibits a heightened blood-serum level of PFOA. Id. ¶ 135.¹

In the Complaint, Plaintiffs allege that Defendants—Saint–Gobain Performance Plastics Corp and Honeywell International Inc.—were responsible for this contamination, which came from one or more manufacturing facilities they operated at various times within the Village. Id. ¶¶ 60–86. Because of this groundwater contamination, Plaintiffs claim that the drinking water of Hoosick Falls became nonpotable,² causing loss of property value and other damages. E.g. , id. ¶¶ 163–66. Additionally, the past consumption of contaminated water has caused PFOA to accumulate in Plaintiffs' blood serum and bodies. E.g. , id. ¶¶ 9, 127, 165–66.

Currently before the Court is Defendants' motion to dismiss for failure to state a claim, which raises several complex and relatively novel questions of state law concerning private claims for water contamination and for ingesting potentially harmful substances. Dkt. No. 13 ("Motion"); see also Dkt. Nos. 13–1 ("Memorandum"), 17 ("Opposition"), 23 ("Reply").³ For the following reasons, Defendants' Motion is granted in part and denied in part.

II. BACKGROUND

The following facts are taken from the allegations in the Complaint, which are assumed to be true when deciding a motion to dismiss for failure to state a claim. E.g. , Bryant v. N.Y. State Dept. of Educ. , 692 F.3d 202, 210 (2d Cir. 2012).

A. PFOA

"PFOA is a fluorinated organic chemical" originally manufactured by the 3M Company. Compl. ¶¶ 33, 35. Among other things, PFOA is used "to achieve water, oil, and grease repellency," and thus has been used to manufacture "carpets, clothing, fabric for furniture, paper packaging for food and other materials such as cookware that are resistant to water, grease or stains." Id. ¶¶ 37–38. Perhaps most notably, "PFOA was also a key component in the manufacturing of Teflon"—or PTFE—a material used as a nonstick coating and in several other applications. Id. ¶ 39; What Is Teflon? , Chemours, https://www.chemours.com/Teflon/en_US/products/safety/what_is_it.html (last accessed Jan. 19, 2017).

"PFOA is biologically and chemically stable in the environment," and can remain in soil and water for extended periods of time. Compl. ¶ 41. This is problematic, Plaintiffs allege, because of the toxic effects of exposure to PFOA. E.g. , id. ¶ 43. "PFOA is readily absorbed after ingestion," has a human biological half life of two to nine years, and causes health risks even at low levels of ingestion (less than one part per billion, or ppb). Id. ¶¶ 43–44. PFOA binds to serum albumin in the blood, id. ¶ 44, and nationwide blood concentrations average at 2.08 µg/L, id. ¶ 9.

Plaintiffs claim that "PFOA is associated with increased risk in humans" of various cancers

, along with several other conditions. Id. ¶ 45. "[T]he EPA Science Advisory Board stated that PFOA cancer data are consistent with guidelines suggesting exposure to the chemical is ‘likely to be carcinogenic to humans,’ " id. ¶ 46, and the Complaint also points to animal studies showing a connection with other cancers"not yet associated with human exposure," id. ¶ 45.

Plaintiffs cite no studies and make no allegations concerning the dose dependency of these conditions or the threshold levels of exposure associated with them, but do note that the U.S. Environmental Protection Agency ("EPA") recently issued both a health advisory for drinking water of seventy parts per trillion (or ppt)⁴ and a reference dose of 0.000002 mg/kg/day. Id. ¶¶ 49, 53. The health advisory level (70 ppt) suggests that drinking-water sources with greater levels of PFOA should undergo remediation efforts, while the reference dose represents a conservative estimate of the maximum continuous daily exposure likely to be without "an appreciable risk" of negative health effects. Id. ⁵ Following the EPA's actions concerning PFOA, several states have established similar health advisories and guidelines. Id. ¶¶ 50–52.

B. The Contamination of Hoosick Falls

The Village of Hoosick Falls is located in upstate New York near the Vermont border and has a population of approximately 3,500. Id. ¶ 55. Since as early as the late 1950s, PFOA has been used in manufacturing facilities in and around Hoosick Falls. Id. ¶ 60. One of these facilities—a small factory at 14 McCaffrey Street—appears to be the main source of the Village's PFOA contamination. Id. ¶ 61. Through various acquisitions, the McCaffrey Street site came to be owned by AlliedSignal in 1986, which later adopted Honeywell's name after a merger. Id. ¶¶ 62–64. In 1996, Honeywell sold the site to another company called Furon, but Saint–Gobain acquired Furon in 1999 and continues to own the facility to this day. Id. ¶¶ 65–67.

At the McCaffrey Street site, Saint–Gobain and Honeywell manufactured stain—and water-resistant fabric, applying a PFOA solution to the fabric in large trays. Id. ¶¶ 68–70. As the fabrics dried, some of the PFOA would vaporize and leave the site by air as particulate matter. Id. ¶ 71. Employees would also wash the trays and pour the resulting discharge down floor drains in the facility. Id. ¶ 72. This in turn would cause PFOA to flow into the soil and ultimately the aquifer. Id.

Saint–Gobain and Honeywell also used solid PFOA to manufacture Teflon-coated materials and other products in large ovens at the McCaffrey Street site. Id. ¶¶ 76–77. As part of the coating process, a sticky residue containing PFOA would adhere to internal tubing or "stacks" within the ovens, which would be cleaned on a rotating schedule. Id. ¶¶ 78–79. These stacks were cleaned in a large sink, the waste water from which was discharged down a drain, ultimately migrating into the soil and then the aquifer. Id. ¶ 80.

The Complaint identifies other sites in Hoosick Falls operated by one or both defendants at various times that may also have contributed to the PFOA contamination. Id. ¶¶ 81–84. Additionally, PFOA has been found in leachate emanating from the former municipal landfill, where Defendants allegedly sent waste containing PFOA. Id. ¶¶ 85, 108.

Approximately 95% of Hoosick Falls residents receive drinking water from the municipal water system, which in turn gathers its water from a well. Id. ¶¶ 57, 87. In 2007, a new well for the municipal system was constructed about five hundred yards from the McCaffrey Street site. Id. ¶¶ 87–88. Additionally, some residents of Hoosick Falls and the surrounding Town of Hoosick receive drinking water from private wells instead of the municipal supply. Id. ¶¶ 58–59.

From late 2014 to the middle of 2015, the Village conducted testing and received results showing high levels of PFOA in the municipal water system. Id. ¶¶ 89–92. These tests showed PFOA concentrations ranging from 151 to 662 ppt (as noted above, the EPA ultimately advised against using water supplies with concentrations greater than 70 ppt). Id. ¶¶ 53, 93. The Village also oversaw testing of certain private wells, and received results showing PFOA concentrations "significantly above any safe level." Id. ¶ 94.

Despite these test results, Village officials maintained that the water was safe to drink. Id. ¶ 95. In October 2015, the EPA Regional Administrator for New York learned of the test results, and in November, the EPA contacted the village and recommended the use of an alternative water source. Id. ¶¶ 96–97. Even then, the New York State Department of Health released a fact sheet the following month stating that "[h]eath effects are not expected to occur from normal use of the water," and "Village officials further minimized the potential risk of PFOA." Id. ¶¶ 98–99.

After learning of the Village's laissez-faire response, the EPA repeated its recommendation on December 17, 2015. Id. ¶ 100. Shortly thereafter, Saint–Gobain began to provide free bottled water to Village residents on the municipal water system, and agreed to fund the installation of a filter system on the municipal supply. Id. ¶ 102. After some debate with Town and Village residents, the state agreed to provide testing of private wells. Id. ¶¶ 105–07.

On January 27, 2016, Governor Cuomo and other state officials announced that the McCaffrey Street facility would be classified as a state superfund site, and that PFOA would be...