Barnstable Cnty. v. 3M Co.
| Decision Date | 18 December 2017 |
| Docket Number | Civil Action No. 17-40002 |
| Parties | BARNSTABLE COUNTY, Plaintiff, v. 3M COMPANY, CHEMGUARD, INC., BUCKEYE FIRE EQUIPMENT COMPANY, UNITED TECHNOLOGIES CORPORATION, NATIONAL FOAM, INC., JOHN DOE DEFENDANTS 1-49 AND TYCO FIRE PRODUCTS LP, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff Barnstable County has filed this lawsuit against 3M Company ("3M"), Chemguard, Inc. ("Chemguard"), Buckeye Fire Equipment Company ("Buckeye"), United Technologies Corporation ("United Tech"), National Foam, Inc. ("National Foam"), Tyco Fire Products LP ("Tyco") and John Doe Defendants 1-49 (collectively, "Defendants"). D. 1. Barnstable County alleges that Defendants manufactured and sold a firefighting agent that contained chemicals that present risks to human health and the environment, which led to a breach of the implied warranty of merchantability and constituted negligence. Id. ¶¶ 1-6, 60-74. Plaintiffs also seek indemnification and contribution for costs and damages incurred as well as a declaratory judgment. Id. ¶¶ 75-93. 3M, Chemguard, Tyco, United Tech and Buckeye have filed motions to dismiss. D. 42; D. 48; D. 54; D. 57. National Foam has filed a motion for joinder in Tyco and Chemguard's motion to dismiss. D. 52; D. 83. Tyco, Chemguard and United Tech separately request this Court to take judicial notice of various documents. D. 50; D. 56. For the reasons stated below, the Court GRANTS in part and DENIES in part Tyco and Chemguard's request for judicial notice, D. 50, and GRANTS in part and DENIES in part United Tech's request for judicial notice, D. 56. For the reasons below, the Court GRANTS IN PART 3M's motion to dismiss, D. 42, GRANTS IN PART Tyco and Chemguard's motion to dismiss, D. 48, GRANTS IN PART United Tech's motion to dismiss, D. 54, and GRANTS IN PART Buckeye's motion to dismiss, D. 57.
A defendant can move to dismiss an action based upon a lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). "This rule is a large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction" including those challenges "grounded in considerations of ripeness, mootness, sovereign immunity, and the existence of federal question jurisdiction." Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001) (collecting cases). When considering a motion to dismiss for lack of subject matter jurisdiction, "the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff." Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). The Court, however, may also look beyond the pleadings to any evidentiary materials submitted by the parties to determine whether it has jurisdiction. Martínez-Rivera v. Puerto Rico, 812 F.3d 69, 74 (1st Cir. 2016).
The Court will grant a motion to dismiss pursuant to Rule 12(b)(6) if the complaint fails to plead sufficient facts that "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). At this stage, the Court must "assume the truth of 'the raw facts' set forth in the complaint." In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 750 (1st Cir. 2016) (quoting In re Bos. Sci. Corp. Sec. Litig., 686 F.3d 21, 27 (1st Cir. 2012)). The Court, however, need not consider "naked assertion[s] devoid of further factual enhancement." San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012) (quoting Twombly, 550 U.S. at 557)). Similarly, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)) (internal quotation mark omitted).
"When a court is confronted with motions to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide the former before broaching the latter" because "if the court lacks subject matter jurisdiction, assessment of the merits becomes a matter of purely academic interest." Déniz v. Municipality of Guaynabo, 285 F.3d 142, 149-50 (1st Cir. 2002) .
Unless otherwise noted, the following summary is based upon the factual allegations in the complaint, D. 1, and are accepted as true for the consideration of the Defendants' motions to dismiss.
Aqueous film forming foam ("AFFF") is a firefighting agent that was developed in the 1960s as an alternative to the existing protein-based firefighting foams. Id. ¶ 29. AFFF containsa class of chemicals known as perfluoroalkyl substances ("PFAS"). Id. ¶¶ 16-17. Specifically, the AFFF manufactured by Defendants contained fluorinated surfacants perfluorooctanesulfonic acid ("PFOS") and perfluooctanoic acid ("PFOA") or its precursors. Id. ¶ 3. Both PFOS and PFOA are chemicals that are resistant to metabolic and environmental degradation, such that they persist in the environment and the human body and have the potential to bioaccumulate and biomagnify in wildlife. Id. ¶¶ 19-20. In a similar vein, PFOS and PFOA degrade very slowly, if at all, in groundwater and can migrate from soil to groundwater. Id. ¶ 22. Typical municipal water treatment plants are unable to filter or treat PFOS and PFOA. Id. ¶ 24.
A number of health risks result when humans are exposed to PFOS and PFOA. Id. ¶ 26. Furthermore, there is at least some evidence that suggests that PFOS and PFOA are possibly carcinogenic to humans. Id. ¶¶ 27-28.
Enoch Cobb ("Cobb") was the owner of approximately one hundred acres of land (the "Property") in and around the Town of Barnstable (the "Town"). Id. ¶ 33. At his death, Cobb bequeathed the Property to the Town through a trust. Id. On or around June 1, 1956, the Town leased the Property to Barnstable County on the condition that the Property be used for a firing training school, which was to provide training in combatting, controlling and extinguishing fires to the fire departments and districts in Barnstable County. Id. ¶¶ 34-35. The Town entered into two more similar leases with Barnstable County, one of which again restricted the use of the land to fire training and the second of which included a condition that the land only be used for police and fire training purposes. Id. ¶¶ 36-37. Finally, in May of 1983, Barnstable County purchased the Property from the trust. Id. ¶¶ 38-39.
Since 1956, firefighters, fire brigades, private industry, fire departments and fire districts have used the Property to complete fire training, including practice of firefighting techniques with the use of live fires and the application of AFFF—a firefighting agent used for fighting Class B fires. Id. ¶¶ 2, 41. Trainings at the Property included the use of AFFF until about 2009. Id. ¶ 41.
In the 1970s, Barnstable Water Company installed public water supply wells ("the Wells") that were proximate to and downgradient of the Property. Id. ¶ 45. The Wells' water provided Town residents with drinking water from the 1970s until 2005. Id. ¶ 46. In May 2005, the Town acquired the Barnstable Water Company and the Wells, and thereafter contracted with the Connecticut Water Company to continue water management and operations under the Town's direction. Id. ¶¶ 47-48. Currently, the Town's water system consists of twelve well pumping stations and provides drinking water to approximately 18,000 residents. Id. ¶ 49.
In November 2013, groundwater samples were collected from the Property and the analysis confirmed that PFOS was present in the Property's groundwater. Id. ¶ 54. Groundwater samples taken downgradient of the Property in June of 2014 also revealed the presence of PFOS. Id. In July 2015, the County activated a pump and treat system to capture a defined high concentration level of PFOS in the groundwater. Id. ¶ 55. In January 2016, the Town notified the County that its groundwater drinking water supply was contaminated with PFOS. Id. ¶ 50. The Town asserts that this contamination resulted from the use of AFFF by the County at the Property. Id.
After alerting the County to the PFOS water contamination, the Town filed a lawsuit against the County, seeking costs and damages in excess of five million dollars. Id. ¶¶ 50-51. The litigation is currently pending in Barnstable Superior Court. Id. ¶ 51.
In August 2016, the Massachusetts Department of Environmental Protection ("DEP") issued a Notice of Responsibility to the County, requiring the County to prepare an Immediate Response Action ("IRA") Plan to perform immediate actions in response to the release of PFOS to, at and from the Property. Id. ¶ 56. Accordingly, the County submitted an IRA Plan to the DEP, which included action items of undertaking further investigation and assessment as well as evaluating long-term and emergency remedial actions to be taken. Id. ¶ 57. In addition, the County has committed substantial funds to investigate the sources of the alleged PFOS and PFOA contamination, treat groundwater emanating from the Property and extract and properly treat and/or dispose of all contaminated soils. Id. ¶ 58. The County continues to investigate and take remedial activities resulting from the presence of PFOS, PFOA and other PFAS chemicals in the soil and groundwater. Id. ¶ 59.
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