In re Methyl Tertiary Butyl Ether (Mtbe) Products
| Decision Date | 10 October 2006 |
| Docket Number | No. M 21-88.,No. 1:00-1898.,No. MDL 1358(SAS).,1:00-1898.,MDL 1358(SAS).,M 21-88. |
| Citation | 458 F.Supp.2d 149 |
| Parties | In re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION, This document relates to: United Water New York, Inc. v. Amerada Hess Corp., et al., 04-Civ-2389, Suffolk County & Suffolk County Water Authority v. Amerada Hess Corp., et al., 04-Civ-5424, City of New York v. Amerada Hess Corp., et al., 04-Civ-3417, Orange County Water District v. Unocal Corp., et al., 04-Civ-4968. |
| Court | U.S. District Court — Southern District of New York |
Michael Axline, Tracy O'Reilly, Miller, Axline & Sawyer, Sacramento, CA, for Orange County Water District.
Robin Greenwald, Robert Gordon, C. Sanders McNew, Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs.
Peter John Sacripanti, James A. Pardo, Stephen J. Riccardulli, McDermott, Will & Emery LLP, New York, NY, for Defendants.
1. INTRODUCTION
In this consolidated multi-district litigation ("MDL"), plaintiffs seek relief from contamination, or threatened contamination, of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol ("TBA"), which is a product that is formed by the natural degradation of MTBE in water. The parties have already engaged in extensive motion practice, and familiarity with the Court's previous opinions is assumed.1 The facts underlying this case are comprehensively set out in those opinions.2
Defendants now move for summary judgement on all claims in the three captioned New York actions for lack of standing.3 Additionally, defendants move for summary judgment on Orange County Water District's ("OCWD") claims relating to MTBE contamination below the Secondary MCL.4 Defendants argue that the alleged MTBE contamination has not impaired any of plaintiffs' legally protected interests and therefore plaintiffs have not suffered a cognizable "injury-in-fact." Accordingly, defendants argue, plaintiffs lack Article III standing and their claims must be dismissed. For the reasons discussed below, defendants' motions are denied.
II. APPLICABLE LAW
A. Summary Judgement
Summary judgment is only appropriate where the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."5 An issue of fact is genuine if "`the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'"6 while a fact will be deemed material where it "`might affect the outcome of the suit under the governing law.'"7
The moving party bears this burden of demonstrating that there exists no genuine issue of material fact.8 In turn, to defeat a motion for summary judgment, the nonmoving party must raise a genuine issue of material fact that does "not rely on conclusory allegations or unsubstantiated speculation." 9
To do so, it must do more than show that there is "`some metaphysical doubt as to the material facts.'"10 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor.11
The Constitution of the United States expressly limits the federal judicial power to certain enumerated "cases" or "controversies."12 The purpose of this limitation is, among other things, to ensure that matters brought before the federal courts are appropriate for adjudication.13
In articulating the doctrine of standing the Supreme Court has identified an "irreducible constitutional minimum" that must be shown by a party seeking redress.14 Although this minimum is comprised of three distinct elements,15 only one is at issue here: a plaintiff must have suffered an injury-in-fact, that is, the invasion of a "legally protected interest" in a manner that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical."16 The injury-infact requirement, along with the other elements of standing, serve to ensure that judicial resources are "devoted to those disputes in which the parties have a concrete stake," 17 and where their actual adversity will serve to sharpen and define the issues presented to the court for resolution.18
Because the requirements of standing are "not mere pleading requirements," but rather an "indispensable part" of a claim, each element must be supported "with the manner and degree of evidence required" at each successive stage of litigation.19 Accordingly, at the summary judgement stage, a plaintiff "can no longer rest on mere allegations [of injury], but must set forth specific facts ... which for purposes of the summary judgement motion will be taken to be true."20
III. DISCUSSION
In order to ensure public safety, state and federal regulatory authorities promulgate water quality standards—known as the "Maximum Contaminant Level" ("MCL")—which establish the highest amount of any contaminant that may be present in drinking water provided to the public.21 In New York, the New York State Department of Health ("NYSDOH") has set the current MCL for MTBE at 10 parts-per-billion ("ppb").22 In California, the California Department of Health Services ("DHS") has adopted two MCLs for MTBE: a Primary MCL of 13 ppb which is based on health related concerns, and a Secondary MCL of 5 ppb which is based on the taste and odor concerns associated with MTBE contamination.23
The essence of the dispute here is the extent to which an MCL defines what constitutes a legally cognizable harm. Defendants argue that New York water purveyor plaintiffs' "only legally protected interest is in the right to serve drinking water that complies with federal and state law."24 Likewise, defendants argue that OCWD's interests are limited to investigation and remediation of the groundwater aquifer in accordance with state water quality standards.25 That is, plaintiffs' protected interests—and the corollary of what conduct can injure those interests—are defined by the applicable MCL: only contamination in excess of the MCL can constitute an injury.26 Because the vast majority of the New York plaintiffs' wells (or in the case of OCWD, wells within its district) are not contaminated above the MCL, they have failed to demonstrate injury-in-fact as required by Article III.27 Plaintiffs counter that although their interest is in serving potable water or protecting groundwater, the scope of that interest is not limited by the MCL.28 Thus, the New York water purveyor plaintiffs argue that although they are themselves required to serve water that complies with the MCL, defendants' conduct resulting in contamination (even at levels below the MCL) is an invasion of their legally protected interest because of the resulting costs of monitoring and remediating contamination, as well as the MTBE-associated problems with taste and odor. Likewise, OCWD argues its interests are independent of the applicable MCL: 29
Defendants suggest that the law is "well-settled" that the presence of contaminants at levels below the applicable MCL cannot constitute an injury-in-fact.30 However, an examination of the relevant caselaw reveals more uncertain terrain. Ultimately, nothing in those decisions (or others reviewed by this Court) compels a holding that the applicable MCL establishes a bright-line rule defining the scope of plaintiffs' protected interests or what legally constitutes an injury.
A few courts have held—as defendants here urge this Court—that contamination below the applicable MCL cannot give rise to a legally cognizable injury. These decisions, however, are generally unpersuasive as they are either factually dissimilar or provide little analysis of the underlying standing inquiry.
For example, both Adams v. A.J. Ballard, Jr. Tire & Oil Co.,31 and Brooks v. E.I. Du Pont De Nemours & Co.,32 involve individual, private well owners who (unlike plaintiffs here) did not have the same statutory duty to protect or remediate groundwater. The question of whether an individual, private well owner has been injured by contamination below the MCL is a substantially different question than that presented here. Indeed, in Adams, the court found it "significant" that "the statutory scheme requires remediation to achieve minimum standards [i.e., compliance with the MCL]."33 The court went on to hold that the plaintiffs did not have standing where the MCL had not been exceeded because such contamination "do[es] not create a threat to human health or render the groundwater unsuitable for its intended purpose."34 By contrast, plaintiffs here have a duty to take action—be it testing, monitoring, or treating contaminated wells—before that contamination reaches the applicable MCL.35 Thus, plaintiffs' protected interests may be interfered with whenever contamination affects the quality of the water from which they supply the public, or in the case of OCWD, the groundwater it is statutorily tasked with protecting.36
Defendants also place heavy reliance on Iberville Parish Waterworks District No. 3 v. Novartis Crop Protection, Inc.,37 involving plaintiffs similar to the New York water purveyors, where the court held that because contamination levels had not exceeded the applicable MCL "it cannot be said that [plaintiffs have] suffered any actual invasion of a legally protected interest." 38
A close reading of Iberville, however, reveals that the court's decision was influenced, at least in part, by the fact that little, if any, of the treatment or remediation expense...
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...to PFOA concentrations below regulatory guidelines could nevertheless cause human diseases. See In re Methyl Tertiary Butyl Ether (MTBE) Prods., 458 F.Supp.2d 149, 158 (S.D.N.Y.2006) (concluding that while a regulatory level "may serve as a convenient guidepost in determining that a particu......
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In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.
...public [to provide clean water] becomes more costly because of a defendant's conduct.” 756 F.Supp.2d at 1007 (expressing “agree[ment]” with MTBE IV ). As the City of Greenville court aptly explained, “it seems an extremely bad rule to require a public water supplier to provide overly contam......
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...has occurred, the MCL does not set a bar below which an injury cannot have occurred ( see In re Methyl Tertiary Butyl Ether [MTBE] Prods. Liab. Litig., 458 F.Supp.2d 149, 154–158 [S.D.N.Y.] ). Similarly, the MCL does not define whether an injury has occurred, since contamination below that ......
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In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig.
...[to provide clean water] becomes more costly because of a defendant's conduct." 756 F. Supp. 2d at 1007 (expressing "agree[ment]" with MTBE IV). As the City of Greenville court aptly explained, "it seems an extremely bad rule to require a public water supplier to provide overly contaminated......