Talbert v. Am. Water Works Co.
| Decision Date | 07 May 2021 |
| Docket Number | Civil No. 2:19-cv-05010-JMG |
| Citation | 538 F.Supp.3d 471 |
| Parties | Eric H. TALBERT and Jonathan Burdzy, on behalf of themselves and other similarly situated persons, Plaintiffs, v. AMERICAN WATER WORKS COMPANY, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Theodor A. Swansen, Taswansen LLC, Cherry Hill, NJ, for Plaintiffs.
Peter Michael Ryan, Haryle Kaldis, Cozen O'Connor, Philadelphia, PA, for Defendants.
Plaintiff Jonathan Burdzy, a customer of New Jersey American Water Company (NJAWC), discovered contaminants in the water supply of his New Jersey home. So too did Plaintiff Eric Talbert, a Pennsylvania resident and customer of Pennsylvania-American Water Company (PAWC). Both now bring claims on behalf of themselves and a putative nationwide class against NJAWC, PAWC, the holding company, American Water Works Company, Inc. (AWWC), and its Tennessee subsidiary, Tennessee American Water Company (TAWC). Talbert also brings claims against all entities because of a house flood that he suffered at the hands of a "water hammer"—a surge in water pressure that can occur when, for example, a fire department shuts down a nearby hydrant too quickly.
Before the Court are Defendants’ motions to dismiss. Defendants seek dismissal on several grounds, most of which the Court finds persuasive. For the reasons explained below, we find that: (1) Plaintiffs lack standing to sue TAWC; (2) Plaintiffs also lack standing to represent a nationwide class; (3) we lack personal jurisdiction over NJAWC and AWWC; (4) the primary jurisdiction doctrine warrants abstention on Count III; (5) Talbert's "water hammer" claims are properly before the Pennsylvania Public Utility Commission (PUC) in the first instance; and (6) Counts I and II do not set forth cognizable claims. Accordingly, Defendants’ motions are granted in part and denied in part.
Given the complexity of this case, we first summarize Plaintiffs’ factual allegations before describing the federal and state regulatory schemes at issue.
Plaintiff Eric Talbert has been a PAWC customer since at least 2017. Am. Compl. ¶¶ 1, 71, ECF No. 16 [hereinafter "Am. Compl."]. PAWC manages the Royersford water distribution system, which supplies Talbert's home with tap water. Id. ¶¶ 11, 15.
On October 25, 2017, a "water hammer" caused Talbert's house to flood. Id. ¶ 71. "Water flooded down into the ceiling of the basement and garage," and Talbert sought recourse from PAWC. Id. After PAWC's insurer, Travelers’ Insurance, performed an investigation, it determined that the flood Id. ¶ 72.
Believing that "PAWC failed to protect" his home from the flood, Talbert decided to collect a sample of his tap water after PAWC's next scheduled flushing of the Royersford system. Id. ¶¶ 15, 73. About one week after PAWC flushed the system in April 2018, Talbert sent a sample of his tap water to an independent lab for testing. Id. ¶ 15. To Talbert's surprise, his tap water contained 2 parts per billion (ppb) of tetrachloroethylene;2 0.013 parts per million (ppm) of nickel; and 0.32 milligrams per liter (mg/L) of iron.3 Id. ¶¶ 16, 31, 34.
The test results were particularly unexpected because they conflicted with a report that appeared on AWWC's website. Id. ¶ 11. The report, which provided testing results for the Royersford system for the 2018 calendar year (the "2018 Royersford Water Quality Report"), claimed to show "what substances were detected in your drinking water during 2018." Id. ¶ 12. While it noted that the Royersford system contained up to 0.14 mg/L of iron,4 absent from the report were any mentions of tetrachloroethylene or nickel. Id. ¶¶ 17, 31, 33.
Upon the filing of this lawsuit, AWWC pulled the 2018 Royersford Water Quality Report from its website. Id. ¶ 23.
Plaintiff Jonathan Burdzy has been a NJAWC customer since at least 2019. Id. ¶¶ 2, 55. NJAWC manages the Western water distribution system, which supplies Burdzy's home with tap water. Id. ¶¶ 54–55.
In November 2019, Burdzy sent a sample of his tap water to an independent lab for testing. Id. ¶ 55. Burdzy's water contained 0.06 ppm of zinc; 0.06 ppm of boron; 24.29 ppm of sulfate; and 0.51 ppm of copper. Id. ¶¶ 56–60.
As with the Royersford system, AWWC's website reported contaminants found in the Western system during the 2019 calendar year (the "2019 Western System Water Quality Report"). Id. ¶¶ 11, 55. While it noted that the Western system contained 0.313 ppm of copper, absent from the report were any mentions of zinc, boron, or sulfate. Id. ¶¶ 56–60.
Before water reaches the tap, it must meet a series of regulatory standards promulgated by federal and state governments. At the federal level, Congress passed the landmark Safe Drinking Water Act (SDWA) in 1974, which 1 L. OF ENVTL. PROT. § 9:258 (2020).
The national primary drinking water regulations set limits—called maximum contaminant levels (MCLs)—and "nonenforceable health goals"—called maximum contaminant level goals (MCLGs)—for contaminants. See 40 C.F.R. § 141.2 (2019). The former are defined as the "maximum permissible level of a contaminant in water which is delivered to any user of a public water system." Id. The latter are defined as the "maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur, and which allows an adequate margin of safety." Id.
"Each community water system must provide to its customers an annual report" that details, among other things, the presence of contaminants in the system. Id. § 141.153(a). The data in these "Consumer Confidence Reports" (CCRs) is collected according to certain standards. See, e.g. , id. §§ 141.21–141.29. In surface water systems, for example, samples of organic chemicals (like tetrachloroethylene) can be collected "at each entry point to the distribution system after treatment." Id. § 141.24(f)(2). And when compliance with MCLs is determined annually, the CCR must report the "highest detected level [of the relevant contaminant] at any sampling point" within the system. Id. § 141.153(d)(4)(iv)(A).
The EPA has not provided MCLs or MCLGs for all of the contaminants identified by Talbert and Burdzy. As set forth in the table below, there is no MCL for nickel, iron, zinc, boron, or sulfate:5
Contaminant MCL MCLG Plaintiffs' Allegations
Tetrachloroethylene 0.005 ppm 0 ppm 0.002 ppm (Talbert's water)
Nickel N/A N/A 0.013 ppm (Talbert)
Iron N/A N/A6 0.267-0.32 ppm (Talbert)
Zinc N/A N/A7 0.06 ppm (Burdzy's water)
Boron N/A N/A 0.06 ppm (Burdzy)
Sulfate N/A N/A8 24.29 ppm (Burdzy)
Copper 1.3 ppm9 1.3 ppm 0.51 ppm (Burdzy)
[Editor's Note: The preceding image contains the reference for footnotes6 ,7 ,8 ,9 ].
States play an indispensable role in achieving the SDWA's mission. Indeed, the SDWA "established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program." MARY TIEMANN , CONG. RSCH. SERV. , RL31243, SAFE DRINKING WATER ACT (SDWA): A SUMMARY OF THE ACT AND ITS MAJOR REQUIREMENTS 1 (2017).
Pennsylvania and New Jersey are two such states. Pennsylvania achieved the "sole authority to implement the Federal Safe Drinking Water Act within its jurisdiction" when it passed the Pennsylvania Safe Drinking Water Act in 1984. Pickford v. Pub. Util. Comm'n , 4 A.3d 707, 710 n.4 (Pa. Commw. Ct. 2010) ; see also 35 PA. STAT. AND CONS. STAT. ANN. § 721.2(a)(3) (West 2021) ("It is in the public interest for the Commonwealth to assume primary enforcement responsibility under the Federal Safe Drinking Water Act."). "[T]he task of preserving water quality and monitoring for contaminants is within the authority" of the Pennsylvania Department of Environmental Protection (PADEP). Polites v. Pa. Pub. Util. Comm'n , 928 A.2d 388, 391 (Pa. Commw. Ct. 2007) ; see also 35 PA. STAT. AND CONS. STAT. ANN. § 721.5 (West 2021). Likewise, New Jersey "adopted the national primary drinking water regulations," and the New Jersey Department of Environmental Protection (NJDEP) "enforce[s] the drinking water requirements." N.J. Dep't of Env't Prot. v. Cheyenne Corp. , No. A-4547-15T4, 2017 WL 4848382, at *4 (N.J. Super. Ct. App. Div. Oct. 27, 2017) ; see also N.J. STAT. ANN. § 58:12A-4 (West 2021).10
a. Pennsylvania Public Utility Commission
Talbert's claims (, Counts IV–V) also implicate the Pennsylvania Public Utility Commission (PUC). In Pennsylvania, "[e]very public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities." 66 PA. STAT. AND CONS. STAT. ANN. § 1501 (West 2021). "Such service and facilities shall be in conformity with the regulations and orders of the [PUC]," id. , which " ‘has long been recognized as the appropriate forum for the adjudication of issues involving the reasonableness, adequacy and sufficiency of public utility services.’ " MCI Telecomms. Corp. v. Teleconcepts, Inc. , 71 F.3d 1086, 1103 (3d Cir. 1995) (quoting Behrend v. Bell Tel. Co. of Pa. , 431 Pa. 63, 243 A.2d 346, 347 (1968) ). Public utilities like PAWC must file...
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