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Suffolk County Water Authority v. The Dow Chemical Co.

Supreme Court, Suffolk County

January 18, 2012

Suffolk County Water Authority, Plaintiff,
v.
The Dow Chemical Company, et al., Defendants.

Weitz & Luxenberg William A. Walsh, Esq.

King & Spaulding, LLP By Gennaro Filice, Esq., Richard Normington, Esq.

Fulbright & Jaworski, LLP By James H. Neale, Esq., Felice B. Galant, Esq.

Taylor M. Hicks, Esq., Hicks Thomas LLP

Emily Pines, J.S.C.

INTRODUCTION

Plaintiff Suffolk County Water Authority ("SCWA") owns and/or operates public drinking water systems and supplies drinking water to thousands of residents and businesses in Suffolk County, New York. It is the largest groundwater supplier in the nation and serves more than one million Suffolk County residents.

In this action, SCWA claims that the toxic chemical perchloroethylene ("PCE"), and its degradation products trichloroethylene ("TCE") and dichloroethylene ("DCE"), contaminate many of its drinking water supply wells. As a result of this contamination, SCWA claims that it has incurred and continues to incur costs and expenses for its investigation, treatment, remediation and monitoring of its wells. It asserts seven causes of action sounding in strict products liability based on defective design, strict products liability based on failure to warn, nuisance, trespass, and negligence against more than two dozen defendants including 1) numerous manufacturers, distributers and retailers of PCE and 2) numerous manufacturers, distributers and retailers of dry cleaning equipment intended for use with PCE. Currently before the Court is the joint motion by all Defendants pursuant to CPLR 3212 for summary judgment dismissing the complaint as to the majority of wells that SCWA asserts are contaminated, on statute of limitations grounds and/or lack of standing.

The parties do not dispute the following. In 1980, the United States Environmental Protection Agency ("EPA") issued a public notice of its intent to set a mandatory Maximum Contaminant Level ("MCL") for PCE and its degradation products (45 Fed. Reg. 77870 [Nov. 24, 1980]). The EPA noted a "possible health risk to the public" from the presence of such chemicals in public water systems (Id.). In 1985, the EPA issued a public notice of proposed rulemaking proposing MCLs for eight Volatile Organic Chemicals ("VOCs"), including TCE and DCE, and setting Recommended Maximum Contaminant Levels ("RMCLs") for each at zero (50 Fed. Reg. 46902, Tables 1 and 2 [Nov. 13, 1985]). In 1987, RMCLs were renamed Maximum Contaminant Level Goals ("MCLGs") (52 Fed. Reg. 12876 [Apr. 17, 1987]). In 1989, the EPA issued a public notice of a proposed rulemaking proposing an MCL for PCE of 5.0 parts per billion ("ppb") and an MCLG for PCE of zero (54 Fed. Reg. 22062, 22064 [May 22, 1989]). In 1991, the EPA issued a notice of final rule making setting an MCL for PCE of 5.0 ppb and an MCLG for PCE of zero (56 Fed. Reg. 3526, 3528 Table 2 [Jan. 30, 1991]). The New York State Department of Health imposes an MCL for PCE of 5.0 ppb.

SCWA relies on the sole source aquifer below the ground in Suffolk County and it conducts tests on a regular basis to discover and treat contaminants, such as PCE and TCE, in the drinking water. In accordance with its duty to provide safe drinking water to the public, SCWA has determined, based upon the MCLG of zero set by the EPA and its own studies, that the presence of any PCE or TCE in the public drinking water wells presents the possibility of adverse health effects.

In its complaint, SCWA alleges, among other things, that PCE was "routinely leaked or otherwise released into the environment", that there were "discharges, releases, leaks or disposals" of PCE "on lands in the vicinity of Plaintiff's Wells", "that the use, or mishandling, of PCE frequently resulted in the release, discharge or disposal of the chemical into sewer systems, dry wells or on property", "that each release or discharge would or could migrate through the environment, including ground water", and "that PCE and PCE products were routinely disposed of into the ground on an ordinary basis."

Based upon the Statements of Material Facts submitted by the parties in accordance with Rule 19-a of the Rules of the Commercial Division, the Court understands that after some initial discovery, SCWA originally identified 187 wells as contaminated and the subject of its damage claims. Of these 187 wells, SCWA has voluntarily abandoned its claims with respect to 28 wells, leaving 159 wells at issue. Of the remaining 159 wells, only 2 wells were discovered to have contamination at or above the MCL within the three year period prior to the commencement of this lawsuit; 6 wells were discovered to have some level of contamination within the same three year period; and SCWA initially discovered some level of contamination in 151 wells more than three years before this action was commenced in 2010.

Essentially, Defendants assert that SCWA's contamination claims with regard to all but a handful of wells are time-barred, pursuant to the applicable statute of limitations contained in CPLR 214- c, because SCWA discovered injurious levels of contamination more than three years before it commenced this action. In addition, Defendants argue that SCWA lacks standing to assert any claims with regard to any of the wells in which contamination has not been detected above the MCL because, it contends, no cognizable injury has, as yet, occurred.

SCWA opposes the motion contending, among other things, that it suffered injury to its wells when it detected PCE and/or TCE at any level, not just at levels above the MCL. SCWA claims that it took corrective action on wells prior to detecting contamination at levels in excess of the MCL, including increased monitoring, remediation measures and taking certain wells out of service, which placed increased burdens on the remaining wells. SCWA also argues that CPLR 214(4) is the applicable statute of limitations, as opposed to CPLR 214-c, and that the continuing tort doctrine keeps its claims with regard to 159 of the wells at issue alive. SCWA alternatively contends that even if CPLR 214-c is applicable, the "two ...


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