United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge.
action is one of several in this District stemming from the
contamination of groundwater with perfluorooctanoic acid
(“PFOA”) in the Village of Hoosick Falls, New
York. Dkt. No. 1 (“Complaint”) ¶¶ 1-2.
In his Complaint, plaintiff James Donavan alleges that
defendants Saint-Gobain Performance Plastics Corp. and
Honeywell International Inc. contaminated the Village's
groundwater by discharging PFOA from one or more
manufacturing facilities they operated within the Village.
E.g., id. ¶¶ 1-7. As a result of
this contamination, Donavan claims that the drinking water of
Hoosick Falls became nonpotable, causing a “significant
decline in value” of the home he owns with his wife.
Id. ¶ 145. Additionally, he alleges that
consumption of PFOA-contaminated water has caused him to
suffer serious health problems. E.g., id.
before the Court is Defendants' motion to dismiss
Donavan's property damage claims for failure to state a
claim. Dkt. Nos. 22 (“Motion”), 22-1
(“Memorandum”). Donovan opposes the Motion, and
has moved for leave to amend his Complaint if it is
dismissed. Dkt. No. 28 (“Opposition”). For the
reasons that follow, both motions are granted.
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. Bryant v.
N.Y. State Educ. Dep't, 692 F.3d 202, 210 (2d Cir.
a man-made chemical that was originally manufactured by the
3M Company. Compl. ¶¶ 19-20. It has been used
“to make fabrics water and stain resistant, ” and
“was a key component in the manufacture of
Teflon” and “the production of Gore-Tex.”
Id. ¶¶ 23-25.
to Donavan, “[t]here are a number of health risks
associated with chronic exposure to PFOA, and these risks are
present even when PFOA is ingested at, seemingly, very low
levels.” Id. ¶ 28. In fact, “PFOA
has the potential to be more of a health concern because it
can stay in the environment and in the human body for long
periods of time.” Id. ¶ 29. Donavan
alleges that PFOA exposure is “associated with
increased risk of testicular cancer, kidney cancer, thyroid
disease, high cholesterol, ulcerative colitis, and
pregnancy-induced hypertension.” Id. ¶
2016, the U.S. Environmental Protection Agency
(“EPA”) issued a health advisory for drinking
water with levels of PFOA over seventy parts per trillion (or
ppt). Id. ¶ 37. The health advisory level (70
ppt) suggests that individuals should avoid ingesting
drinking-water with greater levels of PFOA and is based on
the EPA's “review of the best available
peer-reviewed studies at the time.” Id.
“The EPA noted that peer-reviewed studies indicate that
‘exposure to PFOA over certain levels may result in
adverse health effects, including developmental effects to
fetuses during pregnancy or to breastfed infants (e.g., low
birth weight, accelerated puberty, skeletal variations),
cancer (e.g., testicular, kidney), liver effects (e.g.,
tissue damage), immune effects (e.g., antibody production and
immunity), thyroid effects and other effects (e.g.,
cholesterol changes).'” Id. ¶ 38.
The Contamination of Hoosick Falls
Falls is a village of approximately 3, 500 residents.
Id. ¶ 61. Since around 1955, manufacturing
facilities in and around the Village used PFOA. Id.
¶ 45. Donavan alleges that a factory at 14 McCaffrey
Street is the primary source of Hoosick Falls's PFOA
contamination. Id. ¶¶ 4, 39. In 1986, the
McCaffrey Street facility came to be owned by AlliedSignal,
which later adopted Honeywell's name after a merger.
Id. ¶¶ 14, 41. Saint-Gobain acquired the
facility in 1999, and owns it to this day. Id.
manufactured water- and stain-resistant fabric at the
McCaffrey Street site, applying a PFOA solution to the fabric
in large trays. Id. ¶¶ 43-47.
Defendants' employees recovered most of this solution at
the end of each shift. Id. ¶ 47. However,
employees also washed the trays and poured the resulting
discharge down floor drains in the facility. Id.
¶ 48. As a result of this practice, PFOA flowed into the
soil and ultimately the aquifer. Id.
and Honeywell also used solid PFOA to manufacture
Teflon-coated materials and other products in large ovens at
the McCaffrey Street site. Id. ¶¶ 51-55.
In connection with this activity, Defendants' employees
again discharged PFOA down storm drains, causing it to
migrate into the soil and aquifer. Id. ¶ 58.
Donavan also alleges that Defendants “discharged PFOA
into the environment in other ways.” Id.
95% of Hoosick Falls residents receive drinking water from
the Village's municipal water system, which gathers its
water from production wells, one of which is approximately
500 yards from the McCaffrey site. Id. ¶¶
63-66. Other residents receive drinking water from private
wells. Id. ¶ 72.
2015, the Village conducted several tests showing high levels
of PFOA in its municipal wells. Id. ¶¶
68-71. These tests showed PFOA concentrations ranging from
151 to 662 ppt. Id. ¶ 71. As noted above, the
EPA has advised against using water supplies with
concentrations greater than 70 ppt. Id. ¶ 37.
Tests of private wells revealed PFOA concentrations of some
private wells as high as 252 ppt. Id. ¶ 73.
November 2015, the EPA recommended that Hoosick Falls
residents use an alternative water source rather than drink
or cook with contaminated groundwater. Id. ¶
74. It repeated this recommendation in December 2015.
Id. ¶ 76. Shortly thereafter, Saint-Gobain
began to provide free bottled water to Village residents and
agreed to fund the installation of a filter system on the
municipal supply. Id. ¶ 77.
January 14, 2016, the New York Department of Environmental
Conservation (“DEC”) requested that the EPA
investigate the origin of the contamination and add Hoosick
Falls to the National Priorities List under the federal
Superfund program. Id. ¶¶ 78-79. On
January 27, 2016, Governor Andrew Cuomo directed state
agencies to designate the McCaffrey Street facility as a
state Superfund site, and announced that the State was
classifying PFOA as a hazardous substance. Id.
¶¶ 82-83. The next day, the EPA recommended that
all homeowners with private wells drink bottled water if
their wells had PFOA ...