United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
action is one of several before the Court stemming from the
contamination of groundwater with perfluorooctanoic acid
(“PFOA”) in the Village of Hoosick Falls, New
York. Dkt. No. 59 (“Amended Complaint”) ¶
153. Plaintiffs Kenneth and Shannon Wickenden allege that
defendants Saint-Gobain Performance Plastics Corp. and
Honeywell International Inc. (together, the “McCaffrey
Site Defendants”) contaminated the Village's
groundwater and ambient air by discharging PFOA from a
facility they operated, which is located in the Village at 14
McCaffrey Street (“McCaffrey Site”). Id.
¶¶ 126, 136, 148-49. Plaintiffs also allege that,
from the 1950s through 2015, defendants 3M Co. and E.I.
DuPont deNemours and Company manufactured and sold PFOA and
PFOA-containing products to the McCaffrey Site Defendants,
were aware of numerous health and environmental risks
associated with PFOA, and failed to provide adequate warnings
regarding these risks. Id. ¶¶ 213-16.
According to Plaintiffs, 3M and DuPont's failure to
provide warnings related to PFOA, and the McCaffrey Site
Defendants' negligent discharge of PFOA from their
facility, led to the contamination of the Village's air
and water, causing Kenneth to develop kidney cancer and
Shannon to develop significant bioaccumulation of PFOA.
Id. ¶¶ 204, 209. Presently before the
Court are motions to dismiss the Amended Complaint filed by
DuPont, Dkt. No. 65 (“DuPont Motion”), the
McCaffrey Site Defendants, Dkt. No. 66 (“McCaffrey Site
Defendants' Motion”), and 3M, Dkt. No. 67
(“3M Motion”). For the reasons that follow,
Defendants' Motions are denied.
following facts are taken from the allegations in the Amended
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 human-made chemical that is used “to achieve water,
oil, and grease repellency” in “consumer
products, ” including cookware, fabrics, clothing, and
carpets. Am. Compl. ¶¶ 17, 21-22. PFOA is also used
in the process of making Teflon. Id. ¶ 23.
According to Plaintiffs, “[t]here are a number of
health risks associated with exposure to PFOA, and these
risks are present even when PFOA is ingested at, seemingly,
very low levels.” Id. ¶ 27. Studies
indicate that people exposed to PFOA have a heightened risk
of numerous illnesses, including kidney cancer and thyroid
disease. Id. ¶ 94.
3M and DuPont's Knowledge of PFOA-related Harms
allege that, from the 1950s through 2000, 3M manufactured and
sold PFOA to DuPont and to the McCaffrey Site Defendants.
Id. ¶ 213. From the 1950s through 2015, DuPont
manufactured and sold “PFOA-containing . . . products .
. . to other manufacturers . . . and to . . . Honeywell and
Saint-Gobain.” Id. ¶ 214. In 2000, 3M
ceased its manufacturing of PFOA after the United States
Environmental Protection Agency (“EPA”) informed
3M that it would “pursue more rigorous regulation
of” 3M's manufacturing of PFOA. Id. ¶
1962, DuPont researchers discovered that rats, rabbits, and
dogs exposed to PFOA had developed enlarged livers.
Id. ¶ 29. By 1978, DuPont discovered that its
employees who had “long-term exposure to PFOA”
had “abnormal liver function tests.” Id.
¶ 35. In 1979, DuPont learned that monkeys and rats
exposed to PFOA had an increased prevalence of kidney damage,
hyperkeratosis, and liver damage. Id. ¶ 42.
That same year, DuPont learned of a “90-day oral
study” in which experimental groups of monkeys were
exposed to varying dosage levels of PFOA. Id. ¶
43. The monkeys receiving the highest dose (100 mg/kg/day)
died in the first five weeks of the study, three monkeys
receiving the 30 mg/kd/day dose died during weeks 7-12 of the
study, and “all monkeys exposed at this dose showed
signs of toxicity in the gastrointestinal tract.”
Id. In 1980, 3M commissioned “PFOA toxicology
studies, ” which revealed that PFOA had an adverse
impact on the liver. Id. ¶ 44.
the early 1980's, . . . DuPont and 3M were sharing their
internal studies concerning health and environmental effects
associated with exposure to PFOA.” Id. ¶
52. By 1982, DuPont learned that “40% of the PFOA vapor
inhaled was retained in the blood of human males.”
Id. ¶ 53. In 1986, DuPont learned of a
“cancer morbidity study among” DuPont employees
at one of its facilities which revealed that these employees
“had an incidence of bladder cancer deaths at more than
double what would have been expected.” Id.
¶ 60. Through studies of its employees and animal
studies in the mid-1980s, DuPont learned that people and
animals exposed to PFOA had a heightened risk of several
forms of cancer. Id. ¶¶ 61, 63. In 1990,
DuPont conducted an “industrial hygiene data review,
” which found that “PFOA bioaccumulated inside
the body.” Id. ¶ 69. DuPont and 3M
conducted and reviewed several other studies in the 1990s
that similarly suggested that humans exposed to PFOA
accumulate the substance in their bodies over time,
id. ¶ 83. Plaintiffs allege that, in addition
to the studies performed by 3M and DuPont,
“[t]oxicology studies show that PFOA . . . is
associated in the medical literature with increased risk in
humans of” many types of cancer—including kidney
cancer—as well as “high cholesterol [and] high
uric acid levels.” Id. ¶¶ 93-94.
also allege that 3M and DuPont had long been aware that PFOA
could contaminate groundwater. In the mid-1960s, DuPont
learned that PFOA could “move rapidly in groundwater
and migrate into nearby bodies of water.” Id.
¶¶ 96-97. Moreover, in a 1975 internal memo, DuPont
acknowledged that PFOA placed in a landfill could leach into
the groundwater, and stated, “[f]or this reason, we
have elected to not landfill ‘Teflon'
waste at the local landfill, where large quantities of
underground water serving both the Plant and the surrounding
area are present.” Id. ¶ 98. In 1984,
DuPont learned “that PFOA in particulate form exhausted
from stacks at” its Washington Works plant in Virginia
was carried in the wind until it settled “in the soil
throughout the community.” Id. ¶ 101.
DuPont also learned, after performing several studies in the
1980s, that PFOA had contaminated the drinking water in the
communities near the Washington Works plant. Id.
¶¶ 101-04. Plaintiffs allege that, “[u]pon
information and belief, 3M and DuPont shared information
about the environmental contamination potential of . . .
PFOA” beginning as early as the 1980s. Id.
Contamination of Hoosick Falls
Village of Hoosick Falls operates a “municipal water
system” and provides around 95% of Hoosick Falls
residents with water. Id. ¶¶ 121-22.
Numerous facilities “in and around Hoosick Falls”
have used PFOA “in manufacturing processes, ”
including the McCaffrey Site, which began operating in 1961.
Id. ¶¶ 125-27. In 1986, Honeywell, then
known as Allied-Signal, purchased Oak Materials Group, Inc.,
inheriting its assets, including the McCaffrey Site.
Id. ¶ 129. In 1996, Honeywell sold the
McCaffrey Site to Furon Company. Id. ¶ 130. In
1999, Saint-Gobain purchased Furon and became the owner of
the McCaffrey Site. Id. ¶ 131.
1961, the companies operating the McCaffrey Site have
utilized “PFOA manufactured by defendants DuPont and
3M” in the Site's manufacturing processes.
Id. ¶ 133. When manufacturing
“stain-resistant fabric, ” employees of these
companies created “a liquid solution containing PFOA,
” and placed the solution in trays. Id. ¶
134-35. During the process of applying PFOA to the fabric,
“heat would vaporize a portion of the PFOA, ”
which was exhausted from the Site “as fine particulate
matter that was then transported by wind to the
community.” Id. ¶ 136. Employees at the
Site washed the trays containing the PFOA solution on a daily
basis, and the PFOA solution flowed into drains and,
consequently, into the soil and the aquifer. Id.
¶ 137. Moreover, during the manufacturing process for
various PFOA-infused products, the companies who operated the
McCaffrey Site used six “three-story ovens, ” and
they cleaned one oven and its stacks (the “internal
tubing” of the oven) each week. Id.
¶¶ 143-45. The employees washed the stacks
“in a large sink, ” and the “waste water
from the cleaning was discharged down a drain, ” which
eventually “resulted in the discharge of PFOA into the
soil and, in turn, into the aquifer.” Id.
¶ 146. Plaintiffs maintain, “[u]pon information
and belief, . . . the majority of PFOA used by . . .
Saint-Gobain and Honeywell was purchased from and/or
manufactured by . . . DuPont and 3M.” Id.
2007, Hoosick Falls built a “production well to supply
municipal water” to its residents, which stands around
500 yards away from the McCaffrey Site. Id.
¶¶ 154-55. In 2014 and 2015, Hoosick Falls tested
the municipal water and determined that the water contained
“high concentrations of PFOA.” Id.
¶¶ 156-59. Specifically, the tests revealed PFOA
concentrations of 151, 612, 618, 620, and 662 parts per
trillion (“ppt”) of PFOA. Am. Compl. ¶ 160.
As a point of comparison, in 2009, the EPA promulgated a
“provisional health advisory” which stated that
“short term . . . exposure to PFOA at a concentration
of 400 ppt can cause human health effects.”
Id. ¶ 113. In May 2016, the EPA issued a
“lifetime advisory” stating that, when PFOA is
present in a water supply at a concentration of over 70 ppt,
public health officials should undertake remediation of the
water supply and should inform users of the water
“about the health risks associated with exposure to
PFOA.” Id. ¶ 117.
October 2015, the regional EPA administrator learned about
the test results at the Hoosick Falls municipal water supply.
In November and December 2015, the EPA recommended that the
Village use an “alternative drinking water source,
” and “further recommended that residents not use
the municipal water for drinking and cooking.”
Id. ¶¶ 163-65. After the EPA's
December warning, Saint-Gobain began providing Hoosick Falls
residents with free bottled water, and agreed to pay for
“a granulated activated carbon filter system on the
municipal water system to remove PFOA from drinking
water.” Id. ¶ 169.
investigation of PFOA contamination in Hoosick Falls, the New
York Department of Environmental Conservation
(“DEC”) observed that PFOA leached “from
the former municipal landfill, ” which is adjacent to
the Hoosick River. Id. ¶ 150. The leachate
“continues to migrate towards and into the”
river. Id. The DEC found a PFOA concentration of 21,
000 ppt in the leachate. Id. On January 27, 2016,
the State Health Commissioner designated the McCaffrey Site
as a state Superfund Site. Id. ¶ 178. In
February 2016, state officials tested samples of water from
private wells in Hoosick Falls, and 42 out of 145 wells
tested contained water with PFOA concentration over 100 ppt.
Id. ¶ 190.
Plaintiffs' Alleged Injuries
maintain that “[v]irtually all of the long-time
residents of Hoosick Falls who were using municipal water at
the time of the discovery of the contamination had levels an
order of magnitude . . . above background levels of PFOA in
their blood serum.” Id. ¶ 197.
Furthermore, all current and former Hoosick Falls residents,
“including [P]laintiffs, have been exposed in the past
to PFOA at a level that meets or exceeds some health-based
comparison value.” Id. ¶ 198.
Wickenden has lived in Hoosick Falls since 1998 and has
consumed the Village of Hoosick Falls' municipal water
since 1998 “for drinking, cooking, bathing, cleaning
and other purposes.” Id. ¶ 201. Kenneth
also inhaled small particles of PFOA carried in the wind as a
consequence of the McCaffrey Site Defendants'
manufacturing processes. Id. ¶ 203. In August
2014, Kenneth was diagnosed with kidney cancer. Id.
¶ 205. In June 2016, the PFOA concentration in
Kenneth's blood measured 113 ug/L. Id. ¶
206. By comparison, Plaintiffs maintain that studies have
revealed that the average PFOA blood level in the United
States is 2.08 ug/L. Id. ¶ 195.
Wickenden has lived in Hoosick Falls since she was born.
Id. ¶ 207. She moved into the same home as
Kenneth in 1998. Id. ¶ 206. Since that date at
the latest, Shannon has consumed Hoosick Falls' municipal
water “for drinking, cooking, bathing, cleaning and
other purposes.” Id. Shannon, like Kenneth,
inhaled PFOA carried in the wind as particulate matter.
Id. ¶ 208. In June 2016, the PFOA concentration
in Shannon's blood measured 61.7 ug/L. Id.