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Wickenden v. Saint-Gobain Performance Plastics Corp.

United States District Court, N.D. New York

June 21, 2018



          Lawrence E. Kahn U.S. District Judge


         This 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.


         A. Factual Background

         The 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. 2012).

         PFOA is 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.

         1. 3M and DuPont's Knowledge of PFOA-related Harms

         Plaintiffs 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. ¶ 85.

         By 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.

         “By 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.

         Plaintiffs 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. ¶ 112.

         2. Contamination of Hoosick Falls

         The 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.

         Since 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. ¶ 152.

         In 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.

         In 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.

         In its 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.

         3. Plaintiffs' Alleged Injuries

         Plaintiffs 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.

         Kenneth 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.

         Shannon 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. ΒΆ ...

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