Court Dismisses Water Contamination Complaint For Failure To State A Cause Of Action Against Chemical PFAS Manufacturers

• Published date: 15 February 2022
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Chemicals, Water
• Law Firm: Harris Beach
• Author: Mr Wayne L. Gladstone, Kelly Jones Howell and Gene Kelly

The U.S. District Court for the Southern District of New York has dismissed a complaint alleging the defendants contaminated plaintiff's water systems with per- and polyfluoroalkyl substances ("PFAS"). In a highly detailed decision, Judge Lewis J. Liman held that the plaintiff failed to state a cause of action against the chemical manufacturers under all causes of action pleaded on causation grounds and as well as a matter of substantive law.

"PFAS" are a class of "forever chemicals" used in a wide variety of industrial and commercial products, such as carpets, food packaging, cookware, and fabrics as well as name-brand chemical additives. In 2020, the New York State Department of Health's ("NYSDOH") Public Health and Health Planning Committee adopted Maximum Contaminant Levels ("MCLs") for PFOA and PFOS (subsets of PFAS) in the state's public water systems, requiring all public water systems to test and monitor regularly and take corrective action if the water system exceeds defined levels.

Plaintiff, Suez Water New York, Inc. ("Suez"), a New York corporation, owners and operators of five public water systems, brought suit against defendant manufacturers who, in part, licensed the use of its PFAS-containing name-brand chemical additives and solutions, such as Teflon^', Viton^', and Tyvek^', to industrial manufacturers for use in their own products. Plaintiff claims these intermediary industrial manufacturers as well as end users of the finished product caused the contamination of its water systems.

As an initial note, the Court granted dismissal against defendants Corteve, Inc. and Dupon De Nemours, holding their status as successors in liability to the remaining manufacturing defendants did not subject them to personal jurisdiction. Plaintiff's complaint was then dismissed against the manufacturing defendants pursuant to Rule 12(b)(6) for its failure to state a cause of action.

The Court began its Rule 12(b)(6) analysis by holding plaintiff's "threadbare allegations" regarding causation were fatal to all of plaintiff's claims. Analyzing the seminal groundwater case of In re MTBE, 725 F.3d 65, (2^nd Cir. 2013) the Court conceded causation is typically a question of fact for a jury, but held MTBE and its progeny were distinguishable due to the more speculative allegations of the present matter. Specifically, the Court noted plaintiff failed to allege the specific chemicals defendants sold or their market share of those chemicals, frustrating any attempt to...