A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country. The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater. At the same time, several cases are winding their way through the courts. Below we discuss several recent cases involving PFAS contamination. In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery.

Citizen Suit Claims

In February 2017, a U.S. District Court denied motions to dismiss RCRA “imminent and substantial endangerment” claims relating to PFAS. See Tennessee Riverkeeper, Inc. v. 3M Co., No. 5:16-cv-01029-AKK, 2017 WL 784991 (N.D. Ala. Feb. 10, 2017). This case involved the alleged continuing contamination of the Tennessee River and associated public drinking water supplies with PFAS that the plaintiff claims originated from a local manufacturing facility and two local landfills.

Among several arguments that the claims should be dismissed, the owners of the landfills argued that the claims were a collateral attack on existing, valid permits including a solid waste permit that authorized disposal in the landfill of the material at issue. The court denied the motion to dismiss stating that the permits only authorize disposal of non-hazardous waste, and there is a dispute over whether the PFAS-containing material is a hazardous waste. The owner of the manufacturing facility also made several arguments that the claims should be dismissed, including mootness due to an existing enforcement by the state agency in the form of a Remedial Action Agreement. The court denied this motion on the basis that Riverkeeper is seeking additional remedies not provided in that agreement, such as an injunction banning additional disposal of PFAS-containing materials absent demonstration of an appropriate, functioning liner.

Cost Recovery under CERCLA

In February 2017, a U.S. District Court evaluated a motion to dismiss a CERCLA cost recovery claim for PFAS contamination of groundwater used for drinking water. See City of Lake Elmo v. 3M Co., No. 16-2557 ADM/SER, 2017 WL 630740 (D. Minn. Feb. 15, 2017). The plaintiff, City of Lake Elmo, claimed that 3M Company, a manufacturer of PFAS, had disposed of PFAS-containing wastes at its facility and a local landfill, resulting in contamination of groundwater including the local drinking water supply. Lake Elmo sought recovery of costs it spent constructing an alternate water supply.

The defendant’s primary argument in support of the motion to dismiss was that the city had not shown that its response costs were traceable to the company’s conduct. The court held that the complaint adequately alleged that 3M was liable under CERCLA for the PFAS contamination and that Lake Elmo had constructed the water system as a necessary response cost.

Tort Claims

Tort claims may be brought in cases involving PFAS based on allegations that individuals have been exposed to these contaminants in the environment and suffered injury, or that the PFAS contamination has interfered with their property rights.

Village of Hoosick Falls, NY

A U.S. District Court dismissed certain nuisance claims but left in place the remaining claims including negligence, strict liability, trespass, and other nuisance claims related to contamination of the village drinking water supply in a case arising out of groundwater contamination by perfluorooctanoic acid (PFOA), one of the many PFAS, in the local drinking water supply. See Baker v. Saint-Gobain Performance Plastics Corp., No. 1:16-CV-0917 (LEK/DJS), 2017 WL 486939 (N.D.N.Y. Feb. 6, 2017). The court took the unusual step of certifying the order for interlocutory appeal to the Second Circuit sua sponte, stating that the motion raised “several complex and novel issues of New York law as to which the existing case law is significantly muddled.” An appeal has been filed by the defendants.

The defendants sought to dismiss these claims primarily arguing that the plaintiffs have not sustained a legally cognizable injury. The plaintiffs, a putative class consisting of individuals that own or rent property in Hoosick Falls or consumed the water, alleged diminution in their property values. The defendants argued that because the groundwater is a public resource not owned by the plaintiffs, the plaintiffs allege only economic harm and this is insufficient to state a claim. The court assumed for the purposes of the motion that the groundwater is a public resource not owned by the plaintiffs. The court concluded that the plaintiffs did state a cognizable claim for negligence, stating: “It is sensible public policy to require that manufacturers avoid polluting the drinking water of the surrounding community, and nothing in [cited case] prevents a person whose water supply was contaminated by such conduct from recovering in tort, even if she seeks economic damages.” Further, “The root injury complained of by Plaintiffs is the loss of their potable water supply, an injury that is not fairly characterized as purely economic in nature.”

In relation to the claims for personal injury, the plaintiffs did not allege current illness, but instead alleged increased levels of PFOA in their blood. The defendants argued that this is not a sufficient “actual injury” that can support a tort claim and, further, New York does not recognize medical monitoring as an independent claim. The court refused to dismiss the claims, holding that a claim for medical monitoring is cognizable in New York where the injury is “the accumulation of a toxic substance within her body” and where there is an existing tort, in this case, the claims for property damage.

Bennington, Vermont

A U.S. district court denied a motion to dismiss or stay common law class claims for negligence, nuisance, trespass, battery and strict liability relating to PFOA contamination of groundwater. See Sullivan v. Saint-Gobain Performance Plastics Corp., No. 5:16-CV-125, 2016 WL 7487723 (D. Vt., Dec. 28, 2016). The plaintiffs are a proposed class comprised of individuals with interest in real property in the area of the contamination. The defendant, Saint-Gobain, sought to dismiss or stay the case for lack of subject matter jurisdiction under the Burford abstention doctrine and the doctrine of primary jurisdiction. In relation to Burford abstention, Saint-Gobain argued that because the plaintiffs’ case is predicated on the state’s interim standard of 20 parts per trillion, which is being challenged, any action by this court would interfere with the state regulatory scheme. The court disagreed, stating that “No ruling on issues of negligence, nuisance, trespass, or Plaintiffs’ other common-law theories, will necessarily conflict with Vermont’s regulatory scheme or process regarding PFOA.” In relation to primary jurisdiction, the court considered whether resolution of the issues in dispute in the case would require resolution of issues that should first be determined by the state environmental agency. The court determined that the answer is “no,” and abstention is not proper, because the state standard for PFOA is not “a measure to determine whether any Plaintiff has experienced [injury].” For these reasons, the court denied the motion to stay or dismiss the action.