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Sullivan v. Saint-Gobain Performance Plastics Corp.

United States District Court, D. Vermont

December 28, 2016

JAMES D. SULLIVAN, LESLIE ADDISON, SHARYN JONES, and BISHOP ROBFN HOOD GREENE, individually, and on behalf of a Class of persons similarly situated, Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION, Defendant.

          OPINION AND ORDER (DOC. 8)

          GEOFFREY W. CRAWFORD, JUDGE

         Plaintiffs James D. Sullivan, Leslie Addison, Sharyn Jones, and Bishop Robin Hood Greene reside in the towns of Bennington and North Bennington, Vermont. They bring this putative class action for negligence, nuisance, trespass, battery, and strict liability against Defendant Saint-Gobain Performance Plastics Corporation ("Saint-Gobain"). Plaintiffs allege that Saint-Gobain and its predecessor ChemFab Corporation ("ChemFab") caused groundwater and property contamination by discharging perfluorooctanoic acid ("PFOA") from facilities in Bennington and North Bennington, and that the contamination resulted in diminished property values and other economic loss. (See Doc. 1.) Saint-Gobain has filed a Motion to Dismiss or Stay under Fed.R.Civ.P. 12(b)(1), pending the outcome of Saint-Gobain's state-court challenges to PFOA groundwater rules recently promulgated in Vermont. (See Doc. 8.) The court heard argument on the Motion on October 11, 2016, at which time the motion was taken under advisement.

         Background

         The allegations in the Complaint include the following. PFOA is a man-made perfluorinated chemical. Because it repels lipids and water, it is used in a variety of manufacturing and industrial processes and commercial applications. For example, it is used to manufacture non-stick cookware, stain-resistant carpets and fabrics, water-repellant clothing, and food packaging. It is a stable chemical for which there is no known environmental breakdown mechanism; it is readily absorbed into biota and accumulates with repeated exposure. Accumulation of PFOA in humans causes damage to the blood, liver, kidneys, immune system, and other organs, and causes diseases such as cancer, immunotoxicity, thyroid disease, ulcerative colitis, and high cholesterol. The United States Environmental Protection Agency ("EPA") has classified PFOA as an "Emerging Contaminant of Concern." (See Doc. 1 ¶¶ 13-22.)

         ChemFab, Saint-Gobain's predecessor by merger, [1] conducted manufacturing operations at a plant in Bennington, Vermont beginning in 1968, and transferred those operations to a plant in North Bennington, Vermont in 1977. (Id. ¶¶ 31, 33.) ChemFab, and then Saint-Gobain, operated the North Bennington facility from approximately 1977 through 2002. (Id. ¶ 30.) The operation involved manufacturing polytetrafluoroethylene ("Teflon") coated woven fiberglass fabrics, and used chemical solutions containing PFOA in that process. (See id.) According to Plaintiffs, inadequate and unsafe practices related to the handling, cleanup, or disposal of PFOA caused Saint-Gobain to discharge PFOA from its North Bennington facility into the soil and water, causing environmental contamination around the facility, including contamination of the local groundwater aquifer and numerous private drinking water wells. (Id. ¶ 53.)

         In February 2016, after the discovery of PFOA contamination from another Saint-Gobain facility in nearby Hoosick Falls, New York, the Vermont Department of Environmental Conservation ("DEC") sampled three private drinking water wells and two commercial wells near the site of the Saint-Gobain plant in North Bennington. All five wells were found to contain PFOA levels above 20 parts per trillion ("ppt"). (Id. ¶ 55.) In March 2016-on the recommendation of the Vermont Department of Health ("DOH")-DEC designated a Vermont drinking water Health Advisory limit/interim groundwater enforcement standard for PFOA of 20 ppt. (Id. ¶ 24.)

         Also in March 2016, DEC developed an initial plan to sample all private drinking water wells and water sources within a 1.5-mile radius of the plant. (Id. ¶ 56.) As part of that initial plan, DEC sampled approximately 180 private drinking water wells. Approximately 116 of those wells contained some level of PFOA contamination, and approximately 105 were contaminated with PFOA in excess of 20 ppt. (Id. ¶ 57.) DEC expanded its testing beyond the original 1.5-mile radius, and by late April 2016 had sampled 232 private drinking wells, of which approximately 126 showed PFOA levels above 20 ppt. (See Id. ¶¶ 59-62.) Plaintiffs allege that, as a result of the ground water and soil contamination, they and members of the putative class have suffered diminution of property value. (Id. ¶ 67.)

         Plaintiffs define the putative class (with certain exclusions) as:

All natural persons, whether minor or adult, including any person claiming by, through or under a Class Member, who have interests in real property within the Zone of Contamination, including, but not limited to, those persons whose private water supply wells have been found to be contaminated with PFOA above 20 ppt.

(Id. ¶¶ 75-76.)[2] The "Zone of Contamination" is defined as "those areas of North Bennington and Bennington, Vermont, most recently designated by the State of Vermont as 'Designated Areas of Concern in North Bennington and Bennington' on April 26, 2016." (Id. ¶ 74.)

         Plaintiffs filed their Complaint on May 6, 2016. (Doc. 1.) For relief, they seek, among other things, an injunction and more than $5, 000, 000 in damages. (See Id. at 25-26.) The injunction that Plaintiffs seek would require:

(1) connect[ion] [of] each impacted water supply within the Zone of Contamination onto municipal water; (2) the establishment and implementation of remedial measures sufficient to permanently prevent PFOAs from further contaminating Plaintiffs' and Class Members' drinking water supplies and/or properties; (3) the establishment and implementation of a long-term medical testing protocol for Plaintiffs and Class Members to monitor their health and diagnose at an early stage any ailments associated with exposure, inhalation or ingestion of PFOA; and (4) the establishment of additional steps, to be proven at trial, that are determined necessary to remediate Plaintiffs' and all Class Members' properties and/or residences to eliminate the presence of PFOA ....

(Id. at 26.)

         Saint-Gobain's State-Court Challenges to Vermont PFOA Groundwater Rules

         The following additional facts relate to Saint-Gobain's Rule 12(b)(1) Motion to Dismiss or Stay. In 2009, the EPA set 400 ppt as a "provisional health advisory level" for PFOA. (See Doc. 8-6.) On March 7, 2016-after sampling showed PFOA contamination in wells in North Bennington-DOH issued a health advisory recommending against drinking water with PFOA concentrations in excess of 20 ppt. (Doc. 8-10 at 3.) DOH's health advisory stated that the 20 ppt value was based on EPA's draft 2014 Health Effects Document for PFOA, which was under review at that time and had not yet been finalized. (See Id. at 3 & n. 1.)

         On March 16, 2016, based on the DOH advisory, DEC set 20 ppt as the interim groundwater enforcement standard for PFOA. (Id. at 2.) On April 13, 2016, the Vermont Agency of Natural Resources ("ANR") initiated the process for adoption of emergency rules concerning PFOA, seeking to designate PFOA as "hazardous waste" and to establish a primary groundwater enforcement standard of 20 ppt. (Doc. 8-11.) The emergency rules were set to become effective on April 29, 2016, and to remain in effect until August 26, 2016. (Id. at 5.)

         Saint-Gobain filed legal challenges to the interim standard and the emergency rules. On April 13, 2016, Saint-Gobain filed suit in the Vermont Superior Court, Washington Unit (see Doc. 8-13) (the "Interim Standard Washington Unit Complaint"), and in the Vermont Superior Court, Environmental Division (see Doc. 8-14) (the "Interim Standard Environmental Division Appeal").[3] In the Interim Standard Washington Unit Complaint, Saint-Gobain alleged that DEC's March 16, 2016 interim groundwater enforcement standard was not in compliance with the Vermont Administrative Procedure Act ("APA"), and was not supported by science. (See Doc. 8-13 ¶ 23.) In the Interim Standard Environmental Division Appeal, Saint-Gobain asserted that DEC lacked power to enforce any PFOA standard prior to the designation of the interim groundwater enforcement standard, and that the standard was unsupported. (See Doc. 8-14 at 3.) On May 13, 2016, Saint-Gobain filed suit in the Vermont Superior Court, Washington Unit, challenging the validity of the emergency rules promulgated by ANR (see Doc. 8-15) (the "Emergency Rule Complaint")[4] In that action, Saint-Gobain alleged that the emergency rules were not adopted in compliance with the APA, and were not supported by science. (See Doc. 8-15 ¶¶ 33, 36, 48, 51.)

         In May 2016, the EPA issued a drinking water health advisory for PFOA at a recommended level of 70 ppt (not the more stringent 20 ppt level that had appeared in the draft 2014 health effects document). (See Doc. 8-8.)

         Analysis

         I. Rule 12(b)(1) Standard

         "A district court properly dismisses an action under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction if the court 'lacks the statutory or constitutional power to adjudicate it'" Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L.,790 F.3d 411, 417 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). On a Rule 12(b)(1) motion, the court accepts as true '"all material allegations of the complaint[] and . . . construe[s] the complaint in favor the complaining party.'" Id. (first brackets in original) (quoting W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP,54 ...


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