PFAS Alert: New York State Court Certifies PFOA Class Action

On July 3, 2018, a state court in New York certified a class action lawsuit that involves residents of Petersburgh, New York who claim exposure to varying levels of the chemical, perfluorooctanoic acid (PFOA). PFOA is in the class of chemicals known as per-and polyfluoroalkyl substances and was used to make heat, water, and stain resistant household and commercial products. Think Teflon, Scotchgard, GORE-TEX, fast food wrappers, etc.

This is the first class action matter that’s been certified in the State of New York that involves the chemical, PFOA.

Notably, the US EPA does not have enforceable health-based drinking water standards for PFOA.  Rather, US EPA has only an unenforceable health advisory limit set at 70 ppt. The New York State Department of Health (NYS DOH) does has an enforceable drinking water standard of 50,000 ppt for any chemical classified as an unspecified organic contaminant, which includes PFOA.  Environmental advocacy groups and the plaintiff’s bar remain staunch advocates for states like New York to establish reduced maximum contaminant levels (MCLs) for PFOA in drinking water and to follow the lead of states like New Jersey, which has set enforceable MCL threshold limits that are significantly lower than the unenforceable health advisory limits set by US EPA.

Getting back to the Petersburgh, NY residents —  the residents there allege exposure to PFOA from an industrial facility owned by Tonoga, Inc. d/b/a Taconic Plastics (Taconic).  It’s alleged that Taconic used PFOA in its process of coating fabrics with Teflon. According to the residents in the suit, Taconic has been releasing PFOA into the drinking water through the air and soil since the facility opened in 1964. The residents allege exposure from both the Town of Petersburgh public well system and privately-owned wells and allege the elevated PFOA levels are associated with an increased incidence of cancerous and non-cancerous conditions in humans and animals.

Taconic allegedly first became aware of the contamination in 2004 when it tested the groundwater under its facility. In 2006, Taconic installed carbon filtration systems on its wells to reduce the amounts of PFOA in the water at its facility and began distributing bottled water to employees and residents living in company-owned housing. Taconic failed to alert the town or town residents that it had discovered high amounts of PFOA in wells on and around its facility.

​In November 2016, Taconic entered into a Consent Order with the New York State Department of Environmental Conservation that required it to provide a granulated carbon filtration system for the Petersburgh Public Water System and point-of-entry treatment systems for contaminated private wells. Until the installations were complete, residents were instructed not to drink or cook with the water, and to avoid exposure when bathing. In June 2016, the DOH began offering blood testing for PFOA. Out of the 477 residents that participated, over 400 had PFOA blood levels above the United States general population mean of 1.86 ug/L.

Thereafter, several Petersburgh residents filed suit. Plaintiffs filed a motion for class certification and proposed four classes including: (1) a town water property damage class; (2) a private well property damage classes; (3) a private well nuisance class; and (4) a PFOA invasion injury class.

To become certified as a class action, the requirements of CPLR 901, specifically, numerosity, commonality, typicality, adequacy of representation, and superiority must be met. Taconic agreed plaintiffs met the numerosity and adequacy requirements and thus the court focused its analysis on commonality, typicality, and superiority.

In considering the plaintiffs’ property damage and nuisance claims, the court found that all class members suffered a common injury: soil and water contamination from Taconic’s facility that interfered with the enjoyment of their property. Therefore, the contaminant and method of contamination were identical.

The court also found that the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members, and therefore common issues predominate. It emphasized that while specific damages may vary between the plaintiffs, it’s advantageous to litigate the matter of liability once, instead of hundreds of times.

Notably, in its analysis of the proposed bodily invasion class, the court acknowledged all of the residents “are symptom-free and exhibit no indications of disease related to PFOA exposure.” The residents seek to recover medical monitoring costs from Taconic. The court considered Taconic’s arguments as to whether issues involving causation and damages predominated over common issues. The court determined there was no dispute regarding exposure as blood serum levels of all plaintiffs demonstrated above-background PFOA levels. The court further found that plaintiffs alleged with a reasonable degree of medical certainty that medical monitoring expenditures are reasonably anticipated to be incurred due to above-background level exposures. Whether or not plaintiffs can ultimately prove this allegation is irrelevant at the class certification stage the court reasoned.

Lastly, the court found Taconic’s arguments premature on a motion for class certification as to whether PFOA is actually harmful to humans, or the efficacy of administering a medical surveillance program for an entire exposed population on a motion for class certification.

The court granted plaintiffs’ motion for class certification and certified the four classes as proposed by plaintiffs.

This class action is likely the first of many in New York State involving PFOA contamination. We’ll be following closely this emerging litigation.

 

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