Fixed contaminant standards need not be reached, much less exceeded, in order to cause an injury that courts can recognize. An intermediate appeals court in New York has ruled that the Suffolk County Water Authority may sue chemical companies for groundwater contamination even where the contamination does not exceed an EPA drinking water standard known as a Maximum Contaminant Level. However, this may be a pyrrhic victory, as that same court also ruled that many of the SCWA’s claims were too late under New York’s three-year statute of limitations for injuries from latent effects of exposure to harmful substances.
While the state’s highest court could still weigh in on this case, this decision is a key reminder of the important role that groundwater data plays in determining when a claim for groundwater contamination is timely.
In the case of Suffolk County Water Auth. v. Dow Chem. Co., the appellants, a group of manufacturers, distributors, and retailers of the dry cleaning solvent perchloroethylene (“PCE”), appealed a trial court’s denial of their motion for summary judgment on the grounds that the SCWA lacked standing to sue. The industry parties argued that the SCWA was not injured, and thus lacked standing to bring such a claim, because the PCE contamination in nearly all of the affected drinking water wells was below the EPA’s Maximum Contaminant Level for PCE in drinking water, and thus was technically potable.
The Appellate Division rejected the appellants’ argument on standing. It agreed that EPA’s MCL for a given contaminant determines when water is potable, but does “not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs.” In other words, water that is only slightly contaminated can trigger a recoverable injury, even if it is still officially potable under government regulations.
However, despite the actionable injury, the court held that the SCWA had waited too long to bring many of its claims for contamination. The court determined that the contamination of the SCWA’s wells was governed by CPLR 214-c, which sets a three year statute of limitations on injuries cause by latent effects of exposure to harmful substances.
Groundwater contamination cases are not always governed by CPLR 214-c. However, in the Suffolk case, the SCWA was proceeding on a “market share” theory of collective liability. Rather than present evidence of specific releases, the SCWA presented evidence of widespread groundwater contamination from PCE and evidence of the volume of business for which various manufacturers, distributors and retailers of PCE were responsible. Some of the appellants unsuccessfully moved to dismiss the case on the inapplicability of the market share theory of liability earlier this year in Suffolk County Water Auth. v. Dow Chem. Co., 987 N.Y.S.2d 819 (Sup. Ct., Suffolk County 2014).
The market share theory of liability conveniently allowed the SCWA to sue a large group of companies without much specific evidence of wrongdoing, or large volumes of data tracking groundwater contamination over time. But in the Suffolk case, that convenience ultimately proved the SCWA’s undoing because it had no data to support an argument that multiple releases of contamination occurred over time, which could have made its claims timely. Accordingly, the court dismissed the SCWA’s claims for damages at all wells where contamination had been discovered more than three years prior to the SCWA filing suit, which amounted to 155 of the wells at issue in the case.
For more information about the Suffolk case, or how statutes of limitations are calculated for groundwater contamination claims as a result of this decision, contact one of the environmental attorneys at Periconi, LLC.
A copy of the decision in the Suffolk case is available on the Appellate Division’s website at:
Suffolk Cnty. Water Auth. v. Dow Chem. Co., No. 2012-07097, 2014 N.Y. App. Div. LEXIS 5350 (2d Dep’t July 23, 2014)