• Plaintiff Suffers No Injury-In-Fact by Chemicals in Groundwater at Levels below the "Maximum Contaminant Level"
  • October 22, 2010 | Author: Ashley Cummings
  • Law Firm: Hunton & Williams - Atlanta Office
  • A recurring issue in environmental cases is whether the presence of a pollutant in groundwater at levels below the “maximum contaminant level” for that pollutant is actionable.  A recent decision out of the Northern District of Florida is of interest to defendants and potential defendants in such cases.  Emerald Coast Utils. Auth. v. 3M Co., 2010 U.S. Dist. LEXIS 103000 (N.D. Fla. Sept. 29, 2010).  The Court granted the defendants’ motion for summary judgment, finding that the plaintiff failed to establish injury-in-fact for purposes of Article III standing.  The Court declined to apply a bright-line rule that a plaintiff cannot suffer injury should the chemicals at issue not exceed any federal or state maximum contaminant level.  But the Court did find that the contamination levels did not exceed the maximum contaminant level and plaintiff failed to show that it had suffered any injury as a result of the presence of chemicals in its water supply.

    Plaintiff Emerald Coast Utilities Authority (“ECUA”) supplies drinking water to residents and businesses in Escambia County, Florida.  ECUA operates 32 wells that draw water from an aquifer that is near the ground surface and susceptible to contamination.  ECUA contends that its wells are contaminated by perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”), toxic fluorochemical byproducts of the industrial activities of defendants 3M Company, E.I. DuPont De Nemours and Company and Solutia, Inc. (“Defendants”).

    ECUA became aware of a potential issue in 2006 when outside parties contacted it concerning possible PFOA and PFOS exposure in the wells.  Neither the United States Environmental Protection Agency (“EPA”) nor the Florida Department of Environmental Protection had a maximum contaminant level guideline for PFOA or PFOS.  The EPA had, however, published a consent order establishing an action level for PFOA at 0.50 parts per billion (“ppb”).  ECUA commissioned a study that found PFOA and PFOS in every sample of well water that was tested, but the highest reported level was 0.12 ppb.  The average results were 0.00113 ppb for PFOA and 0.0037 ppb for PFOS.  Two years later, the EPA issued provision health advisories setting it at 0.4 ppb for PFOA and 0.2 ppb for PFOS.  ECUA filed its suit approximately 6 months later.

    To support its allegation of injury, ECUA submitted declarations stating that the levels of PFOA and PFOS “constitute[d] an unwelcome impurity in the ECUA water supply,” that “ECUA has incurred expenses and will incur further expenses in the foreseeable future...include[ing] testing, monitoring, and filtration costs,” and that the levels of fluorochemicals may have a negative impact on ECUA’s public image.  Moreover, ECUA’s expert testimony merely discussed the potential harmful effects of PFOA and PFOS on humans in general terms, far from establishing that the existing levels were harmful or dangerous.

    The Emerald Coast Court concluded that summary judgment should be entered on all claims against the Defendants as ECUA failed to demonstrate an injury-in-fact for purposes of Article III standing.

    The Emerald Coast opinion follows the line of cases such as Iberville Parish Waterworks Dist. No. 3 v. Novartis Crop Protection Inc., 45 F. Supp. 2d 934, 943 (S.D. Ala. 1999), aff’d without opinion, 204 F.3d 1122 (11th Cir. 1999) (dismissing trespass and nuisance claims because chemical levels were below regulatory standards); Thompson v. Southern Pacific Transp. Co., 809 F.2d 1167 (5th Cir. 1988) (exposure to chemical in drinking wells below the EPA-recommended maximum contaminant level was insufficient to establish causation); Brooks v. E.I. du Pont de Numours & Co., 944 F. Supp. 448 (E.D. N.C. 1996) (contamination that meets state groundwater quality standards is not actionable in tort); and Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959 (W.D. Ky. 1993) (concluding that de minimis levels of contamination were not sufficient for a nuisance cause of action).

    Though the Emerald Coast opinion does not go so far as to establish a bright-line maximum contaminant level rule, the trajectory of case law is certainly advantageous to companies facing suits based on groundwater contamination in amounts that fall below federal or state guidelines.