Geoffrey W. Crawford, Judge United States District Court.
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,
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,
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.)
Plaintiffs define the putative class (with certain exclusions) as:
(Id. ¶¶ 75-76.)
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:
(Id. at 26.)
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
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").
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.)
"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, 549 F.3d 100, 106 (2d Cir. 2008)). "In deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint." Id.
"The abstention doctrine comprises four `extraordinary and narrow exception[s]' to a federal court's duty to exercise jurisdiction." In re Joint E. & S. Dist.
"Burford abstention respects the states' specialized and comprehensive regulatory schemes, in the way that Rooker-Feldman respects the judicial processes of the states." Hachamovitch v. DeBuono, 159 F.3d 687, 697 (2d Cir. 1998). There are two circumstances in which a federal court should apply Burford abstention:
Id. (quoting New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (internal quotation marks omitted)). The court evaluates three factors to determine whether Burford abstention is appropriate: "(1) the degree of specificity of the state regulatory scheme; (2) the need to give one or another debatable construction to a state statute; and (3) whether the subject matter of the litigation is traditionally one of state concern." Bethphage Lutheran Serv., Inc. v. Weicker, 965 F.2d 1239, 1243 (2d Cir. 1992); see also Cranley v. Nat'l Life Ins. Co. of Vt., 144 F.Supp.2d 291, 299 (D. Vt. 2001).
Saint-Gobain asserts that the first Bethphage factor is met because Vermont state law "provides a comprehensive statutory framework to formulate policy and decide cases, including opportunities for state court review." Bethphage, 965 F.2d at 1243. It is true that Vermont has a statutory framework to formulate policies concerning groundwater and drinking water,
Here, nothing about Plaintiffs' litigation will require the court to "meddle" in Vermont's regulatory scheme regarding PFOA. Saint-Gobain asserts that Plaintiffs' case is "based on" the state PFOA groundwater rules that Saint-Gobain is challenging in state court, and that Plaintiffs are attempting to "leverage" those rules into common-law tort claims. (Doc. 24 at 9.) According to Saint-Gobain, "[i]f this case proceeds based on ultimately vacated standards and an obviated designation of areas of `concern,' Vermont's treatment of PFOA will be anything but uniform." (Id.)
In their Complaint, Plaintiffs do indeed mention the 20 ppt threshold and the state "designated areas of concern," but litigating Plaintiffs' state-law tort claims will not require interference with those state designations or Saint-Gobain's state-court challenges. 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. See Martin v. Shell Oil Co., 198 F.R.D. 580, 586 (D. Conn. 2000) ("[N]o ruling as to whether the defendants trespassed on the plaintiffs' property will necessarily conflict with any finding of the state agency."). If there is any lack of "uniformity" between state regulations and the common law concerning PFOA, it is because the two bodies of law are simultaneously different and complementary. Cf. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 668, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) (negligence liability could complement federal regulations); see also Martin, 198 F.R.D. at 587 (state agency was charged with protecting the environment for the public's health and safety, but not with "vindicating individual property rights such as those asserted by the plaintiffs in this case").
Saint-Gobain contends that, because Plaintiffs have pled their class definition and their allegations of injury with reference to Vermont's PFOA groundwater rules, this litigation will necessarily require interpretation of state statutes and standards. (See Doc. 8-1 at 26.) According to Saint-Gobain, "the determination of these groundwater standards is within the unique discretion and authority of the Vermont agencies." (Id. at 27.) For the same reasons discussed above, however, this litigation does not call for determination of administrative groundwater standards. Those standards may be part of the evidence for Plaintiffs' common-law theories, but interpreting the standards will not be necessary to adjudicate Plaintiffs' claims.
Saint-Gobain relies upon the Bethphage case itself, but that case is distinguishable.
Saint-Gobain insists that the court will be required to apply Vermont's PFOA groundwater rules "in order to determine injury, class membership, and alleged entitlement to remediation." (Doc. 8-1 at 27.) The court does not read the Complaint that way. The Complaint does not use the 20 ppt threshold as a measure to determine whether any Plaintiff has experienced the diminished property values that Plaintiffs allege as an "injury." The Complaint refers to that threshold in several instances,
The third Bethphage factor is an inquiry into "whether the subject matter is traditionally one of state concern." Hachamovitch, 159 F.3d at 698. Providing for public health and safety is an area of state concern and one of every state's paramount policy priorities. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ("Throughout our history the several States have exercised their police powers to protect the health and safety of their citizens."). Vermont's groundwater protection statutes explicitly identify health and safety as policy reasons for management of groundwater. 10 V.S.A. § 1390(2). Management of hazardous waste is in a similar category. See Onondaga Landfill Sys., Inc. v. Williams, 624 F.Supp. 25, 30 (N.D.N.Y. 1985) (management of hazardous waste disposal and pollution in general is "an area of strong public interest which has traditionally been left to the states").
Plaintiffs concede these points, but assert that the same issues are also of significant federal interest. (Doc. 17 at 25.) The court's task is not to ascertain which
The doctrine of primary jurisdiction can be another basis for abstention. See United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (primary jurisdiction "requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme").
Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 295 (2d Cir. 2006) (quoting Ellis, 443 F.3d at 82-83). "The court must also balance the advantages of applying the doctrine against the potential costs resulting from complications and delay in the administrative proceedings." Nat'l Commc'ns Ass'n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 223 (2d Cir. 1995).
The questions raised by Plaintiffs' state-law tort claims are all within the conventional expertise of judges. Saint-Gobain asserts that Plaintiffs do more than allege state-law tort claims, and instead "purport to plead such claims based on
Nor is there a danger of inconsistent rulings. Saint-Gobain contends that Vermont's PFOA groundwater rules are "essential" to Plaintiffs' class definition and legal theories, and that if Saint-Gobain's legal challenge to those rules is successful, the court's adjudication of class certification and Plaintiffs' theory of liability could be upset. (See Doc. 8-1 at 22-23.) The court disagrees. As discussed above, Vermont's PFOA groundwater rules are not essential to Plaintiffs' class definition or their legal theories. See Martin, 198 F.R.D. at 586 ("Although standards of public health and public safety may provide relevant evidence or material for argumentation in the case, they are not dispositive of the claims in the case, all of which, except negligence per se, sound in private tort actions at common law, independent of any statutory standard.").
Moreover, there will be no interference with the Vermont agencies' regulation of PFOA if Plaintiffs prevail on their theories and are entitled to remedies. An award of damages is unlikely to interfere with the state agencies' efforts. See In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 175 F.Supp.2d 593, 618 (S.D.N.Y. 2001) ("[C]ourts generally do not defer jurisdiction where plaintiffs seek damages for injuries to their property or person."). Plaintiffs also seek equitable relief, which Saint-Gobain asserts "depends" on Vermont's PFOA groundwater rules. (Doc. 24 at 8.) Again, as discussed above, the Complaint does not depend on the 20 ppt threshold, and neither does the equitable relief that Plaintiffs seek.
Saint-Gobain appears to suggest that an award of equitable relief might conflict with the work of or relief ordered by ANR, DEC, or DOH. But Saint-Gobain does not articulate how any of the equitable relief that Plaintiffs seek might conflict with any particular order of those agencies. See In re MTBE Prods. Liab. Litig., 175 F.Supp.2d at 618 (where injunctive relief sought by plaintiffs was not provided by the various administrative agencies, and did not appear to be forthcoming, it was unlikely that court-ordered relief would be inconsistent with relief available through state statutory or regulatory programs). At the October 11, 2016 hearing, counsel for Saint-Gobain suggested that the company and the State of Vermont were in discussions regarding water hookups and medical monitoring — issues specifically mentioned in Plaintiffs' request for injunctive relief. Rather than being an impediment or potential conflict, the court views those discussions as potentially helpful to this case, since they might obviate some of the relief that Plaintiffs seek.
Saint-Gobain contends that the propriety of Vermont's PFOA groundwater rules is already before the Vermont agencies (and the Vermont state courts). (See Doc. 8-1 at 24.)
Finally, the costs of applying the primary-jurisdiction doctrine in this case far outweigh the benefits. The final administrative rules regarding groundwater and hazardous waste management have only just been issued. Assuming that Saint-Gobain elects to challenge those final rules in state court, the court process (including appeal to the Vermont Supreme Court) will likely take years. Awaiting resolution of the state administrative and appeals process would cause substantial delay in this case. Moreover, the benefit of abstaining in favor of that process is marginal at best. For the reasons described above, resolution of the enforcement standard for PFOA concentrations will have little bearing on resolution of Plaintiffs' state-law tort claims.
Saint-Gobain's Motion to Dismiss or Stay (Doc. 8) is DENIED.