Little Hocking Water Ass'n, Inc. v. E.I. Du Pont De Nemours & Co.

91 F.Supp.3d 940

The LITTLE HOCKING WATER ASSOCIATION, INC., Plaintiff

v.E.I. DU PONT de NEMOURS AND COMPANY, Defendant.

Case No. 2:09–CV–1081.

United States District Court, S.D. Ohio, Eastern Division.

Signed March 10, 2015.

Dennis David Altman, Amy Marie Hartford, Amy Jo Leonard, Patrick Laughlin Brown, D. David Altman Co., L.P.A., Justin Derek Newman, Robin Burgess, Pro Hac, Vice, Cincinnati, OH, for Plaintiff.

Eric E. Kinder, Clifford F. Kinney, Jr., Niall A. Paul, Spilman Thomas & Battle, PLLC, Charleston, WV, Aaron Todd Brogdon, C. Craig Woods, Vincent Atriano, Squire Patton Boggs LLP, Columbus, OH, Anthony Fitzmichael Cavanaugh, Gary Timothy Lombardo, Libretta Porta Stennes, Steptoe & Johnson LLP, Michael W. Steinberg, Morgan, Lewis & Bockius LLP, Washington, DC, Margaret C. Coppley, Nathan B. Atkinson, Spilman Thomas & Battle, PLLC, Winston–Salem, NC, for Defendant.

OPINION & ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on the Parties' Cross–Motions for Summary Judgment. Little Hocking Water Association, Inc. (“Little Hocking” or “Plaintiff”) seeks partial summary judgment on its Trespass (Count IV) and Conversion (Count VI) claims against E.I. du Pont Nemours and Company (“DuPont” or “Defendant”). (Doc. 345). Defendant opposes, and moves for summary judgment on all of Plaintiff's claims (Counts I–VIII), including: Imminent and Substantial Endangerment under Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972 ; Public and Private Nuisance; Negligence; Trespass; Abnormally Dangerous or Ultrahazardous Activity; Conversion; Unjust Enrichment; and, Declaratory Judgment for Indemnity. (Doc. 346). For the reasons stated below, Defendant's Motion is GRANTED in part and DENIED in part, and Plaintiff's Motion is GRANTED.

II. BACKGROUND

A. Factual History

Plaintiff brings this action under RCRA, 42 U.S.C. § 6972(a)(1)(B), and Ohio common law and statutory law, claiming Defendant's waste disposal practices have caused imminent and substantial harm to health and the environment, and caused it tort-related injuries. Plaintiff is a non-profit public water provider whose business is to provide potable water to approximately 12,000 people in ten different townships in southeast Ohio. Defendant owns and operates the Washington Works Facility (the “Facility”) in West Virginia, approximately 1,300 feet down river from Plaintiff's Wellfield.

Little Hocking alleges that its Wellfield, which consist of approximately forty-five (45) acres of land as well as the soil and groundwater beneath the land, have been contaminated by DuPont. (Doc. 23). The alleged hazardous wastes are PFOA (perfluorooctanoic acid), otherwise known as C8, and other PFCs (perfluorinated compounds), which have shorter and longer carbon chains than C8 but have similar properties. These allegedly hazardous wastes are used in the manufacture of Defendant's Teflon® related products. Defendant has used C8 in its manufacturing processes from 1951 until it was phased out completely in June 2013. Defendant does not contest the fact that it released C8, or the amount of C8 it released. Nor does it contest that it released C8 via air emissions, water disposal, and at sites near or on the Facility.

1. Defendant's Knowledge of C8 in Environment and its Health Effects

By 1981, DuPont was studying the dangers of C8 exposures posed to its employees, and since 1982, its Medical Director, Dr. Karrh, had recommended reducing emissions for health reasons. (Doc. 345– 6; Doc. 345–7).¹ Throughout the 1980s DuPont set goals for reducing off-site air and river releases of C8 because it “accumulates in the blood and [ ] the future is unknown.” (Doc. 345–10). DuPont acknowledged that the legal and medical departments would most likely take a position of total elimination. Id. In 1984, DuPont detected C8 in the Little Hocking Water supply at .8 ppb. (Doc. 345–11). Defendant dumped 150,000 pounds of C8 into the Ohio River from 1980 to 1989, and 330,000 pounds from 1990 to 1999, thereby showing that they doubled emissions into the environment in the 1990s. (Doc. 345–5, Nos.16–17).

DuPont purchased the C8–contaminated Lubeck Public Service District property in 1991. In 1987, an internal memo recommended that DuPont make this purchase, even though other potential properties were less expensive, because any price difference would be justified by “elimination of the use of these wells as a source of public drinking water.” (Doc. 345–15).

Further, emails from DuPont's in-house counsel, John Bowman and Bernard Reilly, indicate that as of 2000 they had been attempting to get Defendant to take action on C8 releases since the 1990s. (Docs. 345–16, 17). In a 2000 email, Bowman states that “Bernie and I have been unsuccessful in even engaging the clients in any meaningful discussion of the subject [of C8 emissions] ... we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.” With respect to the same subject, Reilley states in 2001: “[t]he business did not want to deal with this issue in the 1990s, and now it is in their face, and some are still clueless. Very poor leadership....”

Defendant states that is has been trying to phase out C8 and recapture it since the 1988, and that it has spent more than fifteen million dollars in these efforts.

2. EPA Administrative Orders on Consent and the GAC

C8 is biopersistent and can remain in the environment for hundreds if not thousands of years. In 2011 and 2012, a panel approved by DuPont in relation to other litigation, found “probable links” between exposure to C8 and six human diseases. Some studies analyzing the effects of C8 exposure in animals show it causes adverse health effects.

In 2002, DuPont met with representatives of Little Hocking to notify them of the presence of C8 in its water supply. In March 2002, DuPont entered into an agreement with the United States Environmental Protection Agency (“USEPA”) whereby DuPont agreed to provide alternate drinking water for any public drinking water source, including Little Hocking, with C8 contamination levels greater than 14 parts per billion (“ppb”), a risk-based health protective screening level.

In January 2004, DuPont presented Little Hocking with the offer to build a granular activated carbon filtration (“GAC”) Facility to treat its water. Plaintiff was reluctant to accept this option, as it preferred a total clean-up of its Wellfield. Eventually, Plaintiff consented. Thus, since late 2007, water from the Wellfield is pumped to the Facility—which is on land purchased by DuPont because the Wellfield was not suitable for such a Facility—and back to the Wellfield to be distributed to customers.

In 2006, DuPont signed an Administrative Order on Consent (“AOC”) with the USEPA. In the 2006 AOC, the EPA determined that pursuant to the Safe Drinking Water Act, and for the purposes of the AOC:

C–8 is a contaminant present in or likely to enter a [public water system] or a [underground source of drinking water] which may present an imminent and substantial endangerment to human health at concentrations at or above .50 ppb in drinking water. EPA has based this determination on its interpretation of animal and human studies, and on the results of environmental sampling and monitoring in the vicinity of the Facility. The .5 ppb action level is a precautionary level to reduce exposure to the population living in the vicinity of the Facility.

(Doc. 346 at ¶ 32). Then, in 2009, the USEPA issued a second AOC, requiring Defendants to reduce the C8 water levels to .4 ppb. Thus, pursuant to the AOC, Defendant is bound to operate and maintain the GAC water treatment plant indefinitely until C8 water levels are below 0.4 ppb. The GAC has reduced the C8 in Little Hocking's water to undetectable levels.

3. C8 Pathways

Defendant does not contest the fact that it released C8 or the amount of C8 it released. Defendant does contest whether multiple pathways of migration of C8 from the Facility to the Wellfield exist. In its own field investigation of the Wellfield conducted pursuant to the AOC, Defendant states that “revised groundwater modeling by DuPont supports the previous conclusion that no current groundwater migration pathway exists beneath the Ohio River to the Little Hocking Well Field.”

It concluded that the only possible pathway of C8 was that it was transported via air emissions from DuPont's stacks by wind, and was deposited on Little Hocking's Wellfield vegetation and surface soils. Then, precipitation and possible flooding leaches the C8 downward through the unsaturated zone through the aquifer, and that groundwater containing C8 is pumped from the aquifer through the production wells.

Plaintiff's expert, Dr. Franklin Schwartz, a hydrogeologist at Ohio State University, states there is a water pathway from the contaminated soil surrounding the plant, to the Ohio River, and finally to the Little Hocking Wellfield. (Doc. 370–1). Schwartz states that C8, released from various sources at the Facility directly into the Ohio River, enters the River as a dissolved phase, and then is captured by wells at Little Hocking as induced infiltration of river water through sediments at the river bottom. He calls this water pathway the “River Pathway.” In addition, Plaintiff's expert, Dr. Staci Simonich, opines that unless remediated, C8 released by the Facility that has sorbed to the River's sediment will act as an ongoing source of C8 into the River Pathway and to the Little Hocking Wellfield. (Doc. 369–15 at 183–5, 338–341).

4. Alleged Harm to Plaintiff and its Wellfield as a Result of C8 Contamination

First, Plaintiff states that it ceased expansion projects due to C8 contamination. The first was a five-year plan, originally drafted in 1995, which includes the blueprint for three projects to expand its...