Lonsk v. Middlesex Water Co.

1

ROBERTA LONSK, on behalf of herself and all others similarly situated, Plaintiff, v. MIDDLESEX WATER COMPANY AND 3M COMPANY, Defendants.

No. 21cv19808 (EP) (ESK)

United States District Court, D. New Jersey

October 31, 2022

NOT FOR PUBLICATION

OPINION

Hon Evelyn Padin, U.S.D.J.

This case concerns claims brought by Plaintiff Roberta Lonsk (“Lonsk”), filed on behalf of a putative class concerning water contamination. Defendant Middlesex Water Company's (“MWC”) moves to dismiss “Count II - Negligence” of the First Amended Complaint (“FAC”), D.E. 43-4, pursuant to Fed.R.Civ.P. 12(b)(6). Separately, but also with respect to the FAC, Defendant 3M Company (“3M) moves to dismiss “Count I - Negligence,” “Count III - Nuisance,” and “Count IV - Trespass,” D.E 44-1, pursuant to Fed.R.Civ.P. 12(b)(6). The Court decides this matter on the papers pursuant to Fed.R.Civ.P. 78 and L.Civ.R.78.1(b). For the reasons expressed below, the motions will be DENIED.

I. BACKGROUND^[1]

Per- and polyfluoralkyl substances (“PFAS”) are manmade chemicals that have been manufactured find used in the United States since at least the 1940s. FAC ¶ 24. “They have long been used in a wide variety of industrial and commercial processes and products, such as stain repellants, paper coatings, and coatings for textiles such as fabrics, upholstery, and carpeting.” D.E. 40-2. PFAS are very persistent in the environment and in humans in the United States as they are extremely resistant to degradation due to the water solubility of their bonds, are able to migrate (e.g., from soil to groundwater), are not easily removed from the environment, and typical water treatments are unable to filter or treat PFAS. See FAC ¶¶ 24-25. Health effects of concern due to PFAS exposure include impacts on the liver damage, thyroid disease, decreased fertility, high cholesterol, obesity, hormone suppression, cancer, decreased antibody response to vaccinations, decreased birth weight, and decreased immune responses. Id. ¶¶ 26-27, 29.

One type of PFAS is perfluooctanic acid (“PFOA”), which is used to make fluoropolymer coatings and products that resist, heat, oil, stains, grease, and water. Id. ¶ 28. Like other PFAS, PFOA is very persistent and carries health risks with exposure. Id. ¶¶ 28- 29. 3M has mass-manufactured PFAS, including PFOA, since 1947, despite the company's increasing knowledge of the persistence and health risks associated with these chemicals for decades. See Id. ¶¶ 31-40. For example: in the 1950s, 3M learned that PFAS bioaccumulate in blood; in the 1960s, 3M linked PFOA exposure to liver damage and deemed PFAS “toxic” in a 3M technical manual; in the 1970s, 3M confirmed the toxicity of PFOA and learned that a noteworthy number of 3M employees had PFOA in their blood; in the 1980s, 3M learned that PFAS may damage the eyes of developing fetuses and found elevated cancer rates among its PFAS workers; in the 1990s, 3M studies further tied PFOA to cancer and notified the Environmental Protection Agency (“EPA”) that PFAS bioaccumulates in blood. Id. ¶¶ 32-36. On May 16, 2000, 3M announced that it would phase out its production of PFOA. Id. ¶ 37.

The New Jersey Department of Public Environmental Protection (“NJDEP”) has identified 3M as the “dominant global producer of PFOA” responsible for manufacturing at least 85% of PFOA globally. Id. ¶ 41. NJDEP has also attributed responsibility for PFOA discharge in New Jersey to 3M as a result of the company's distribution of the chemical to other companies operating in the state. Id. ¶ 41. For example, 3M distributed PFOA to DuPont, a New Jersey-based company, for use in its manufacturing processes until at least the early 2000s, and DuPont discharged this PFOA in New Jersey, which in turn, resulted in the contamination of New Jersey's environment. Id. ¶ 42. Finally, NJDEP has found that 3M knew of detrimental impacts of PFAS in New Jersey for decades. Id. ¶ 43.

In a separate action brought against 3M, MWC alleges that PFOA manufactured and distributed by 3M in New Jersey ended up in MWC's Park Avenue Water Treatment Plant (“Park Avenue Wells”), and that as a result, the drinking water MWC provided to its customers from those wells also contained PFOA. Id. ¶¶ 49-53.

Now, Lonsk brings this action on behalf of a class of New Jersey citizens who are customers of MWC and who received all or some of their drinking water from MWC's Park Avenue Wells (collectively, the “Class”). Id. ¶ 74.

On October 22, 2021, MWC sent the Class i notice titled “IMPORTANT INFORMATION ABOUT YOUR DRINKING WATER.” D.E. 40-1. In relevant part, the notice informed the Class:

Middlesex Water Company Has Levels of Perfluorooctanoic Acid (PFOA) Above Drinking Water Standards Our water system recently violated a New Jersey drinking water standard, and as our customers, you have a right to know what happened, what you should do, and what we are doing to correct this situation.

We routinely monitor for the presence of federal and state regulated drinking water contaminants. New Jersey adopted a standard, or maximum contaminant level (MCL), for PFOA in 2020 and monitoring began in 2021. The MCL for PFOA is 14 parts per trillion (ppt) and is based on a running annual average (RAA), in which the four most recent quarters of monitoring data are averaged. On September 7, 2021, we received notice that the sample collected on August 2, 2021 showed that our system exceeds the PFOA MCL. PFOA was found at 36.1 ppt which caused the RAA to exceed the MCL regardless of the next quarter results.

Id.

The October Notice also provided information on what this information meant, what actions the Class should take, and what actions MWC was taking, including:

What does this mean?

*People who drink water containing PFOA in excess of the MCL over time could experience problems with their blood serum cholesterol levels, liver, kidney, immune system, or, in males, the reproductive system. Drinking water containing PFOA in excess of the MCL over time may also increase the risk of testicular and kidney cancer. For females, drinking water containing PFOA in excess of the MCL over time may cause developmental delays in a fetus and/or an infant. Some of these developmental effects may persist through childhood.

What should [the Class] do?

• If you have specific health concerns, a severely compromised immune system, have an infant, are pregnant, or are elderly, you may be at higher risk than other individuals and should seek advice from your health care providers about drinking this water.

• The New Jersey Department of Health advises that infant formula and other beverages for infants, such as juice, should be prepared with bottled water when PFOA is elevated in drinking water.

• Pregnant, nursing, and women considering having children may choose to use bottled water for drinking and cooking to reduce exposure to PFOA.

• Other people may also choose to use bottled water for drinking and cooking to reduce exposure to PFOA or a home water filter that is certified to reduce levels of PFOA. Home water treatment devices are available that can reduce levels of PFOA. For more specific information regarding the effectiveness of home water filters for reducing PFOA, visit the National Sanitation Foundation (NSF) International website, http://www.nsf.org/.

• Boiling your water will not remove PFOA.

What is being done [by MWC]?

Middlesex Water Company has been monitoring the levels of PFAS compounds for a number of years. We have been reporting on PFOA detection in our Annual Consumer Confidence Report sent to you since 2008. In anticipation of New Jersey regulatory standards, we began evaluating treatment options in 2019. Design of a new treatment plant which will remove additional compounds, including PFOA, was completed and is under construction. The new treatment plant is expected to be in service in 2023. Only a portion of our service area, served by the Company's Park Avenue Treatment Plant is affected by this public notice. This notice is being distributed to only those customers who, according to our records, may at times, receive all or some of their water from that facility. The impacted municipalities are South Plainfield, Edison, Metuchen, Woodbridge, Clark and Rahway. Some portions of these municipalities may be affected, please see the map illustrating the affected area on our website at https://www.middlesexwater.com/water-quality/For more information, please contact our Customer Service Department at 800-549-3802.

Id.

The Class brings one claim against MWC: negligence.^[2] The Class alleges that MWC caused them harm by negligently supplying them with PFOA-contaminated water from the Park Avenue Wells. See FAC ¶¶ 1, 6-11, 14-18, 55-67. While the Class acknowledges that MWC did not manufacture nor knowingly contaminate the water in the Park Avenue Wells, the Class claims that MWC acted negligently in failing to: promptly remediate the PFOA contamination; promptly notify the Class about the contamination; and provide the Class with safe and clean water. See Id. ¶¶ 91-93. Specifically, the Class claims: on September 7, 2021, MWC learned that an August 2, 2021 Park Avenue Wells' water sample revealed that the water contained 36.1 ppt of PFOA; on September 10, 2021, NJDEP issued a notice of non-compliance with the 14 ppt MCL for PFOA to MWC; on October 22, 2021, six weeks after learning that the Park Avenue Wells had elevated levels of PFOA, MWC notified the Class of the contamination; on October 25, 2021, MWC held a presentation at a local high school, where the public could ask questions about the PFOA contamination; on November 9, 2021, MWC shutdown the Park Avenue Wells; and on December 16, 2021, MWC issued a press release publicly announcing the shutdown and the...