Suffolk Cty. Water Auth. v. Dow Chem. Co. - 2014 NY Slip Op 05420, 121 A.D.3d 50, 991 N.Y.S.2d 613 (App. Div. 2nd Dept.)

Rule:

The maximum contaminant level (MCL) set by the United States Environmental Protection Agency and the New York State Department of Health is only a regulatory standard which governs conduct in supplying water to the public. While the MCL may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury cannot have occurred. Similarly, the MCL does not define whether an injury has occurred, since contamination below that level could result in some injury, such as increased monitoring costs.

Facts:

The Suffolk County Water Authority (hereinafter the SCWA) was operating public water drinking systems and supplying drinking water to thousands of residents and businesses in Suffolk County. On July 12, 2010, the SCWA commenced this action against a number of manufacturers, distributors, and retailers of perchloroethylene (hereinafter PCE), a chemical commonly used in dry cleaning, and manufacturers, distributors, and retailers of dry cleaning equipment intended for use with PCE. The SCWA alleged that the defendants were responsible for the contamination of many of its wells with PCE and two chemicals resulting from degradation of PCE, trichloroethylene (hereinafter TCE) and dichloroethylene (hereinafter DCE). The defendants moved for summary judgment, arguing that SCWA lacked standing since the contamination in question did not reach or exceed the maximum contaminant level set by the United States Environmental Protection Agency and the New York State Department of Health of 5 parts per billion of PCE. The defendants also moved for summary judgment dismissing, arguing that the suit was time-barred. The Supreme Court denied the motion in its entirety.

Issue:

1. Did the plaintiff lack standing to sue defendants based on the fact that the contamination did not reach or exceed the maximum contaminant level set by the United States Environmental Protection Agency and the New York State Department of Health?
2. Were the plaintiff’s claims timely asserted?

Answer:

1) No. 2) Yes.

Conclusion:

The Court held that the plaintiff water authority have standing. According to the Court, while the contamination did not reach or exceed the maximum contaminant level (MCL) for PCE set by New York and federal regulations, the MCL was only a regulatory standard which governed conduct in supplying water to the public and did not set a bar below which an injury cannot have occurred. Moreover, the MCL did not define whether an injury had occurred since contamination below that level could result in some injury, such as increased monitoring costs, and, here, plaintiff expended resources in its effort to address the widespread contamination, even at wells where the contamination had not risen to or exceeded the MCL. Anent the second issue, the Court held that the three-year limitations period under CPLR 214-c applied to the case. The Court noted that the PCE contamination was discovered in the wells more than three years prior to the commencement of the action. Moreover, the Court averred that the authority failed to raise a triable issue of fact as to whether an exception to the statute or tolling applied.