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From Products Liability Law Daily, March 11, 2019

New York drinking water provider sues Dow and Northrop Grumman to stop ongoing dioxane pollution

By Georgia D. Koutouzos, J.D.

The manufacturers allegedly knew that long-term groundwater contamination of water wells was the inevitable consequence of using their commercial and industrial products but nevertheless promoted and sold them without providing any warnings.

The public drinking water provider serving Nassau County, New York, is suing Dow Chemical Co., Northrop Grumman Corp., and others, asserting products liability and negligence claims related to the companies’ sale of products containing 1,4-dioxane without warning of its harm. According to the complaint, the defendants allegedly knew or should have known that the highly toxic/carcinogenic chemical inevitably would reach the groundwater and pollute the provider’s wells, and yet failed to provide adequate warnings or take any other precautionary measures to mitigate those hazards (Bethpage Water District v. Dow Chemical Co., March 7, 2019).

Serving approximately 33,000 residents and businesses in Nassau County, New York, the Bethpage Water District maintains eight production wells that draw groundwater from the Long Island aquifer system. Having determined that all of its wells are contaminated with 1,4-dioxane—a stabilizer for the chlorinated solvent trichloroethane ("TCA"), most commonly used as a degreaser for machined metal parts—the District filed suit against two groups of defendants: (1) manufacturers, distributors, retailers, and promoters of 1,4-dioxane and/or industrial products containing 1,4-dioxane that caused the contamination of all the District’s impacted wells ("supplier defendants"); and (2) entities related to the Northrop Grumman Corp. that disposed of and released substances containing 1,4-dioxane in the vicinity of the District’s service area, thereby causing 1,4-dioxane to migrate via groundwater and contaminate certain public drinking water supply wells within the District’s system ("Northrop Grumman defendants").

The complaint contends that the defendants knowingly and willfully manufactured, promoted, and/or sold products containing 1,4-dioxane to industrial facilities and consumers in Nassau County, when they knew or reasonably should have known that the harmful compound inevitably would reach groundwater, significantly pollute drinking water wells, render drinking water unusable and unsafe, and threaten the public health and welfare. Among the causes of action asserted in the lawsuit are strict products liability (defective design and failure to warn), negligence, public nuisance, trespass, and contribution to an imminent and substantial endangerment under the federal Resource Conservation and Recovery Act.

Defective design claim. As commercial designers, manufacturers, distributors, suppliers, sellers, and/or marketers of products containing 1,4-dioxane, the complaint asserts that the supplier defendants had a strict duty not to place into the stream of commerce a product that is unreasonably dangerous. The companies knew that third parties would purchase products containing the harmful substance and would use them without inspection for defects, the complaint maintains, arguing that the products purchased by third parties were used in a reasonably foreseeable manner and without substantial change in the condition of such products, and the supplier defendants knew or reasonably should have known that the use of their products in their intended manner would result in the spillage, discharge, disposal, or release of 1,4-dioxane onto land or into water.

The products containing 1,4-dioxane used in the vicinity of the District’s drinking water production wells were defective in design and unreasonably dangerous because, among other things: (1) 1,4-dioxane causes extensive and persistent groundwater contamination when it or products containing it are used in their foreseeable and intended manner; (2) 1,4-dioxane contamination in drinking water poses significant threats to public health and welfare; and (3) the supplier defendants failed to conduct and/or failed to disclose reasonable, appropriate, or adequate scientific studies to evaluate the environmental and potential human health effects of the pollutant.

Failure to warn. In addition, the complaint contends that the supplier defendants had a strict duty to warn against latent dangers resulting from foreseeable uses of their products that the companies knew or should have known about. Despite the known and/or reasonably foreseeable hazards to human health and welfare associated with the use of products containing 1,4-dioxane near the District’s drinking water production wells, the supplier defendants failed to provide adequate warnings of or take any other precautionary measures to mitigate those hazards. The companies failed to describe such hazards or to provide any precautionary statements regarding such hazards in the labeling of their products containing 1,4-dioxane or otherwise adequate to eliminate the dangers posed by their products’ normal and foreseeable use.

Negligence. The complaint also asserts that the supplier defendants owed a duty of care not to place into the stream of commerce a product that was in a defective condition and unreasonably dangerous to drinking water in the District’s public supply wells. The companies breached that duty by negligently designing, formulating, manufacturing, distributing, selling, supplying, and/or marketing such unreasonably dangerous products into the stream of commerce, including near the District’s service area, even when they knew or should have known about the dangers 1,4-dioxane posed to drinking water wells.

Furthermore, as the owners and/or operators of business(es) that managed, stored, used, transported, and disposed of toxic contaminants and solvents, the Northrop Grumman defendants owed a duty to use due care in the handling, control, use, transportation, and disposal of contaminants, including toxic and hazardous materials containing 1,4-dioxane. The companies breached that duty by negligently, carelessly, and/or recklessly handling, controlling, transporting, disposing of, and otherwise causing the release into the ground of toxic chemicals, including 1,4-dioxane.

Upon learning of the release of the contaminants, the Northrop Grumman defendants also owed a duty to act reasonably to remediate, contain, and eliminate the spills before the contaminants injured the District and its property and/or to act reasonably to minimize the damage to the District’s property. The companies breached that duty by failing to act to reasonably remediate, contain, and eliminate spills before they injured the District and/or to act reasonably to minimize the damage to its property.

Damages. Seeking to recover the substantial costs necessary to protect the public and restore its damaged drinking water supply wells, the District is demanding a jury trial and is seeking compensatory damages and all other remedies—including but not limited to all necessary funds to reimburse it for the costs of designing, constructing, installing, operating, and maintaining the treatment facilities and equipment required to remove the 1,4-dioxane from its drinking water wells, and all associated costs, and to ensure that the parties responsible for the drinking water contamination bear these expenses instead of the District and its ratepayers.

Furthermore, because the supplier and Northrop Grumman defendants acted knowingly, willfully, and with oppression, fraud, or malice, the District is requesting an award of punitive damages in an amount sufficient to punish the companies and that fairly reflects the aggravating circumstances alleged.

The case is No. 19-cv-1348.

Attorneys: Matthew K. Edling (Sher Edling LLP) for Bethpage Water District.

Companies: Bethpage Water District; Dow Chemical Co.; Ferro Corp.; Vulcan Materials Co.; Northrop Grumman Corp.; Northrop Grumman Systems Corp.

MainStory: TopStory ComplaintNewsStory ChemicalNews DesignManufacturingNews WarningsNews DamagesNews NewYorkNews

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