Suffolk County Water Authority v. Dow Chemical Co.

Appellate Division of the Supreme Court of New York, Second Department · Torts

Tortsstandingstatute of limitationstoxic contaminationproperty damagePCETCEDCE

Facts

SCWA operates public drinking water systems in Suffolk County and alleged that defendants were responsible for contamination of many of its wells with PCE and its degradation products TCE and DCE. Defendants sought summary judgment as to 115 wells where contamination did not reach the regulatory maximum contaminant level of 5 ppb, arguing SCWA lacked standing because the water remained potable. Defendants also sought summary judgment as to 151 wells where contamination had been detected before July 12, 2007, arguing those damages claims were untimely under CPLR 214-c. SCWA asserted that it had incurred monitoring and remediation-related costs even for wells below the MCL and argued either that CPLR 214-c did not apply or that multiple releases created timely claims.

Issue

Whether SCWA had standing to seek damages for contamination in wells where PCE levels remained below the regulatory maximum contaminant level, and whether claims concerning wells in which contamination was discovered more than three years before suit were time-barred under CPLR 214-c. Also, whether SCWA raised a triable issue under the two-injury rule or based on new wrongful releases.

Rule

A plaintiff has standing if it alleges an injury in fact different from that of the public at large and within the relevant zone of interests; a regulatory maximum contaminant level does not define the minimum threshold for legally cognizable injury. CPLR 214-c governs actions for damages for injuries to property caused by the latent effects of exposure to substances and runs from discovery of the injury or when it should have been discovered with reasonable diligence. Where CPLR 214-c applies, the continuous-wrong exception for damages is displaced, and the two-injury rule applies only if the later injury is separate, distinct, and qualitatively different from the earlier injury rather than an outgrowth, maturation, or complication of the original contamination.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Great Lakes Regional Water District in Erie, Pennsylvania, discovered traces of an industrial solvent in eight supply wells at 2 parts per billion, below the applicable regulatory maximum of 5 parts per billion. After the discovery, the district paid for additional sampling, tracking, and engineering review to address the contamination and then sued the solvent manufacturers for property damage.

The manufacturers move for summary judgment, arguing the district lacks standing because the water remained legally potable and saleable. How should the court rule?

Explanation. Standing exists where the plaintiff alleges an injury in fact different from the public at large and within the relevant zone of interests. The regulatory maximum is only a regulatory standard; it does not define the minimum threshold for legal injury. Contamination below that level may still cause compensable injury, including increased monitoring and related costs. Because the district expended resources responding to the contamination, summary judgment for lack of standing should be denied. (Derived from Suffolk County Water Authority v. Dow Chemical Co. (n.d.).)