Case 2:17-cv-06982-JS-AYS Document 1 Filed 11/30/17 Page 1 of 28 PageID #: 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

SUFFOLK COUNTY WATER
AUTHORITY,
Complaint for a Civil Case
Plaintiff,
17-cv-6982
Case No. _______________

-againstTHE 3M COMPANY (F/K/A MINNESOTA
MINING AND MANUFACTURING CO.);
BUCKEYE FIRE EQUIPMENT
COMPANY; CHEMGUARD INC.; TYCO
FIRE PRODUCTS LP; and NATIONAL
FOAM, INC.,
Defendants.

Jury Trial Demanded

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Table of Contents
I.

Introduction ........................................................................................................................... 1

II. Parties ..................................................................................................................................... 3
III. Jurisdiction and Venue ......................................................................................................... 4
IV. Factual Allegations ................................................................................................................ 5
A. PFOA and PFOS, Their Chemical Characteristics, and Risk in Groundwater .................. 5
B. Defendants’ Production of PFOA/PFOS and Commercialization of AFFF ...................... 6
C. Defendants’ Knowledge of Threats Posed by PFOA and PFOS ....................................... 8
D. PFOS and PFOA Detected in the Affected Areas ........................................................... 10
E. Treatment of PFOA and PFOS ........................................................................................ 13
V. Causes of Action .................................................................................................................. 13
FIRST CAUSE OF ACTION
Strict Products Liability for Defective Design...................................................................... 13
SECOND CAUSE OF ACTION
Strict Products Liability for Failure to Warn ........................................................................ 16
THIRD CAUSE OF ACTION
Negligence ............................................................................................................................ 18
FOURTH CAUSE OF ACTION
Public Nuisance .................................................................................................................... 19
FIFTH CAUSE OF ACTION
Private Nuisance ................................................................................................................... 21
SIXTH CAUSE OF ACTION
Trespass................................................................................................................................. 22
VI. Prayer for Relief .................................................................................................................. 24
VII. Demand for Jury Trial ....................................................................................................... 25

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I.

Introduction
1.

Plaintiff Suffolk County Water Authority (“SCWA,” “the Authority,” or

“Plaintiff”) brings this action against 3M Company, Tyco Fire Products LP (successor-in-interest
to Ansul Co.), Chemguard Inc., Buckeye Fire Equipment Company, and National Foam, Inc.
(collectively, “Defendants”) to recover the substantial costs necessary to treat and remove the
contamination of its public drinking water wells by treating the water in those wells to eliminate
contamination caused and/or created by Defendants’ products; and to protect the public health,
safety, welfare, and the environment.
2.

Defendants manufactured, marketed, and sold aqueous film-forming foam

(“AFFF”), a firefighting product used to control and extinguish aviation, marine, fuel, and other
flammable liquid fires. AFFF contains perfluorooctanoic acid (“PFOA”) and/or perfluorooctane
sulfonic acid (“PFOS”), and/or contains the precursors of PFOS and PFOA.
3.

PFOA and PFOS are toxic, not easily biodegradable, persistent in the

environment, and pose a significant risk to human health and safety. PFOA and PFOS are
potential carcinogens associated with a variety of illnesses and considered particularly dangerous
for pregnant women and young children.
4.

Airports and bases operated by the U.S. Air Force and other branches of the

military have used AFFF and other materials containing PFOA and PFOS for decades for
firefighting and explosion drills. These sites have been linked to the widespread contamination of
surface and groundwater, as well as public drinking water wells, with PFOA, PFOS, and other
perfluorinated chemicals (“PFCs”) throughout the country.
5.

AFFF has been used for almost 50 years at the Francis S. Gabreski Airport and

the Gabreski Air National Guard Base in Suffolk County. During routine training exercises,

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AFFF has been sprayed directly on the ground, allowing PFOS/PFOA to travel to the
surrounding groundwater, causing contamination of various of SCWA’s water supply wells, in
various locations, in varying amounts, at various times.
6.

AFFF was also used for firefighting training activities at the Suffolk County

Firematics Training Facility in Yaphank until May 2016, when Suffolk County was notified that
New York State had classified the PFOA and PFOS in the foam as hazardous substances.
7.

Hawkeye Energy Plant, located in Greenport, is also a likely source of PFOS

contamination. As a facility using kerosene as its primary fuel type, Hawkeye Energy Plant
likely has utilized a foam fire extinguishing system, similar to or the same as the AFFF used in
airports.
8.

SCWA is responsible for providing potable water to approximately 1.2 million

Suffolk County residents. Various of SCWA’s wells have been contaminated by AFFF
manufactured, marketed, supplied, and/or sold by Defendants.
9.

Defendants knew or should have known that PFOS and PFOA are highly soluble

in water, extremely mobile, persistent, and very likely to contaminate drinking water wells and
present significant risks to human health and welfare if released in the environment.
10.

Nonetheless, Defendants manufactured, marketed, and/or sold AFFF with the

knowledge that PFOA and/or PFOS would be released into the environment in firefighting
training and rescue exercises and in firefighting emergencies.
11.

SCWA seeks to recover compensatory damages and all other remedies, including

but not limited to all necessary funds to reimburse the Authority for the costs of treating
contaminated water to remove Defendants’ products from its drinking water wells that have
been, and continued to be, contaminated by PFOA and/or PFOS, and all associated costs, and to

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ensure that the parties responsible for the drinking water contamination bear this expense, rather
than the Authority and its ratepayers.
II.

Parties
12.

Plaintiff Suffolk County Water Authority is a public drinking water provider

under the New York Public Authorities Law, Article 5, Title 4 (Sections 1074–1092). Operating
as a public benefit corporation since 1951, the Authority has grown to become one of the largest
groundwater suppliers in the nation, serving approximately 1.2 million customers. The Public
Authorities Law provides that SCWA, in carrying out its powers, purposes, and duties, acts in all
respects for the benefit of the people of the County of Suffolk and State of New York, for the
improvement of their health, welfare, and prosperity.
13.

Defendant 3M Company (“3M”) is a Delaware corporation with its principal

place of business in St. Paul, Minnesota. 3M does business throughout the United States,
including conducting business in New York. At all times relevant, 3M manufactured, marketed,
promoted, distributed, and/or sold AFFF containing PFOA and/or PFOS used to fight fires at
numerous military bases, airports, and other locations throughout the country.
14.

Defendant Tyco Fire Products, LP (“Tyco”) is a limited partnership organized

and existing under the laws of the State of Delaware, having its principal place of business at
One Stanton Street, Marinette, Wisconsin. Tyco manufactures the Ansul brand of products and is
the successor-in-interest to the corporation formerly known as The Ansul Company (“Ansul”)
(hereinafter, Ansul and/or Tyco as the successor-in-interest to Ansul will be referred to
collectively as “Tyco/Ansul”). At all times relevant, Tyco/Ansul manufactured, marketed,
promoted, distributed, and/or sold fire suppression products, including AFFF, that contained
fluorocarbon surfactants containing PFCs.

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15.

Defendant Chemguard Inc. (“Chemguard”) is a Wisconsin corporation with its

principal place of business in Marinette, Wisconsin. At all times relevant, Chemguard
manufactured, marketed, promoted, distributed, and/or sold AFFF that contained PFOA, PFOS,
and other toxic substances.
16.

Defendant Buckeye Fire Equipment Company (“Buckeye Fire”) is a North

Carolina corporation with its principal place of business in Kings Mountain, North Carolina. At
all times relevant, Buckeye Fire manufactured, marketed, promoted, distributed, and/or sold
AFFF that contained PFOA, PFOS, and other toxic substances.
17.

Defendant National Foam, Inc., also known as Chubb National Foam

(collectively “National Foam”), is a Delaware corporation with its principal place of business in
West Chester, Pennsylvania. At all times relevant, National Foam manufactured, marketed,
promoted, distributed, and/or sold fire suppression products, including AFFF, that contained
fluorocarbon surfactants containing PFCs.
III.

Jurisdiction and Venue
18.

This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) because the parties are

diverse and the amount in controversy exceeds $75,000.
19.

This Court has jurisdiction over Defendants because, based on information and

belief, each is a corporation or other business that has sufficient minimum contacts in New York
or otherwise intentionally avails itself of the New York market either through the distribution or
sale of AFFF products in the State of New York so as to render the exercise of jurisdiction over
it by this Court consistent with traditional notions of fair play and substantial justice.
20.

Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because the events,

omissions, and harms that are the basis of Plaintiff’s claims occurred in substantial part in this

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judicial district.
IV.

Factual Allegations
A.

PFOA and PFOS, Their Chemical Characteristics, and Risk in Groundwater

21.

Poly- and perfluroalkyl substances (collectively “PFAS compounds”) are terms

used to describe a group of organic flurorinated alkanes. PFAS compounds have been used for
decades to produce household and commercial products that are heat resistant, stain resistant,
long lasting, and water and oil repellant.
22.

There are six long-chain PFAS compounds, which are divided into two sub-

categories: (1) long-chain perfluoraoalkyl carboxylic acids (PFCAs) like PFOA, and
(2) perfluoroalkane sulfonates (PFSAs), including perfluorohexane sulfonate (PFHxS) and
PFOS. PFOS and PFOA compounds are the most toxic manmade chemicals of the PFAS family.
23.

PFOS and PFOA are characterized by a carbon-fluorine (“C-F”) bond that is one

of the strongest chemical bonds that occurs. PFOS and PFOAs are extremely persistent in the
environment and in the human body, and have the potential to bioaccumulate and biomagnify in
wildlife. Bioaccumulation appears to be related to the length of the C-F chain; as the size of the
chain increases, the compound becomes more bioaccumulative.
24.

PFOS and PFOA have unique characteristics that cause extensive and persistent

environmental contamination. Specifically, they are (1) mobile—that is, because they do not
adsorb (stick) to soil particles, they are readily transported through the soil and into groundwater
where they can migrate long distances; and (2) persistent—that is, they do not readily biodegrade
or chemically degrade in the environment or in conventional treatment systems for drinking
water. In short, once PFOS and/or PFOA are applied, discharged, disposed of, or otherwise
released onto land, those compounds migrate through the subsurface and into groundwater, resist

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natural degradation, and are difficult and costly to remove from water.
25.

PFOA and PFOS contamination presents a significant threat to public health and

welfare. PFOA is readily absorbed in the body after consumption or inhalation, and it
accumulates primarily in the blood stream, kidney, and liver. Studies have shown that exposure
to fluorochemicals that contain eight carbons or more (“C8”), such as PFOS and PFOA, may
cause testicular cancer, kidney cancer, and liver damage in adults, as well as developmental
effects to fetuses during pregnancy or to breast-fed infants, including low birth weight,
accelerated puberty, and skeletal variations. There have also been studies linking C8s with
autoimmune and endocrine disorders, elevated cholesterol, increased liver enzymes, decreased
vaccination response, thyroid disease, and pregnancy-induced hypertension and preeclampsia (a
serious pregnancy complication). These injuries may arise within months or years after exposure
to PFOS or PFOA.
26.

Under the U.S. Environmental Protection Agency’s (“EPA”) Guidelines for

Carcinogen Risk Assessment, there is “Suggestive Evidence of Carcinogenic Potential” for PFOS
and PFOA in humans.1
27.

PFOA enters the environment from industrial facilities that manufacture PFOA or

use PFOA to produce other products. It may also enter the environment when released from
PFOA-containing consumer and commercial products during their use and disposal.
B.

Defendants’ Production of PFOA/PFOS and Commercialization of AFFF

28.

3M began producing PFOA as part of a process called electrochemical

fluorination in 1947. This process results in a product that contains and/or breaks down into

1

U.S. Environmental Protection Agency Office of Water Health and Ecological Criteria Division,
Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA) (May 2016),
https://www.epa.gov/sites/production/files/2016-05/documents/pfoa_health_advisory_final-plain.pdf.

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compounds containing PFOA and/or PFOS.
29.

For most of the past 30 years, the primary manufacturer of PFOS and PFOA has

been 3M, through its supply of AFFF.
30.

In the 1960s, 3M and the U.S. Navy began developing Class B AFFF to be used

at airports and military bases for firefighting and explosion drills. AFFF was created to
extinguish Class B fires, which are fueled by flammable liquid, and particularly difficult to fight
using traditional methods of extinguishing fires. Class B fires cannot be safely extinguished with
water.
31.

AFFFs are synthetically formed by combining fluorine free hydrocarbon foaming

agents with highly fluorinated surfactants. When mixed with water, a solution forms producing
aqueous film that spreads across the surface of a hydrocarbon fuel. This film formation feature is
what provides the fire extinguishment.
32.

After its creation in the 1960s and entrance into the commercial market, AFFF

was utilized by the Department of Defense and the Air Force to extinguish fuel-based fires
during routine military drills. AFFF was also used in hundreds of airports and Air Force bases
across the country.
33.

Manufacturers other than 3M used a process called telomerization to produce

fluorosurfactants contained in their firefighting foams. Telomer-based foams do not contain or
degrade into PFOS, and are not made with PFOA, but may contain trace levels as a contaminant
of the manufacturing process. These telomere-based foams contain other PFAS, which have been
detected in SCWA wells south of the Francis S. Gabreski Airport. Discharges occurred at various
locations, at various times and in various amounts. Many of SCWA’s wells have been, and
continue to be, contaminated in varying amounts over time, causing Plaintiff significant injury

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and damage.
C.

Defendants’ Knowledge of Threats Posed by PFOA and PFOS

34.

Defendants sold AFFF that was used at Francis S. Gabreski Airport (the

“Airport”), formerly known as Suffolk County Airport, and the Gabreski Air National Guard
Base, formerly the Suffolk County Army Air Field.
35.

The New York Air National Guard (NYANG) leases runways, hangars, and other

facilities on the southwest side of the Airport and has utilized a 0.5-acre “Fire Training Area” for
decades. The Air Force, NYANG, and private agencies have long conducted exercises, including
firefighting and explosion training, where AFFF was sprayed directly on the ground, allowing
PFOS/PFOA to travel to the surrounding groundwater.
36.

At various times dating back to the 1970s, thousands of gallons of AFFF

concentrate have been stored and used at the Airport, leading to widespread contamination of
local groundwater and Plaintiff’s wells.
37.

Throughout the time AFFF containing PFOS and PFOA was used at the Airport,

the instructions, warning labels, and material safety data sheets that were provided with the
AFFF by the Defendants did not fully identify and notify customers, users, regulators, public
water suppliers, or the public concerning the health and environmental hazards of AFFF, which
Defendants knew or should have known existed.
38.

For decades, AFFF foam users did not know of PFOA and/or PFOS existence in

AFFF, and used AFFF foam as instructed by spraying AFFF foam directly on the ground during
fire training exercises. The use of AFFF to extinguish fires allowed PFOS and PFOA to escape
into the ground and migrate to surrounding public and private drinking wells.
39.

Defendants had known of these health and environmental hazards for years.

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40.

3M began conducting medical studies on PFOA in the early 1960s. In 1981, 3M

researchers found that ingestion of PFOA caused birth defects in rats, but continued
manufacturing the chemical and failed to disclose the study results.
41.

By the mid-1980s, 3M began a major program to review the handling of

fluorochemicals and determined that fluorochemicals could bioaccumulate.
42.

By at least 1993, defendants were aware that PFOA was linked to increased

cancer rates in PFOA-exposed humans.
43.

On May 16, 2000, 3M announced that it would phase out production of PFOS and

PFOA. On the day of 3M’s phase out announcement, an EPA internal memo stated: “3M data
supplied to EPA indicated that these chemicals are very persistent in the environment, have a
strong tendency to accumulate in human and animal tissues and could potentially pose a risk to
human health and the environment over the long term… [PFOS] appears to combine Persistence,
Bioaccumulation, and Toxicity property to an extraordinary degree.”2
44.

In response to pressure from the EPA, 3M began to phase out production of PFOS

and PFOA products in 2000.3 On May 16, 2000, 3M issued a news release falsely asserting that
“our products are safe,” citing the company’s “principles of responsible environmental
management” as the reason to cease production.4
45.

In 2002, 3M completed its phase out of PFOS-based AFFF.

2

EPA internal memo, “Phaseout of PFOS”( May 16, 2000) available at
http://www.chemicalindustryarchives.org/dirtysecrets/scotchgard/pdfs/226-0629.pdf.

3

See EPA Press Statement re: Phaseout of PFOS (May 16, 2000), available at
http://www.chemicalindustryarchives.org/dirtysecrets/scotchgard/pdfs/226-0629.pdf; see also 3M
Sustainability, Policies & Reports: 3M and Fluorochemicals, available at
http://www.3m.com/3M/en_US/sustainability-us/policies-reports/3m-and-fluorochemicals.

4

3M press release, “3M Phasing Out Some Of Its Specialty Materials” (May 16, 2000), available at
http://www.chemicalindustryarchives.org/dirtysecrets/scotchgard/pdfs/226-0641.pdf.

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46.

A timeline summary of 3M’s production and knowledge of the associated risks of

PFC-based AFFF is reflected in the following figure:

47.

In May 2016, the EPA issued a non-mandatory lifetime health advisory of 70

parts per trillion (“ppt”) for long-term exposure to PFOA and PFOS in drinking water.5
D.

PFOS and PFOA Detected in the Affected Areas

48.

The communities of Westhampton, Westhampton Beach, Quogue, North

Amityville, Bohemia, Stony Brook, and Hauppauge, Greenport, South Setauket, and Yaphank
are all located in Suffolk County (collectively, the “Affected Areas”). These communities are
located nearby and downgradient of the Airport, Gabreski Air National Guard Base (which is
part of the Airport), Suffolk County Firematics Training Facility, and Hawkeye Energy Plant.
Additionally, these communities receive their water from the SCWA-designated pump stations
and wells closest to their locations.
49.

The PFOS and PFOA levels found in SCWA wells are the result of AFFF usage.

5

EPA health advisory, “Drinking Water Health Advisory for Perfluorooctanoic Acid (PFOA)” (May
2016), available at https://www.epa.gov/sites/production/files/201605/documents/pfoa_health_advisory_final_508.pdf.

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50.

Plaintiff operates wells contaminated with PFOA and/or PFOS located nearby and

downgradient of the Airport and Gabreski Air National Guard Base. Additionally, two wells,
Wells S-117454 and S-117861, are located in Greenport near Hawkeye Energy Plant.
51.

The Hawkeye Energy Plant, located in Greenport, likely additionally contributed

to PFOA and PFOS contamination through its use of foaming fire extinguishers, similar to or the
same as AFFF. The Hawkeye Energy Plant is primarily a kerosene-fired plant, and AFFF is the
preferred means of oil firefighting.
52.

At no time did SCWA purchase, acquire, own, obtain, or otherwise bring to, use

or dispose of AFFF.
53.

In early 2016, New York urged the U.S. Environmental Protection Agency

(“EPA”) to acknowledge that PFOA contamination is a national problem that requires federal
standards.6
54.

In February 2016, Governor Cuomo created a Water Quality Rapid Response

Team (“WQRRT”), led by the New York State Department of Environmental Conservation
(“DEC”) and Department of Health (DOH), to quickly investigate water contamination reports
across New York and take corrective action to address these contamination issues. This team is
seen as a national model to research, identify and quickly address water contamination in
communities. The WQRRT has been working to identify and address drinking water issues
across the state, including sampling of public water and private wells around 25 facilities
suspected or known to have used PFCs.
55.

In April 2016, New York became the first state in the nation to regulate PFOA as

6

New York State Department of Environmental Conservation, Chemical and Pollution Control,
Perfluorinated Compounds (PFCs), available at http://www.dec.ny.gov/chemical/108831.html.

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a hazardous substance. The regulation requires proper storage and limited release to the
environment, and enabled the State to use its legal authority and resources of the State Superfund
program to advance investigations and cleanups of impacted sites. The Final Rule for PFOA and
PFOS became effective on March 3, 2017.
56.

In July 2016, the DEC gathered groundwater and soil samples at the Airport and

confirmed that the Gabreski Air National Guard Base is the primary source of PFOA and PFOS
contamination in many of SCWA’s wells.
57.

Later that month, Suffolk County issued a press release entitled “Water Quality

Advisory for Private-Well Owners in the Areas of Westhampton.”7 In this press release, Suffolk
County announced that PFCs were detected in public and private supply wells in the vicinity of
Gabreski Air National Guard Base and the Airport.
58.

On September 12, 2016, the DEC designated the Gabreski Air National Guard

Base as a Superfund site. The DEC found that the drinking water wells within the vicinity of the
Airport contained concentrations of PFOS and PFOA that exceeded the EPA’s drinking water
health advisory for PFOS and PFOA. The DEC called for action to be taken to reduce human
exposure to PFOS and PFOA in the water supplies.
59.

On April 27, 2017, the DEC designated the Suffolk County Firematics Training

Facility in Yaphank a Class 2 Superfund Site.
60.

On April 26, 2017, Governor Cuomo signed the Clean Water Infrastructure Act, a

$2.5 billion investment in drinking water infrastructure, clean water infrastructure, and water

7

Press Release, Suffolk County Gov’t, Water Quality Advisory for Private-Well Owners in Areas of
Westhampton, (Jul. 29, 2016), available at
http://www.suffolkcountyny.gov/SuffolkCountyPressReleases/tabid/1418/itemid/5177/amid/2954/waterquality-advisory-for-private-well-owners-in-areas-of-westhampton.aspx.

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quality protection across New York. The legislation requires all New York-based water systems
to test for PFOA and PFOS contamination.8
61.

In September 2017, Governor Cuomo announced his appointees for a 12-member

Drinking Water Quality Council tasked with ensuring all New Yorkers have access to safe and
clean drinking water. The Council’s initial responsibility is to recommend enforceable Maximum
Contaminant Levels (“MCLs”) for PFOA and PFOS as priority emerging New York
contaminants that remain unregulated by the federal government.9
E.

Treatment of PFOA and PFOS

62.

The most viable technologies to remove PFAS compounds from drinking water

are granular activated carbon treatment (“GAC”), reverse osmosis, and anion exchange. PFAS
compounds are often co-located with other contaminants amenable for removal by GAC for
treatment.
63.

SCWA has suffered injury and damages in various of its wells from the presence

of PFAS in the wells.
V.

Causes of Action
FIRST CAUSE OF ACTION
Strict Products Liability for Defective Design
64.

Plaintiff realleges each of the preceding paragraphs and incorporates each such

paragraph as if fully stated herein.

8

Press Release, New York State, Governor Cuomo Signs Legislation Investing $2.5 Billion in Clean
Water Infrastructure and Water Quality Protection (Apr. 26, 2017),
https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-investing-25-billion-clean-waterinfrastructure-and-water.
9
Press Release, New York State, Cuomo Announces Appointees to Drinking Water Quality Council to
Safeguard New York Drinking Water Supplies, (Sep. 22, 2017), available at
https://www.governor.ny.gov/news/governor-cuomo-announces-appointees-drinking-water-qualitycouncil-safeguard-new-york-drinking.

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65.

As commercial designers, manufacturers, distributors, suppliers, sellers, and/or

marketers of AFFF containing PFOA and PFOS, Defendants had a strict duty not to place into
the stream of commerce a product that is unreasonably dangerous.
66.

Defendants knew that third parties would purchase AFFF containing PFOA and

PFOS and use it without inspection for defects.
67.

AFFF containing PFOA/PFOS purchased or otherwise acquired (directly or

indirectly) from Defendants by third parties were applied, discharged, disposed of, or otherwise
released onto lands and/or water in the vicinity of Plaintiff’s drinking water production wells.
Such discharges occurred at various locations, at various times, and in various amounts.
68.

The AFFF containing PFOA/PFOS purchased by third parties was used in a

reasonably foreseeable manner and without substantial change in the condition of such products.
69.

Defendants knew or reasonably should have known that the use of AFFF

containing PFOA and PFOS in its intended manner would result in the spillage, discharge,
disposal, or release of AFFF onto land or into water.
70.

The AFFF containing PFOA and PFOS used in the vicinity of Plaintiff’s drinking

water production wells was defective in design and unreasonably dangerous because, among
other things:
a. PFOA and PFOS causes extensive and persistent groundwater
contamination when it, or products containing it, are used in their
foreseeable and intended manner.
b. PFOA and PFOS contamination in drinking water poses significant threats
to public health and welfare.

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c. Defendants failed to conduct and/or failed to disclose reasonable,
appropriate, or adequate scientific studies to evaluate the environmental
fate and transport and potential human health effects of PFOA and PFOS.
71.

At all times relevant to this action, AFFF containing PFOA and PFOS was

dangerous to an extent beyond that which would be contemplated by the ordinary consumer,
and/or the foreseeable risk of harm to public health and welfare posed by PFOA and PFOS
outweighed the cost to Defendants of reducing or eliminating such risk.
72.

Defendants knew or should have known about feasible alternatives to producing

AFFF without the use of PFCs, and the omission of such alternative designs rendered AFFF not
reasonably safe.
73.

As a direct and proximate result of the defects previously described many of

Plaintiff’s wells have been, and continue to be, contaminated with PFOA/PFOS in varying
amounts over time, causing Plaintiff significant injury and damage.
74.

As a direct and proximate result of Defendants’ acts and omissions as alleged

herein, Plaintiff has incurred, is incurring, and will continue to incur damages related to
PFOA/PFOS contamination of its wells in an amount to be proved at trial.
75.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of
drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard of the probable dangerous consequences of that
conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff

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requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.
76.

Defendants are strictly, jointly and severally liable for all such damages, and

Plaintiff is entitled to recover all such damages and other relief as set forth below.
SECOND CAUSE OF ACTION
Strict Products Liability for Failure to Warn
77.

Plaintiff realleges and reaffirms each and every allegation set forth in all

preceding paragraphs as if fully stated herein.
78.

As commercial distributors, sellers, manufacturers, suppliers, marketers, and/or

designers of AFFF, Defendants had a strict duty to warn against latent dangers resulting from
foreseeable uses of the product that Defendants knew or should have known about.
79.

Defendants knew that third parties would purchase AFFF containing PFOA and

PFOS and use it without inspection for defects.
80.

AFFF containing PFOA/PFOS purchased or otherwise acquired (directly or

indirectly) from Defendants by third parties was applied, discharged, disposed of, or otherwise
released at various locations, at various times, and in various amounts onto the lands and/or
water in the vicinity of Plaintiff’s drinking water production wells.
81.

The AFFF containing PFOA and PFOS purchased by third parties was used in a

reasonably foreseeable manner and without substantial change in the condition of such products.
82.

Defendants knew or should have known that the use of AFFF containing

PFOA/PFOS in its intended manner would result in the discharge, disposal, or release of
PFOA/PFOS onto land or into water.

16

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83.

The AFFF containing PFOA and PFOS used in the vicinity of Plaintiff’s drinking

water production wells was defective in design and unreasonably dangerous products for the
reasons set forth in Paragraphs 72 and 73 above.
84.

Despite the known and/or reasonably foreseeable hazards to human health and

welfare associated with the use of AFFF containing PFOA and PFOS in the vicinity of Plaintiff’s
drinking water production wells, including contamination of public drinking water wells with
PFOA/PFOS, Defendants failed to provide adequate warnings of, or take any other precautionary
measures to mitigate, those hazards.
85.

In particular, Defendants failed to describe such hazards or provide any

precautionary statements regarding such hazards in the labeling of their AFFF products
containing PFOA/PFOS or otherwise.
86.

As a direct and proximate result of Defendants’ failure to warn of the hazards

posed by disposal or release of AFFF containing PFOA/PFOS in the vicinity of subterranean
public drinking water wells that were, or reasonably should have been, known to them, PFOA
and/or PFOS contaminates many of Plaintiff’s wells in varying amounts.
87.

As a direct and proximate result of Defendants’ acts and omissions as alleged

herein, Plaintiff has incurred, is incurring, and will continue to incur damages related to PFOA
and/or PFOS contamination of its wells in an amount to be proved at trial.
88.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of
drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard to the probable dangerous consequences of that

17

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conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff
requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.
89.

Defendants are strictly, jointly and severally liable for all such damages, and

Plaintiff is entitled to recover all such damages and other relief as set forth below.
THIRD CAUSE OF ACTION
Negligence
90.

Plaintiff realleges and reaffirms each and every allegation set forth in all

preceding paragraphs as if fully stated herein.
91.

As commercial distributers, sellers, manufacturers, suppliers, marketers, and/or

designers, Defendants owed a duty of care to Plaintiff not to place into the stream of commerce a
product, AFFF, that was in a defective condition and unreasonably dangerous to drinking water
wells in the Affected Areas.
92.

Defendants breached this duty by negligently designing, formulating,

manufacturing, distributing, selling, supplying, and/or marketing such unreasonably dangerous
products into the stream of commerce, including in Suffolk County, even when they knew or
should have known of the dangers PFOA and PFOS posed to public drinking water wells.
93.

Among other things, Defendants breached this duty when they manufactured,

marketed, distributed, supplied, and sold AFFF even though they knew or should have known of
the dangers that PFOA and PFOS posed to drinking water wells. Defendants should have known
that the manner in which they were manufacturing, marketing, and selling AFFF containing
PFAS compounds, like PFOS and PFOA, would result in the contamination of the public water
wells in the Affected Areas as a result of the close proximity of these areas to Gabreski Air
National Guard Base, the Airport, and Hawkeye Energy Plant.

18

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94.

Defendants knew or should have known that exposure to PFOA and PFOS was

hazardous to the environment and to human health.
95.

As a direct and proximate result of Defendants’ acts and omissions as alleged

herein, Plaintiff has incurred, is incurring, and will continue to incur damages related to PFOA
and PFOS contamination of its wells in an amount to be proved at trial.
96.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of
drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard to the probable dangerous consequences of that
conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff
requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.
97.

Defendants are jointly and severally liable for all such damages, and Plaintiff is

entitled to recover all such damages and other relief as set forth below.
FOURTH CAUSE OF ACTION
Public Nuisance
98.

Plaintiff realleges and reaffirms each and every allegation set forth in all

preceding paragraphs as if fully stated herein.
99.

Plaintiff provides drinking water from its wells in the Affected Areas to a large

number of Suffolk County residents and businesses for drinking, bathing, cleaning, washing, and
other uses.
100.

Because Plaintiff is a public entity, the water it provides to these Suffolk County

residents and businesses is a public or commonly held resource. Members of the public have a

19

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right to have their water remain clean and potable, free of contamination by toxic man-made
compounds.
101.

Defendants’ acts and omissions, including their manufacture, sale, supply,

marketing, and defective design of, and/or failure to warn regarding PFOA and/or PFOS in
AFFF contaminated such wells, rendering water served from them unfit for human consumption
and a public health hazard.
102.

Consequently, Defendants substantially interfered with and caused damage to a

public or common resource that endangered public property, as well as the health, safety, and
comfort of a considerable number of persons. Such action creates, contributes to, or maintains a
public nuisance.
103.

As an owner of water production wells and purveyor of drinking water, Plaintiff

suffers injuries different in kind from the community at large because it relies entirely upon its
drinking water production wells for its public service functions.
104.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of
drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard to the probable dangerous consequences of that
conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff
requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.
105.

Defendants are jointly and severally liable for all such damages, and Plaintiff is

entitled to recover all such damages and other relief as set forth below.

20

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FIFTH CAUSE OF ACTION
Private Nuisance
106.

Plaintiff realleges and reaffirms each and every allegation set forth in all

preceding paragraphs as if fully stated herein.
107.

Plaintiff is the owner of land, easements, and water rights that permit it to extract

groundwater for use in its wells to provide drinking water to its customers.
108.

Defendants’ intentional, negligent, and/or reckless conduct, as alleged herein, has

resulted in substantial contamination of Plaintiff’s wells by PFOA and PFOS, possible human
carcinogens that cause adverse human health effects and render water undrinkable.
109.

Defendants’ manufacture, distribution, sale, supply, and marketing of AFFF

containing PFOA/PFOS was unreasonable because Defendants had knowledge of PFOA and
PFOS’s unique and dangerous chemical properties and knew that contamination of public
drinking water wells was substantially certain to occur, but failed to provide adequate warnings
of, or take any other precautionary measures to mitigate, those hazards.
110.

The contamination caused, contributed to, and/or maintained by Defendants

substantially and unreasonably interferes with Plaintiff’s property rights to appropriate, use, and
enjoy water from its wells in the Affected Area.
111.

Each defendant has caused, contributed to, and/or maintained such nuisance, and

is a substantial contributor to such nuisance.
112.

As a direct and proximate result of Defendants’ acts and omissions as alleged

herein, Plaintiff has incurred, is incurring, and will continue to incur damages related to PFOA
and PFOS contamination of its wells in an amount to be proved at trial.
113.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of

21

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drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard to the probable dangerous consequences of that
conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff
requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.
114.

Defendants are jointly and severally liable for all such damages, and Plaintiff is

entitled to recover all such damages and other relief as set forth below.
SIXTH CAUSE OF ACTION
Trespass
115.

Plaintiff realleges and reaffirms each and every allegation set forth in all

preceding paragraphs as if fully stated herein.
116.

Plaintiff owns and possesses its drinking water production system, including

drinking water production wells that extract groundwater in Suffolk County, New York.
117.

Plaintiff actually and actively exercises its rights to appropriate and use

groundwater drawn from its wells.
118.

Plaintiff did not give any Defendant permission to cause PFOA or PFOS to enter

its groundwater wells.
119.

Defendants knew or reasonably should have known that:
a. PFOA and PFOS have a propensity to infiltrate groundwater aquifers
when released to the environment;
b. they are mobile and persistent groundwater contaminants capable of
moving substantial distances within aquifers;
c. they are toxic to human health;

22

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d. and they are therefore hazardous to drinking water systems and human
health and welfare.
120.

Defendants manufactured, promoted, marketed, distributed, and/or sold AFFF

containing PFOA and PFOS, which Defendants knew or reasonably should have known would
virtually certainly be discharged and release toxic PFOA and PFOS into the ground and intrude
upon, contaminate, and damage Plaintiff’s possessory interest.
121.

Defendants’ willful conduct directly resulted in the placement of its product,

AFFF, on and in property owned by SCWA without permission or right of entry.
122.

Each Defendant is a substantial factor in bringing about the contamination of

Plaintiff’s wells, and each Defendant aided and abetted the trespasses and is jointly responsible
for the injuries and damage caused to Plaintiff.
123.

As a direct and proximate result of Defendants’ acts and omissions resulting in

PFOA and PFOS entering Plaintiff’s drinking water wells, Plaintiff sustained actual injuries and
damages related to the PFOA and/or PFOS contamination of its wells in an amount to be proved
at trial.
124.

Defendants knew it was substantially certain that their acts and omissions

described above would cause injury and damage, including PFOA and PFOS contamination of
drinking water wells. Defendants committed each of the above-described acts and omission
knowingly, willfully, and with oppression, fraud, and/or malice. Such conduct was performed to
promote sales of AFFF, in conscious disregard to the probable dangerous consequences of that
conduct and its reasonably foreseeable impacts on public health and welfare. Therefore, Plaintiff
requests an award of punitive damages in an amount sufficient to punish these Defendants and
that fairly reflects the aggravating circumstances alleged herein.

23

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125.

Defendants are jointly and severally liable for all such damages, and Plaintiff is

entitled to recover all such damages and other relief as set forth below.
VI.

Prayer for Relief
Plaintiff Suffolk County Water Authority prays for judgment against Defendants, jointly

and severally, awarding Plaintiff:
a.

Compensatory damages in an amount according to proof.

b.

Punitive damages in an amount to be determined at trial;

c.

Injunctive and equitable relief, including in the form of a fund to abate the
nuisance and trespass;

d.

All appropriate declaratory relief;

e.

Plaintiff’s costs in prosecuting this action, including reasonable attorneys’ fees,
court costs, expert fees, and other expenses of litigation;

f.

Pre-judgment and post-judgment interest; and

g.

All other relief this Court deems just, proper, and equitable.
///

24

 Case Document 1 Filed 11/30/17 Page 27 of 28 PagelD 27

VII. Demand for Jury Trial
Pursuant to Federal Rule of Civil Procedure 38, Plaintiff requests a trial by jury of all

claims asserted in this Complaint.

Dated: November 30, 2017 it ed,

  

 

 
 

Scot Martin

VICTOR M. SHER (pro hac vice application to be submitted)
Vic@sheredling.com

MATTHEW K. EDLIN 

matt@sheredling.com

KATIE H. JONES (pro hac vice application to be submitted)
katie@sheredling.com

SHER EDLING LLP

100 Montgomery St. Suite 1410

San Francisco, CA 94104

(628) 231-2500

SCOTT MARTIN
smartin@hausfeld.com
JEANETTE BAYOUMI
jbayoumi@hausfeld.com
HAUSFELD LLP

33 Whitehall St., 14th Floor
New York, NY 10004
(646) 357-1100

RICHARD S. LEWIS (pro hac vice application to be submitted)
rlewis@hausfeld.com

HAUSFELD LLP

1700 Street, NW, Suite 650

Washington, DC 20006

(202) 540-7200

KATIE R. BERAN (pro hac vice application to be submitted)
kberan@hausfeld.com

25

Case 2:17-cv-06982-JS-AYS Document 1 Filed 11/30/17 Page 28 of 28 PageID #: 28

HAUSFELD LLP
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
(215) 985-3270
LEW MELTZER
lmeltzer@meltzerlippe.com
THOMAS J. MCGOWAN
tmcgowan@meltzerlippe.com
LORETTA M. GASTWIRTH
lgastwirth@meltzerlippe.com
MELTZER, LIPPE, GOLDSTEIN
& BREITSTONE, LLP
190 Willis Avenue
Mineola, NY 11501
(516) 747-0300
Attorneys for Plaintiff
Suffolk County Water Authority

26

 Suffolk County Water Authority v. The 3M Company et al, Docket No. 2:17-cv-06982 (E.D.N.Y. Nov 30, 2017), Court Docket

General Information

Court

United States District Court for the Eastern District of New York;
United States District Court for the Eastern District of New York

Federal Nature of Suit

Real Property - Tort Product Liability[245]

Docket Number

2:17-cv-06982

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