In April 2020, the Town of East Hampton in eastern Long Island, N.Y., filed suit over PFAS contamination against the Village of East Hampton, a separate, smaller jurisdiction located in the Town. The Town alleges that the Village’s Fire Department caused PFOA and PFOS contamination on property owned by the Town that migrated to private wells. The Town also named the Village’s insurer, American Alternative Insurance Corporation, as an interested party in the suit. Town of East Hampton v. Incorporated Village of East Hampton, d/b/a East Hampton Fire Department, Docket No. 2_20-cv-01787 (E.D. N. Y. 2020). The Town of East Hampton is seeking injunctive relief and damages under Sections 107 and 113 of CERCLA and the citizen suit provisions of RCRA.
According to the complaint, the East Hampton Fire Department is operated by the Village of East Hampton and its use and storage of AFFF resulted in groundwater contamination on property owned by the Town. Reportedly, a majority of the residents in the Town obtain water from private drinking water wells and over 230 private wells had detections of PFOA or PFOS, with 10 of these wells above the EPA Health Advisory Limit of 70 ppt, and more than 75 wells above the MCL recommended by the N.Y. Drinking Water Quality Council of 10 ppt for PFOA and 10 ppt for PFOS. The N.Y. Department of Environmental Conservation (“NYDEC”) has required the Town of East Hampton to take action to provide residents with alternate drinking water and to investigate and address the PFAS contamination. The suit appears to be a mechanism for the Town to seek compensation from the insurer of the Village’s Fire Department.
According to the complaint, the Village of East Hampton obtained general liability and commercial umbrella policies that are potentially responsive to this claim. The Town alleges that while these policies include a pollution exclusion the exclusion does not apply to claims arising out of emergency operations conducted at properties not owned or leased by the Fire Department, Fire Department training operations and water runoff from the cleaning of equipment used in Fire Department emergency operations and therefore coverage should be available.
According to the Long Island newspaper Newsday, the Village of East Hampton was dismayed by the lawsuit.
