Firm Continues Defense of Vibrantz in Water Contamination Litigation

April 2023 - The State of New Jersey and various related government agencies, funds and officials recently filed a complaint against HHR client Vibrantz Corporation (formerly Ferro Corporation) in the latest of a series of lawsuits alleging contamination of drinking water by the chemical 1,4-dioxane.

Since late 2017, Long Island water providers have filed a total of 28 complaints against Ferro and its co-defendants, The Dow Chemical Company and Vulcan Materials Company, alleging that their 1,4-dioxane products have contaminated the Long Island aquifer, and thus plaintiffs' drinking water wells.

Ferro produced 1,4-dioxane from 1969 until 2008, when the company sold its fine chemicals business. It sold the bulk of the 1,4-dioxane to industrial customers, who used it as a stabilizer for the chlorinated solvent 1,1,1-tricloroethane (TCA). 1,4-dioxane is also found as a by-product in many household goods, including detergents and shampoos. As a result, three of the 28 water providers have also sued Proctor and Gamble (P&G), as the manufacturer of Tide, and Shell Corporation, which produces a component used by P&G in manufacturing its detergents.

The U.S. Environmental Protection Agency has established a health advisory level of 35 parts per billion for 1,4-dioxane. There is no federal maximum contaminant level (MCL) for 1,4-dioxane in drinking water. In 2020, the New York State Department of Health set an MCL of 1 part per billion for 1,4-dioxane. New Jersey has not yet promulgated an MCL for 1,4-dioxane in drinking water, but the New Jersey Drinking Water Quality Institute, recommended a health-based drinking water MCL of 0.33 parts per billion, which is under consideration.

The New York plaintiffs allege that their water sources are contaminated with 1,4-dioxane due to spills and improper use and disposal of TCA, and accuse Ferro and its co-defendants of failing to warn consumers of how best to handle 1,4-dioxane and TCA. The plaintiffs also insist that the contamination can only be fixed through a costly treatment called an advanced oxidation process.

In each case, the plaintiffs have asserted the same tort claims against all the defendants: strict products liability for defective design, strict products liability for failure to warn, negligence, public nuisance and trespass.

The first-filed and largest 1,4 dioxane action, brought by the Suffolk County Water Authority in September 2017, alleges that over 280 wells in that water district are contaminated with the chemical. That first lawsuit is currently in expert discovery, while the remaining cases are in fact discovery.

In 2022, New York Governor Kathy Hochul signed two new bills into law. The first, on Oct. 5, expressly revived time-barred claims in water contamination actions that involve an “emerging contaminant,” defining 1,4-dioxane as such a contaminant. The second, on Dec. 16, purports to cut off the ability of a defendant in a water contamination lawsuit brought by a public water provider to reduce a damages award by the amount of any state grants that the water provider has received.

The Oct. 5 legislation was introduced by then-Senator James Gaughran, former Suffolk County Water Authority chairman.

The most recent complaint against Ferro, Dow and Vulcan was filed on March 23 by the State of New Jersey, claiming that the defendants are responsible for “1,4-dioxane and certain industrial and commercial products containing 1,4-dioxane” being used “at various locations throughout New Jersey, causing widespread contamination of the State's natural resources.” The New Jersey case, unlike the 28 New York cases, is a statewide action, broadly alleging contamination of the state’s water and other natural resources, not just its drinking water supplies.

Ferro was founded in Mayfield Heights, Ohio, in 1919 before becoming a global supplier of technology-based functional coatings and colorants. In 2022, Ferro merged with Prince Manufacturing Co. and Chromaflo Technologies to form Vibrantz, which manufactures specialty mineral and chemical additives, colorants and performance coatings. Vibrantz has approximately 5,000 employees across 65 worldwide manufacturing sites.

Robb Patryk leads the HHR team defending Vibrantz, which includes Fara Tabatabai, Amina Hassan, Eric Blumenfeld, Jennifer Suh and Raquel Gonoretzky.