Full opinion text
OPINION AND ORDER SCHEINDLIN, District Judge. I. INTRODUCTION This consolidated multi-district litigation comprises several putative class actions brought on behalf of private well-owners seeking relief from the contamination or threatened contamination of their wells. Although the allegations of each action are somewhat different, the common charge is essentially the same: defendants, petroleum companies doing business throughout the United States, knowingly caused the widespread contamination of groundwater as a result of their use of a gasoline additive known as methyl tertiary butyl ether (“MTBE”). Although certain named plaintiffs seek compensatory and/or punitive damages, the relief sought by the putative classes consists primarily of a court-supervised program of MTBE testing, monitoring, education, and, where appropriate, the provision of clean water and/or remediation. Now before this Court are defendants’ motions to dismiss. For the reasons set forth below, defendants’ motions are denied in part and granted in part. II. FACTUAL BACKGROUND A. MTBE MTBE is a chemical compound designed to increase the oxygen content of gasoline. It is produced from methanol and isobutyl-ene, a by-product of the gasoline-refining process. See MC ¶ 39. MTBE is highly soluble and travels faster and farther in water than other gasoline components. See id. ¶¶ 37, 48, 49. As a result, whenever MTBE is released into the environment it has the ability to infiltrate underground water reservoirs and contaminate wells drawing from underground aquifers. See id. ¶ 49. MTBE’s foul taste and odor render water unusable and unfit for human consumption. See id. ¶ 51. The chemical make-up of MTBE also allows it to persist in underground aquifers for decades at a time. See id. ¶ 50. MTBE is a known animal carcinogen that has been linked to many potential human health problems. See id. ¶ 54. The United States Environmental Protection Agency (“EPA”) has classified MTBE as a possible human carcinogen. See id. Every year over nine million gallons of gasoline with MTBE escape into the environment during transportation, storage, sale or use in the United States. See id. ¶ 56. Thousands of gallons also enter the ground from gas stations due to consumer overfills of gas tanks, as well as jobber overfills of underground storage tanks (“UST’s”). See id. ¶ 58. In addition, MTBE can reach the ground through rainfall. See id. ¶ 60. B. The Reformulated Gasoline Program In 1990, Congress established the Reformulated Gasoline Program (“RFG Program”) in section 211(k), 42 U.S.C. § 7545(k), of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq. The RFG Program was enacted to help reduce ozone forming volatile organic compounds (“VOC’s”) and emissions of toxic air pollutants. See 42 U.S.C. § 7545(k)(l). In furtherance of this purpose, the RFG Program requires the use of reformulated gasoline in the nine largest metropolitan areas with the most severe summertime ozone levels and other ozone non-attainment areas that opt into the program. See 42 U.S.C. § 7545(k)(6) and (10)(D). Section 7545(k)(l) directs the EPA, the agency charged with overseeing the RFG Program, to issue regulations requir[ing] the greatest reduction in emissions of ozone forming volatile organic compounds (during the high ozone season) and emissions of toxic air pollutants during the entire year achievable through the reformulation of conventional gasoline, taking into consideration the cost of achieving such emission reductions, any non air-quality and other air-quality related health and environmental impacts and energy requirements. 42 U.S.C. § 7545(k)(l). In contrast with conventional gasoline, reformulated gasoline is required to contain an increased chemical oxygen content, enabling the fuel to burn cleaner and thus reduce the emission of VOC’s. The RFG Program requires that reformulated gasoline consist of at least 2.0% oxygen by weight. See 42 U.S.C. § 7545(k)(2). The CAA also requires that gasoline contain 2.7% oxygen by weight during the wintertime in areas that are not in attainment for the NAAQS for carbon monoxide. See 42 U.S.C. § 7545(m). In order to meet the required oxygen level, gasoline manufacturers add oxygenates such as MTBE to the gasoline. See MC ¶ 40. Gasoline with MTBE has been certified by the EPA for use in the RFG Program pursuant to section 7545(k)(4) and MTBE is currently the oil industry’s “oxygenate of choice.” Id. ¶ 130. Today, MTBE comprises up to 15% of every gallon of gasoline sold in the designated non-attainment areas. See id. ¶ 131. C. Defendants’ Knowledge and Activities Defendants began manufacturing, distributing and selling gasoline containing MTBE in the late 1970’s. See id. ¶ 41. By the mid~1980’s, MTBE was in widespread use in high-octane gasoline. See id. ¶ 42. After the enactment of the RFG Program, defendants began adding MTBE to gasoline in much greater concentrations, typically 11 to 15%. See id. ¶ 43. 1. Defendants’ Knowledge of the Threat to Groundwater Caused by MTBE Plaintiffs allege that the defendants were aware or should have been aware of the threat to groundwater caused by adding MTBE to gasoline. Defendants were aware of specific incidents of MTBE groundwater contamination as early as 1980. See id. ¶¶ 66-70, 73-74. By 1984, defendants, including Exxon, Shell and Chevron, were exchanging information concerning MTBE contamination in Maryland, New York, and Rhode Island dating back to 1978. See id. ¶ 74. In March 1987, defendants became aware of MTBE contamination in six different locations along the eastern seaboard. See id. ¶ 75. In addition, defendants had knowledge of two major incidents in Liberty, New York and East Patchogue, New York, occurring respectively in 1988 and 1990. See id. ¶¶ 76-77, 79. Defendants were also cognizant of scientific studies describing the dangers of MTBE. In 1986, Peter Garrett and Marcel Moreau of the Maine Department of Environmental Protection authored an environmental report entitled Methyl Tertiary Butyl Ether as a Ground Water Contaminant (the “Garrett Report”), which detailed the threat posed to groundwater by MTBE and recommended that MTBE be banned as a gasoline additive, or at the very least, be stored in double-contained facilities. See id. ¶¶ 82-83. A draft of this report was circulated throughout the oil industry. See id. ¶ 84. On December 23, 1986, a staff employee with the Groundwater Technical Task Force (“GTTF”) forwarded the Garrett Report to its members, including representatives of Shell, Arco and Exxon, seeking their comments. See id. ¶ 86. The comments from the GTTF members culminated in a letter sent to the National Well Water Association, the organization which was to present the Garrett Report, disputing the Garrett Report’s findings and recommendations. See id. ¶ 87. While publicly disputing the findings of the Garrett Report, the plaintiffs allege that the defendants privately acknowledged the report’s validity. In a letter dated February 4, 1987, Arco Chemical, at the time a division of Arco, stated that it had no data refuting the findings of the Garrett Report. See id. ¶ 90. That same year, concerns regarding the dangers of MTBE were echoed in memoranda prepared by Mobil and Chevron. See id. ¶¶ 91-92. In 1992, Shell employees prepared a memorandum entitled the MTBE WHITE PAPER — the Impact of MTBE on Groundwater, which acknowledged that MTBE was nearly twenty-five times more soluble than benzene (another chemical component of gasoline), MTBE does not biodegrade in the subsurface environment, and the increased use of MTBE would lead to heightened concerns over the management of accidental gasoline releases in the future. See id. ¶¶ 94-95. Another Shell document dated June 1997 observed the difficulty in removing MTBE from ground water in comparison to other gasoline components. See id. ¶ 96. In May 1999, Chevron employees further discussed concerns relating to the use of MTBE in a report entitled Solving Problems From MTBE Contamination — It’s Not Just Regulating Underground Tanks. See id. ¶ 97. 2. Defendants’ Conspiracy to Mislead the EPA and the Public Although the defendants were aware of the dangers associated with MTBE, plaintiffs allege that the defendants conspired to mislead the EPA and the public in an effort to convince them of the desirability of increasing concentrations of MTBE in gasoline. In 1986, the federal Interagency Testing Committee (“ITC”) recommended that the EPA conduct testing of MTBE in order to assess MTBE’s health and environmental risks. See id. ¶ 100. The ITC invited written comments on this subject. See id. According to the plaintiffs, the defendants mobilized to convince the EPA that additional testing of MTBE was unnecessary. See id. ¶ 101. On or about December 12, 1986, Arco, speaking on behalf of and/or with the approval of the other defendants, responded to the ITC’s recommendation by discrediting the information relied upon by the ITC, and intentionally downplayed the risks associated with MTBE by stating that MTBE is only slightly soluble in water. See id. ¶ 102. At a public focus meeting held a few days later, Arco and Exxon made presentations supporting the industry position that additional medical testing was unnecessary. See id. ¶ 103. In early 1987, defendants formed the MTBE Committee for the purpose of addressing the environmental, health, safety, legislative and regulatory issues concerning MTBE. See id. ¶ 104. Members of the MTBE Committee included Amoco, Arco, Chevron, Citgo, Exxon, Shell, Sunoco, Texaco and Conoco. See id. ¶ 105. Defendants also formed the MTBE Technical Subcommittee in an effort to coordinate the oil industry’s response to EPA concerns relating to MTBE. See id. Plaintiffs allege that the defendants were not forthcoming in their responses to the EPA’s inquiries concerning MTBE. See id. ¶ 107. On February 27, 1987, the MTBE Committee provided information to the EPA representing that MTBE was only slightly soluble in water, potential environmental exposure to MTBE was low, and that MTBE had excellent biodegradation characteristics — all of which defendants knew to be false or misleading. See id. ¶¶ 107-08. In addition, the MTBE Committee submitted written comments to the EPA stating that there was no evidence that MTBE posed any significant risk of harm to public health or the environment. See id. ¶ 109. One year after successfully convincing the EPA that further testing of MTBE was unnecessary, the MTBE Committee disbanded. See id. ¶ 115. Plaintiffs also allege that the defendants misled the public. In April 1987, George Dominguez of the MTBE Committee gave a presentation at a Conference on Alcohol and Octane in which he withheld information relating to MTBE and stated that MTBE gasoline spills have been dealt with effectively. See id. ¶ 124. In 1994, the API responded to an article raising questions about the environmental and health benefits of MTBE by stating that there was no basis to question the continued use of MTBE. See id. ¶ 125. In an April 1996 pamphlet distributed by the Oxygenated Fuels Association (“OFA”), an alleged agent of the defendants, the OFA expressed confidence that federal regulations and industry practices made MTBE contamination a thing of the past and, in fact, suggested that any MTBE groundwater contamination may provide a public service, as it “can serve as an early indicator of gasoline contamination in groundwater, triggering its cleanup and remediation, and limiting the probability of harm from the usual constituents of gasoline.” Id. ¶¶ 126-27. D. The Effects of Adding MTBE to Gasoline The United States Geological Survey (“USGS”) has reported that MTBE is the second most frequently detected chemical in groundwater in the United States. See id. ¶ 139. According to a report by a special EPA Blue Ribbon Panel, MTBE is a “threat to the nation’s drinking water resources”, has “caused widespread and serious contamination” of the nation’s groundwater, and has been found in 21% of ambient groundwater tested in non-attainment areas where MTBE is used. See id. ¶ 145. In October 1998, the state of Maine issued a report presenting the results of tests taken from 951 randomly selected private wells. See id. ¶ 144. MTBE was detected in 15.8% of the wells sampled and 1.1% of the wells sampled had MTBE levels exceeding Maine’s drinking water standard. See id. In New York, MTBE has been found in drinking water at levels near or above New York’s safe drinking water standard in twenty-four different towns. See id. ¶ 140. In 1997, the USGS found MTBE in 125 of 1100 private wells randomly tested in New York, three of which had concentrations in excess of New York’s safe drinking water standard. See id. ¶ 141. In July 1999, the New York State Department of Health randomly tested water from 111 private wells, many of which were located within a half-mile of a gas station. See id. ¶ 142. The results of these tests showed 27% of these wells to be contaminated with detectable levels of MTBE; 10% had detectable levels of MTBE exceeding the advisory level set by the EPA; and 3% had detectable levels of MTBE exceeding New York’s safe drinking water standard. See id. According to the plaintiffs, government officials have verified MTBE contamination of hundreds of private wells and the State has records of approximately 1000 sites where tests of water, samples show levels of MTBE in excess of New York’s safe drinking water standard. See id. ¶ 81. III. THE MDL ACTIONS The MDL actions currently before this Court are: Berisha and O’Brien v. Amerada Hess Corp., et al., No. 00 Civ. 1898 (‘Berisha”), La Susa v. Amerada Hess Corp., et al., No. 00 Civ. 1898 (“La Susa”); England v. Atlantic Richfield Co., et al., No. 00 Civ. 7729 (“England”); Young v. Exxon Mobil Corp., et al., No. 01 Civ. 704 (“Young”); and Berrian v. Amerada Hess Corp., et al., No. 01 Civ. 1076 (“Berrian”). Each action is briefly discussed below. A. Berisha Donna Berisha and Robert O’Brien originally filed a Class Action Complaint against the defendants in the Supreme Court of the State of New York, County of New York. On March 10, 2000, Texaco removed the action to this Court pursuant to 28 U.S.C. §§ 1331 and 1334. Subsequent to the status conference held on January 3, 2001, Berisha and O’Brien severed their individual claims from the putative class action and filed and served a Second Amended Complaint (“Berisha 2d Am. Compl.”) on behalf of themselves as individuals, seeking both damages and in-junctive relief. The defendants currently named in the Berisha action include Arco, BP Corp., Citgo, Chevron, Exxon-Mobil, Shell, Shell Oil, Texaco Refining, Texaco, Amerada Hess, El Paso, Motiva, Sunoco, Valero, Tosco, United Refining and Does 1-100. Both Berisha and O’Brien are residents of New York and owners of property containing private water wells. See Berisha 2d Am. Compl. ¶¶ 4.1.a., 4.1.b. In June 1999, tests of water samples taken from Berisha’s well showed her well to be contaminated with MTBE at a concentration of 9.4 parts per billion (“ppb”). See id. ¶ 4.1.a. In April 1997, tests done on O’Brien’s well indicated that his well was contaminated at a concentration of 75 ppb. See id. ¶ 4.1.b. As a result of this contamination, Berisha and O’Brien allege that their properties have been devalued. See id. ¶¶ 4.1.a., 4.1.b. They further assert that the MTBE contamination was caused by defendants’ conduct. See id. B. La Susa Due to the severance of Berisha and O’Brien’s claims, Ron La Susa became the sole representative plaintiff for the putative class in the original New York action. Plaintiffs filed a Second Amended Class Action Complaint (“La Susa 2d Am. Compl.”) reflecting this change. The defendants currently named in the La Susa action include Arco, BP Corp., Citgo, Chevron, Exxon-Mobil, Shell, Shell Oil, Texaco Refining, Texaco, Amerada Hess, El Paso, Motiva. Sunoco, Valero, Tosco, United Refining and Does 1-100. La Susa is a resident of Wappingers Falls, New York. See La Susa 2d Am. Compl. ¶ 4.1. Unlike Berisha or O’Brien, La Susa’s well has not been tested for the presence of MTBE. See id. La Susa alleges that defendants’ conduct has placed his well at risk for contamination. He seeks to represent a class of well owners in New York whose properties, while allegedly at risk for contamination, have not yet been tested for MTBE — the “non-test” plaintiffs. C. England On October 10, 2000, the Judicial Panel on Multi-District Litigation (“J.P.M.L.”) issued an order pursuant to 28 U.S.C. § 1407, transferring the England action to this Court from the District Court for the Southern District of Illinois. The plaintiffs in this action are: David England and Rhonda Aylward, residents of Illinois who own wells that have tested positive for MTBE; Claudia Christiansen, a resident of California and owner of a contaminated well; and James Bauer and Rheas Susan McMannis, residents of Illinois whose wells, while tested for MTBE, have not been found to be contaminated. See England Am. Compl. ¶¶ 4.1-4.4. The defendants currently named in the England action include Arco, BP Corp., Amoco, Cit-go, Conoco, Chevron, Exxon-Mobil, Equi-lon, Phillips and Shell. England, Christiansen and Aylward seek to represent a class of private well owners in the states of California, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Missouri, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Texas, Wisconsin and Virginia, whose wells have tested positive for MTBE. Bauer and McMannis seek to represent a class of well owners in these same states whose wells, while tested, have not yet been found to be contaminated with MTBE — the “non-detect” plaintiffs. D. Young On January 24, 2001, the J.P.M.L. transferred the Young action to this Court from the District Court for the Middle District of Florida. The named plaintiff in this action is Rebecca Young, a resident of Florida and owner of a private well. Young has filed a Third Amended Complaint (“Young 3rd Am. Compl.”) in this action and seeks to represent a class of private well owners in Florida. Tests of water samples from Young’s well show MTBE contamination at a concentration of 440 ppb. See Young 3rd Am. Compl. ¶ 4.1. The defendants currently named in the Young action include Arco, BP Corp., Amoco, Citgo, Conoco, Chevron, Exxon-Mobil, Equilon, Shell, Texaco, Texaco Refining, Amerada Hess, Motiva and Does 1-100. E. Berrian The Berrian action was filed in this Court on March 2, 2001. The named plaintiffs, Colleen and Robert Berrian, Barbara and James Hayes, and Felicia Ritters, are all residents of Hyde Park, New York whose wells have tested positive for MTBE. See Berrian Amended Complaint (“Berrian Am. Compl.”) ¶ 0.2. The defendants currently named in the Berri-an action include Arco, BP Corp., Amoco, Citgo, Chevron, Exxon-Mobil, Equilon, Phillips, Shell, Shell Oil; Texaco, Texaco Refining, El Paso, Amerada Hess, Sunoco. Motiva, Tosco, United Refining, Valero and Does 1-100. Plaintiffs in this action seek to represent a class of private well owners in New York whose wells have been found to be contaminated with MTBE. IV. LEGAL STANDARD To properly rule on a Rule 12(b)(6) motion, a court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor. See ICOM, 238 F.3d at 221. “At the Rule 12(b)(6) stage, ‘[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.’ ” Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998)). The task of the court is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Sims, 230 F.3d at 20 (quotation marks and citation omitted). Therefore, dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where “ ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’ ” ICOM Holding, 238 F.3d at 221 (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999)). V. DISCUSSION The plaintiffs set forth seven causes of action in the Master Complaint: Count I— strict liability for design defect; Count II — failure to warn; Count III — deceptive business acts and practices in violation of section 349 of New York’s General Business Law (“GBL § 349”); Count TV-public nuisance; Count V — negligence; Count VI — breach of notification duty under the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601 et seq.; and Count VII — conspiracy to market an unsafe product. Defendants assert that plaintiffs’ state law claims must be dismissed on numerous grounds. Each of these grounds is discussed in turn. A. Standing Constitutional standing “is the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court defined the three constitutional requirements that plaintiffs must satisfy in order to establish standing. First, the plaintiffs must have suffered an injury-in-fact — an injury that is “concrete and particularized” and is “actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (quotation marks and citations omitted). Second, the injury must be fairly traceable to the challenged action. See id. Third, it must be likely, not just possible, that the injury will be redressed by a favorable ruling of the court. See id. at 561, 112 S.Ct. 2130. These three requirements all share a common goal — to ensure that the judiciary, and not another branch of government, is the appropriate forum in which to address a plaintiffs complaint. See Allen v. Wright, 468 U.S. 737, 751-52, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Although the plaintiffs bear the burden of establishing these elements, see Lujan, 504 U.S. at 560, 112 S.Ct. 2130, the determination of whether Article III standing exists must comport with the “manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130. Thus, when standing is challenged on the basis of the pleadings, a court is required to “ ‘accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’” United States v. Vazquez, 145 F.3d 74, 81 (2d Cir.1998) (quoting Warth, 422 U.S. at 501, 95 S.Ct. 2197). Defendants argue that La Susa, Bauer and McMannis — the “non-test” and “non-deteet” plaintiffs — have not alleged a sufficient injury-in-fact to acquire Article III standing. Because La Susa, Bauer and McMannis have not alleged that their wells are contaminated with MTBE, to determine whether these plaintiffs have pled an injury-in-fact, the question this Court must answer is: are plaintiffs’ allegations sufficient to show that La Susa, Báuer and McMannis are faced with a present threat of imminent harm? Defendants argue that this question must be answered in the negative, and accordingly, the Court must dismiss the claims of these plaintiffs for lack of standing. 1. Imminent Harm While imminence, by its very definition, is “somewhat of an elastic concept,” it is bound by the purpose of Article III: to ensure that the “alleged injury is not too speculative.” Lujan, 504 U.S. at 564 n. 2, 112 S.Ct. 2130; see also Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 122 (3d Cir.1997) (“The imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms.”); Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C.Cir.1994) (“[T]he central question is the immediacy [of injury] ... for the underlying purpose of the imminence requirement is to ensure that the court in which suit is brought does not render an advisory opinion in a case in which no injury would have occurred at all.”) (quotation marks and citation omitted). As such, mere “[ajllegations of possible future injury do not satisfy the requirements of Article] III.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). However, an allegation of a threatened injury that is “certainly impending” is sufficient to establish an injury-in-fact, and does meet the necessary constitutional threshold. See id.; see also Comsat Corp. v. Federal Communications Comm’n, 250 F.3d 931, 936 (5th Cir.2001) (“A threatened injury satisfies the injury in fact requirement so long as that threat is real, rather than speculative”). Because distinguishing between a threatened injury satisfying the injury-in-fact requirement and a “speculative” or “hypothetical” injury is a matter of degree, each case must be considered on an individual basis. See Alliance of American Insurers v. Cuomo, 854 F.2d 591, 595-96 (2d Cir.1988). A review of plaintiffs’ allegations reveals that La Susa, Bauer, and McMannis have not alleged a present threat of imminent harm. 2. Bauer and McMannis — The “Non-Detect” Plaintiffs Both Bauer and McMannis are residents of Madison, Illinois who own private wells. See England Am. Compl. ¶ 4.4. To establish a present threat of imminent harm, Bauer and McMannis rely on general allegations concerning the chemical characteristics of MTBE and the widespread MTBE contamination of groundwater throughout the country. Plaintiffs allege that the defendants are continually adding MTBE to gasoline and “today, most if not all gasoline pumped in the RFG areas of the Affected States is laced with high concentrations (11 to 15%) of MTBE.” MC ¶ 135. They further allege that each year more than nine million gallons of gasoline escape during transportation, storage, sale or use in the United States, and thousands more gallons enter the soil from consumer overfills of automobile gas tanks and jobber overfills. See id. ¶¶ 56, 58. Plaintiffs also allege that MTBE reaches the ground through rainfall. See id. ¶ 60. MTBE has enhanced solubility in water and chemical attraction to water molecules, and thus whenever gasoline with MTBE is released into the environment, “MTBE races to underground water reservoirs, spreading faster and farther than other chemical components contained in gasoline [and] contaminating wells that draw from affected underground aquifers.” Id. 1149. MTBE can also persist in underground aquifers for many decades. See id. ¶ 50. In addition, the USGS has reported that MTBE is the second most frequently detected chemical in groundwater in the United States, see id. ¶ 139, and the report of the EPA Blue Ribbon Panel states that MTBE is a “threat to the nation’s drinking water resources”, has “caused widespread and serious contamination” of the nation’s groundwater, and has been found in 21% of ambient groundwater tested in non-attainment areas where MTBE is used. See id. ¶ 145. Notwithstanding the somewhat alarming nature of these general ahegations, they are insufficient to demonstrate a “clearly impending” harm directed towards Bauer and McMannis. A court must distinguish between a threat that “ ‘may’ pose an imminent endangerment and a threat that is ‘certainly impending.’ ” Citizens for a Better Env’t v. Caterpillar, Inc., 30 F.Supp.2d 1053, 1064 (C.D.Ill.1998). Tests done on water samples taken from Bauer and McMannis’ wells have shown no MTBE contamination, and there are no allegations of any known releases of gasoline containing MTBE occurring near their residences. Further, the allegations do not contain any statistics pertaining to MTBE detection rates for private wehs in Madison County or Illinois in general. In addition, Madison County is not a designated area participant in the RFG Program, and ethanol, not MTBE, is the primary oxygenate used in the Midwest. Because a “federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing,” see Whitmore, 495 U.S. at 155, 110 S.Ct. 1717, Bauer and McMan-nis’s claims must be dismissed. 3. La Susa — The “Non-Test” Plaintiff La Susa is an owner of a private well located in the town of Wappingers Falls, Dutchess County, New York. See La Susa 2d Am. Compl. ¶ 4.1. Wappingers Falls is an “opt-in” participant in the RFG Program. In addition to the general allegations outlined above, La Susa attempts to rely on New York specific allegations to establish a present threat of imminent harm. La Susa alleges that MTBE accounts for nearly 95% of the oxygenates used in New York, and MTBE consumption statewide is between 17,500 to 21,500 barrels per day. See MC ¶ 136. La Susa further alleges that MTBE has been found in drinking water at levels near or above New York’s drinking water standard in twenty-four towns throughout the State. See id. ¶ 140. The allegations also cite to random statistical studies concerning MTBE detection rates for private wells in New York. For example, in 1997, the USGS found MTBE in 125 of 1100 private wells tested in New York, approximately 11.4%; however, only three of the contaminated wells had concentrations in excess of New York’s safe drinking water standard. See id. ¶ 141. In July 1999, the New York State Department of Health tested water from 111 private wells, most of which were located within a half-mile of a gas station. See id. ¶ 142. While the results of these tests showed 27% of these wells to be contaminated with detectable levels of MTBE, only 10% had detectable levels of MTBE exceeding the advisory level set by the EPA, and 3% had detectable levels of MTBE exceeding New York’s safe drinking water standard. See id. In addition, according to the plaintiffs, the USGS has detected MTBE in over 20% of aquifers tested in places, like New York, where high MTBE content gasoline is used, see id. ¶ 141, and New York officials have verified MTBE contamination of hundreds of private wells. See id. ¶ 81. The State also has records of approximately 1000 sites where tests of water samples show levels of MTBE in excess of New York’s safe drinking water standard. See id. Although the above allegations indicate that there is some chance that La Susa’s well may be, or may become, contaminated in the future, “[fjederal jurisdiction cannot lie if the alleged injury is merely ‘an ingenious academic exercise in the conceivable.’ ” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir.2000) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). The standard that must be applied is “certainly impending”, and even accepting all of the above allegations as true, they are insufficient to meet this requirement. The line of environmental contamination cases relied upon by the plaintiffs do not support a contrary result. Unlike La Susa, the plaintiffs in the environmental contamination cases were either proximately located to, or had a direct connection to, an alleged area of contamination on or near an identified release site. La Susa has not alleged that his well is proximately located to an identified release of gasoline containing MTBE. Instead, he essentially asks this Court, based on the allegations summarized above, to find that every well owner in New York is under a present threat of imminent harm. To do so, however, would violate the case and controversy requirement and defeat the purpose of Article III — to ensure that the federal courts adjudicate only those disputes which are appropriately resolved through the judicial process. See Allen, 468 U.S. at 752, 104 S.Ct. 3315. For the reasons stated above, the claims of La Susa, Bauer and McMannis are dismissed for lack of standing. B. Preemption The Supremacy Clause of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.; see also Gibbons v. Ogden, 22 U.S. 1, 211, 9 Wheat. 1, 6 L.Ed. 23 (1824); McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 427, 4 L.Ed. 579 (1819). Although seemingly a “relatively clear and simple mandate”, determining whether Congress has preempted state action in a particular area often leads to considerable debate. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, -, 121 S.Ct. 2404, 2414, 150 L.Ed.2d 532 (2001). Federal law may displace state law where: (1) Congress expressly preempts state law — express preemption; (2) Congress has established a comprehensive regulatory scheme in the area effectively removing the entire field from the state realm — implied or field preemption; or (3) where it is impossible for a private party to comply with both state and federal requirements or the state law is an obstacle to the achievement of federal objectives — conflict preemption. See English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990); see also Leipart v. Guardian Indus., Inc., 234 F.3d 1063, 1066 (9th Cir.2000); Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 601 (5th Cir.2000); Bedford Affiliates v. Sills, 156 F.3d 416, 426 (2d Cir.1998). Defendants assert that plaintiffs’ state law claims are both expressly and conflict preempted by the pervasive scheme of federal clean air laws and regulations. Each of defendants’ arguments is addressed in turn. 1. Express Preemption Section 7545(c)(4), states, in relevant part: [N]o State (or political subdivision thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive in a motor vehicle or motor vehicle engine.... 42 U.S.C. § 7545(c)(4)(A). Because plaintiffs’ claims involve powers that lie at the heart of the states’ traditional police powers — the health and safety of its citizens, see Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Exxon Mobil Corp. v. United States Envtl. Prot. Agency, 217 F.3d 1246, 1255 (9th Cir.2000), it is assumed that plaintiffs’ claims “ ‘[a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Lorillard, 533 U.S. at -, 121 S.Ct. at 2414 (quoting California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). To determine whether plaintiffs’ claims fall within the scope of this provision, the Court must look to the “[congressional purpose”, which is the “ ‘ultimate touchstone’ of our inquiry.” Lorillard, 533 U.S. at -, 121 S.Ct. at 2414 (quoting Cipollone, 505 U.S. at 516, 112 S.Ct. 2608). In addition, the scope of the preemption provision must “give effect to a reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Lorillard, 533 U.S. at -, 121 S.Ct. at 2441 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part). A review of the text of the CAA’s preemption provision, as well as the CAA’s purpose and legislative history, does not support defendants’ position. The purpose of the CAA is to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1). The RFG Program was enacted to further this purpose. See Oxygenated Fuels Assoc. v. Pataki, 2001 WL 958793, at *1, 158 F.Supp.2d 248 (N.D.N.Y.2001); see also American Petroleum Inst. v. United States Envtl. Prot. Agency, 52 F.3d 1113, 1119 (D.C.Cir.1995) (finding that “[t]he sole purpose of the RFG Program is to reduce air pollution”). The text of the CAA’s preemption provision specifically limits its reach, stating that no State “may prescribe or enforce, for purposes of motor vehicle emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive.... ” 42 U.S.C. § 7545(c)(4) (emphasis added). This limitation is consistent with the purpose of the CAA and RFG Program. Here, plaintiffs’ claims are not brought for purposes of regulating motor vehicle emissions control, they concern groundwater contamination caused by spills and leakage of gasoline containing MTBE, and are therefore outside the scope of the preemption provision. See Oxygenated Fuels, 2001 WL 958793, at *3-4, 158 F.Supp.2d 248. Further, while members of Congress may have anticipated that MTBE would be used to meet the oxygenate requirements, as correctly noted by the court in Oxygen ated Fuels, the legislative history of the 1990 CAA amendments indicates that Congress, through the RFG Program, sought to reduce harmful vehicle emissions in the “larger context of market forces, health and environmental impacts, regional priorities, technological feasibility and other considerations.” Id. 2001 WL 958793 at*5,. 158 F.Supp.2d 248. Indeed, Congress expected that oxygenates would compete in the marketplace and “preventing a state from [regulating] an oxygenate which it believes threatens its groundwater appears more likely to defeat rather than advance the goals of Congress and [the] EPA....” Id. 2001 WL 958793, at *6 n.4, 158 F.Supp.2d 248. In arguing that plaintiffs’ claims fall within the scope of the preemption provision, defendants rely on the Supreme Court’s decision in Lorillard, supra. There, the Court held that a Massachusetts regulation prohibiting advertising of cigarettes within 1000 feet of a public playground or school either outdoors or at a point of sale below five feet from the floor of a retail establishment was preempted by the express preemption provision of the Federal Cigarette Labeling and Advertising Act (“FCLAA”), codified at 15 U.S.C. § 1334(b). See Lorillard, 533 U.S. at -, 121 S.Ct. at 2419. Section 1334(b) states that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of ... cigarettes .... ” The State argued that the regulations were not expressly preempted because they targeted youth exposure and were not “based on smoking and health.” After reviewing the legislative history of the FCLAA and determining that the phrase “based on smoking and health” has a broad meaning, the Court rejected the State’s argument, finding that “[a]t bottom, the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health.” Id. at 2418. In addition, the Court rejected the State’s argument that the regulations were not preempted because they sought to regulate the location and not the content of advertisements, finding that the distinction was illusory, as the regulations targeted smoking and were motivated by health concerns. See id. at 2418-2420. Defendants’ reliance on Lorillard is misplaced. Here, plaintiffs’ claims concern the contamination, or threatened contamination, of groundwater caused by the use of MTBE. This concern is not “intertwined” with the primary concern of the CAA and the RFG Program — the concern over and protection of our air resources. In addition, the text of the FCLAA’s preemption provision uses very broad language. It prohibits state laws from imposing requirements or prohibitions with respect to the advertising or promotion of cigarettes “based on smoking and health.” 15 U.S.C. § 1334(b). In contrast, the CAA’s preemption provision specifically limits its scope to state requirements that proscribe or enforce any control or prohibition respecting any characteristic or component of a fuel or fuel additive “for purposes of motor vehicle emission control ” 42 U.S.C. § 7545(c)(4)(A) (emphasis added). Further, plaintiffs’ claims are not motivated by air pollution concerns, nor does the legislative history of the CAA indicate that Congress intended section 7545(c) to be interpreted beyond its literal meaning. As the United States Supreme Court has held, [t]he principles of federalism and respect for state sovereignty that underlie the Court’s reluctance to find pre-emption where Congress has not spoken directly to the issue apply with equal force where Congress has spoken, though ambiguously. In such cases, the question is not whether Congress intended to pre-empt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress’ language. Cipollone, 505 U.S. at 533, 112 S.Ct. 2608 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part) (emphasis deleted). Reading section 7545(c)(4) to preempt state law claims concerning the contamination of groundwater caused by the use of MTBE would be contrary to the well established precedent requiring courts to construe preemption provisions narrowly. See Medtronic, 518 U.S. at 485, 116 S.Ct. 2240. Accordingly, plaintiffs’ claims are not expressly preempted. See Oxygenated Fuels, 2001 WL 958793, at *4, 158 F.Supp.2d 248 (holding that section 7545(c)(4) “does not expressly preempt state action taken for the purpose of protecting the [Sjtate’s groundwater supply from contamination by MTBE”). 2. Conflict Preemption In order to find plaintiffs’ claims conflict preempted, this Court must determine either that (1) it would be impossible for the defendants to comply with both the state law sought to be imposed and the federal requirements; or (2) the state law sought to be imposed would provide an obstacle to the achievement and execution of the full purposes and objectives of Congress. See English, 496 U.S. at 79, 110 S.Ct. 2270. Defendants assert that finding them liable for using MTBE, one of a limited number of “federally approved” oxygenates, would present an obstacle to the achievement of the federal objectives of the CAA and the RFG Program and therefore, pursuant to the Supreme Court’s decision in Geier, supra, plaintiffs’ claims are preempted. In Geier, the Court found petitioner’s state law tort claims against a car manufacturer for failing to equip an automobile with a driver’s side airbag to be conflict preempted by a federal regulation, which at the time of the automobile’s manufacture in 1987, required that only 10% of a manufacturer’s nationwide fleet be equipped with any passive restraint at all. In reaching its decision, the Court noted that the [federal] standard deliberately provided the manufacturer with a range of choices among different restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and FMVSS 208 [the standard at issue] would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote FMVSS 208’s safety objectives. Geier, 529 U.S. at 875, 120 S.Ct. 1913 (emphasis added). The Court then deter-' mined that petitioner’s tort claims “would have presented an obstacle to the variety and mix of devices that the federal regulation sought ... [and] also would have stood as an obstacle to the gradual passive restraint phase-in that the federal regulation deliberately imposed. ” Id. at 881, 120 S.Ct. 1913 (emphasis added). Thus, because the rule of law petitioner sought to impose “would have stood as an obstacle to the accomplishment and execution of the[se] important means-related federal objectives”, the Court found petitioner’s claims to be preempted. Id. (quotation marks and citation omitted). Geier is distinguishable from the actions before this Court. The RFG Program was enacted to further the CAA’s purpose of protecting and enhancing the quality of air resources. See Oxygenated Fuels, 2001 WL 958793, at *1, 158 F.Supp.2d 248. In an effort to further this objective, the RFG Program set a minimum standard for oxygen content for gasoline to be used in certain designated non-attainment areas. While the EPA has certified various blends of gasoline for use in the RFG Program, including gasoline with MTBE, unlike the federal regulation at issue in Geier, the RFG Program does not deliberately seek to employ various “means-related” objectives, such as maintaining a mix of oxygenates or creating a gradual phase-in plan for the use of oxygenates in order to further its goal of reducing air pollution. In addition, unlike the rule sought to be imposed in Geier — establishing a duty to install airbags — plaintiffs do not seek to require the use of a specific oxygenate. The RFG Program does not mandate the use of MTBE, nor was it “intended to maintain the status quo or to protect certain fuel additives.” Oxygenated Fuels, 2001 WL 958793, at *20, 158 F.Supp.2d 248; see also Exxon Mobil, 217 F.3d at 1253 (“The legislative history [of the 1990 CAA amendments] suggests that fuel neutrality on the part of the [EPA] Administrator was a goal of the provisions.... ”). Defendants argue that at this time there are no “practicable” alternatives to MTBE sufficient to satisfy the oxygenate requirements of the RFG Program, plaintiffs have not alleged there are any such “practicable” alternatives, and therefore plaintiffs’ proffered rule — i.e., that defendants are liable for using MTBE and are therefore obligated to use another oxygenate — would seriously undermine the objectives of the CAA and the RFG Program. However, plaintiffs allege that [sjafer alternatives to MTBE exist and have been available to Defendants at all times relevant to this litigation, for the purposes of increasing both the octane level and oxygen content of gasoline. Such sensible alternatives to MTBE include, but are not limited to ethanol and other “oxygenates” and “octane enhancers.” MC ¶ 191; see also id. ¶ 122 (“Safer, more environmentally sound alternatives were available.”). Whether such alternatives are “practicable” and have been available to the defendants for their use in the RFG Program is a question of fact that the Court cannot address on a motion to dismiss. For the reasons stated above, defendants’ motions to dismiss based on the grounds that plaintiffs’ claims are preempted are denied. C. Primary Jurisdiction Defendants assert that plaintiffs’ claims raise a host of complex technical and policy issues that are within the expertise and discretion of various environmental agencies and that environmental regulators at all levels of governments are currently working to address these issues. Defendants also assert that each of the relevant jurisdictions have programs that will provide plaintiffs with the essential relief they seek — MTBE testing and where appropriate, the provision of clean water and/or remediation. They further assert that the Court-ordered relief plaintiffs seek would threaten the hope of obtaining a uniform and consistent response to the problem of MTBE groundwater contamination. Accordingly, they urge this Court to dismiss or abstain based upon the primary jurisdiction doctrine. 1. Standard The doctrine of primary jurisdiction allows a federal court, in the exercise of its discretion, to stay an action and refer a matter extending beyond the “conventional experiences of judges” or “falling within the realm of administrative discretion” to an administrative agency with more specialized experience, expertise, and insight. Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952). Courts generally apply the doctrine “whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); see also Johnson v. Nyack Hosp., 964 F.2d 116, 122-23 (2d Cir.1992); Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036-37 (Fla.2001). Although originally applied in situations involving jurisdictional conflicts between federal courts and federal agencies, in recent years the doctrine has been held applicable where state agencies have jurisdiction over issues sought to be raised before federal district courts. See Martin v. Shell Oil Co., 198 F.R.D. 580, 585 (D.Conn.2000). In deciding whether to apply the primary jurisdiction- doctrine a court should take into account the doctrine’s two primary interests': resolving technical questions of fact through an agency’s specialized expertise prior to judicial consideration of the legal claims; and consistency and uniformity in the regulation of an area which Congress has entrusted to a specific agency. See Golden Hill Paugusset Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir.1994). There is, however, no fixed formula to be applied in deciding whether to defer to an agency based on primary jurisdiction. Courts generally look to the following factors in making this determination: (1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. Martin, 198 F.R.D. at 585 (citing National Communications Assoc. v. American Tel. and Tel. Co., 46 F.3d 220, 222-23 (2d Cir.1995)). In addition, courts should “balance the advantages of applying the doctrine against the potential costs resulting from complications and delay in the' administrative proceedings.” National Communications, 46 F.3d at 223. 2. Analysis Both the first and second factors counsel against the invocation of the primary jurisdiction doctrine. “Referral of an issue to an agency on the grounds of primary jurisdiction is inappropriate when the issue in question is a purely legal one ... or turns on a factual matter requiring no technical or policy expertise.” Bernhardt v. Pfizer, Inc., Nos. 00 Civ. 4042, 00 Civ. 4379, 2000 WL 1738645, at *2 (S.D.N.Y. Nov. 22, 2000) (citation omitted). The resolution of the questions presented by plaintiffs’ common law claims does not require the specialized technical or policy expertise of any governmental agency. Plaintiffs’ claims, for the most part, are grounded in state tort law. Although the issues raised by these claims may require some technical analysis, questions such as whether gasoline with MTBE is a defective product, whether the defendants breached any duties owed to the plaintiffs by marketing gasoline with MTBE or by failing to give adequate warnings, whether defendant conspired to mislead the public regarding the hazards of MTBE, and whether plaintiffs’ injuries were caused by defendants’ conduct, are legal questions that fall within the conventional experience of judges, not administrative agencies. See Martin, 198 F.R.D. at 585-86. Further, courts generally invoke the primary jurisdiction doctrine where a specific issue raised is “squarely placed within [the agency’s] informed expert discretion” and the agency being deferred to is capable of deciding the issue. Bernhardt, 2000 WL 1738645, at *3 (deferring the question of whether a notice of warning to drug users should be issued to the FDA' — the agency with the relevant expertise and power to issue such notices); see also Golden Hill, 39 F.3d 51, 59-60 (court deferred the issue of whether plaintiff met the criteria for tribal status to the Bureau of Indian Affairs, the agency which promulgated the regulations governing this issue); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F.Supp. 1333, 1349-1350 (D.N.M.1995) court deferred plaintiffs request for injunctive relief and remediation with respect to a contaminated mine site where the state environmental agency was dealing with the issue and had already issued an order providing appropriate relief. That is not the case here. Although the EPA and various state environmental agencies are investigating the overall problem of MTBE contamination of groundwater and considering policy options in preparation for possible rulemak-ing or legislative recommendations, none of these agencies are addressing the specific issues raised by plaintiffs’ common law claims, nor are these issues squarely within their expertise. With respect to the third factor, defendants argue that should this Court award plaintiffs the injunctive relief they seek, there is a strong likelihood that such relief will be inconsistent with the relief currently available through state statutory/regulatory programs, as well as any possible future relief provided by either the EPA or a state agency designed to specifically address the problem of MTBE contamination of groundwater. At this time, however, the specific relief sought by plaintiffs is not provided by the various administrative agencies, nor does such relief appear to be forthcoming in the near future. See National Communications, 46 F.3d at 223 (in determining whether to apply the primary jurisdiction doctrine a court must balance the advantages of applying the primary jurisdiction doctrine against potential costs resulting from complications and/or delay in the administrative process). Further, courts generally do not defer jurisdiction where plaintiffs seek damages for injuries to their property or person. See Friends of Santa Fe, 892 F.Supp. at 1350. In addition to the injunctive relief sought on behalf of the putative classes, compensatory damages are sought for those named plaintiffs who demonstrate an entitlement to such relief. See MC at Prayer for Relief ¶ c. Punitive damages are also sought by both the Berisha and Berrian plaintiffs. For these reasons, I decline, in the exercise of my discretion, to dismiss or abstain on the basis of primary jurisdiction. D. Plaintiffs’ Failure to Identify Which Defendant or Defendants Caused Their Injury Regardless of the theory upon which liability is predicated, in order to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must be proof that the defendant being sued is the entity that actually produced, manufactured, sold, or was in some way responsible for the product. See Sanderson v. International Flavors and Fragrances, Inc., 950 F.Supp. 981, 984 (C.D.Ca.1996); Pulte Home Corp. v. Ply Gem Indus., Inc., 804 F.Supp. 1471, 1485 (M.D.Fla.1992); Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601-02, 640 N.Y.S.2d 860, 663 N.E.2d 901 (1996); Smith v. Eli Lilly & Co., 137 Ill.2d 222, 148 Ill.Dec. 22, 560 N.E.2d 324, 328 (1990). Here, plaintiffs do not allege which defendant caused their injuries. Instead, they allege that such specific identification is impossible, and accordingly, seek to invoke one of the recognized collective theories of liability — market-share liability, alternative liability, concert of action/conspiracy, or enterprise liability — as a basis for imposing liability upon all of the defendants. See MC ¶¶ 167-71. Defendants argue that because these theories do not fit the circumstances of the present actions, plaintiffs’ state law claims must be dismissed. 1. The Collective Liability Theories The theory of alternative liability originated in a California case, Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (Ca.1948), in which a hunter was injured when shot by one of two companions who each fired in the plaintiffs direction at the same time. This theory may be applied when the conduct of two or more actors toward the plaintiff is tortious, the harm to the plaintiff was caused by only one of them, and there is uncertainty as to which one caused the plaintiffs injury. See id. at 2-5; see also Restatement (Second) of Torts § 433B(3) (1979). In such a case, the burden of proof as to causation is reversed and placed upon each defendant to prove that it did not cause the harm. See New Jersey Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96, 106-07 (3d Cir.1999). An allegation of alternative liability requires joining all potentially culpable defendants in the action. See id. Market-share liability was first developed by the California Supreme Court in a case involving an injury caused by the drug diethylstilbestrol (DES), a fungible or generic drug the plaintiffs mother took to help prevent a miscarriage, that could not be traced back to its manufacturer when, years after the product was ingested, the plaintiff manifested an injury. See Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (Ca.1980). Under market-share liability, when a plaintiff is unable to identify the specific manufacturer of a fungible product that caused her injury, the plaintiff may recover damages from a manufacturer or manufacturers in proportion to each manufacturer’s share of the total market for the product. See, e.g., Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 509-513, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989)(DES); Sindell, 163 Cal.Rptr. 132, 607 P.2d at 936-38; see also Richie v. Bridgestone/Firestone, Inc., 22 Cal.App.4th 335, 27 Cal.Rptr.2d 418, 421 (1994) (“Under the market share theory of liability, a plaintiff harmed by a fungible product that cannot be traced to a specific producer may sue various makers of the product if the plaintiff joins a substantial share of those makers as defendants.”). Generally, in order to invoke the theory, a plaintiff must be unable to identify any of the specific manufacturers responsible for the harm and defendants representing a substantial share of the market for the product must be joined in the action. See Sindell, 163 Cal.Rptr. 132, 607 P.2d at 936-38. Enterprise liability is a theory used to hold all manufacturers in a specific industry liable when the plaintiff is unable to identify the specific manufacturer whose product caused the harm, and when the industry jointly controlled the risk. See Hall v. E.I. DuPont De Nemours & Co., 345 F.Supp. 358, 374-78 (E.D.N.Y.1972). This joint control generally involves the use of a trade association or other form of agreement or custom through which industry-wide practices or safety standards are determined. See id. at 374. Finally, under the theory of concert of action, a defendant may be held jointly and severally liable if it commits a tortious act in concert with another or pursuant to a common design, or a defendant gives substantial assistance to another knowing that the other’s conduct constitutes a breach of duty. See Smith, 148 Ill.Dec. 22, 560 N.E.2d at 329; see also Restatement (Second) of Torts § 876. 2. Applicable Law In order to determine whether plaintiffs’ allegations are sufficient to support one of the collective theories of liability, this Court must look to the law of the relevant states. Because the issue of whether collective liability should be applied in the context of MTBE contamination has not been squarely addressed by these states, this Court must predict how the highest court of each state would resolve this issue. See Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994). In doing so, the “fullest weight” should be given to the “pronouncements of the [highest court of the states].” Id. In addition, relevant rulings of other state courts, as well as relevant cases from other jurisdictions may be considered. See New York v. Blank, 27 F.3d 783, 788 (2d Cir.1994). a. New York and California On questions of collective liability in tort, the highest courts of New York and California have been national leaders. As noted above, market-sh