Parris v. 3M Co.

• Decision Date: 30 March 2022
• Docket Number: 4:21-CV-40-TWT
• Parties: EARL PARRIS, JR. Individually, and on behalf of a Class of persons similarly situated, Plaintiff, v. 3M COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

EARL PARRIS, JR. Individually, and on behalf of a Class of persons similarly situated, Plaintiff, v. 3M COMPANY, et al., Defendants.

No. 4:21-CV-40-TWT

United States District Court, N.D. Georgia, Rome Division

March 30, 2022

OPINION AND ORDER

THOMAS W. THRASH, JR. UNITED STATES DISTRICT JUDGE

This is a water pollution case. It is before the Court on Proposed Intervenor-Plaintiff City of Summerville's Amended Motion to Intervene [Doc. 84], Defendant Daikin America, Inc.'s Motion to Dismiss [Doc. 86], Defendant Mount Vernon Mills Inc.'s Motion to Dismiss [Doc. 87], Defendant Ryan Dejuan Jarrett's Motion to Dismiss [Doc. 88], Defendant 3M Company's Motion to Dismiss [Doc. 89], Defendant Town of Trion's Motion to Dismiss [Doc. 90], Defendant Huntsman International, LLC's Motion to Dismiss [Doc. 91] Defendant Pulcra Chemicals, LLC's Motion to Dismiss [Doc 92], the Plaintiff's Motion for Leave to File Sur-Reply [Doc. 114], and Defendant 3M Company and Daikin America, Inc.'s Motion to Strike [Doc. 128]. For the reasons set forth below, the Court GRANTS Proposed Intervenor-Plaintiff City of Summerville's Amended Motion to Intervene [Doc. 84], DENIES Defendant Daikin America, Inc.'s Motion to Dismiss [Doc. 86], GRANTS in part and DENIES in part Defendant Mount Vernon Mills, Inc.'s Motion to Dismiss [Doc. 87], DENIES Defendant Ryan Dejuan Jarrett's Motion to Dismiss [Doc. 88], DENIES Defendant 3M Company's Motion to Dismiss [Doc. 89], DENIES Defendant Town of Trion's Motion to Dismiss [Doc. 90], DENIES Defendant Huntsman International, LLC's Motion to Dismiss [Doc. 91], DENIES Defendant Pulcra Chemicals, LLC's Motion to Dismiss [Doc. 92], DENIES as moot the Plaintiff's Motion for Leave to File Sur-Reply [Doc. 114], and DENIES Defendant 3M Company and Daikin America, Inc.'s Motion to Strike [Doc. 128].

I. Background

This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances, known as “PFAS.” (Am. Compl. ¶ 1.) PFAS are a group of synthetic chemicals that have been used since the 1940s in a wide array of industrial and commercial applications. (Id. ¶¶ 38, 39, 55.) Their commercial usefulness is the product of strong carbon-fluorine bonds, which make PFAS highly stable, oil-and water-repellant, and resistant to heat and chemical reactions. (Id. ¶ 38.)

However, these same properties also make PFAS persistent in the environment, with no known natural processes to break them down. (Id. ¶¶ 38, 39.) PFAS are also highly mobile and water soluble and can leach from soil into groundwater, making groundwater and surface waters particularly vulnerable to contamination. (Id.) Once in the environment, these chemicals are absorbed into biota, ingested by humans via drinking water, and bioaccumulate with repeated exposure. (Id. at ¶¶ 39, 41.) As PFAS build up and distribute throughout the human body, they can cause long-term physiologic alterations and damage to the blood, liver, kidneys, immune system, and other organs. (Id. ¶ 41.) Some of the human diseases associated with PFAS exposure include immunotoxicity, cancer, thyroid disease, ulcerative colitis, and high cholesterol. (Id. ¶ 42.)

The Plaintiff Earl Parris, Jr., is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department. (Id. ¶ 21.) Summerville uses Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. (Id.) But the Plaintiff alleges that Raccoon Creek-and consequently his household water-has been contaminated with PFAS by the Defendants. (Id.) According to the First Amended Complaint (“Complaint”), the contamination started with four corporations referred to collectively as the “Manufacturing Defendants”: 3M Company (“3M”), Daikin America, Inc. (“Daikin”), Huntsman International, LLC (“Huntsman”), and Pulcra Chemicals, LLC (“Pulcra”). Allegedly, the Manufacturing Defendants have for decades manufactured and supplied the PFAS that are being discharged into Raccoon Creek and pumped into the Summerville water system. (Id. ¶¶ 5, 29-33, 63, 68.) The Plaintiff asserts that the Manufacturing Defendant have long known about the risks associated with the use and disposal of PFAS. (Id. ¶¶ 55-72.)

The next stop in the flow of PFAS is Defendant Mount Vernon Mills, Inc. (“Mount Vernon”). Mount Vernon is a South Carolina corporation that has owned and operated a textile mill in Trion, Georgia, for at least 35 years. (Id. ¶¶ 24, 33.) During this time, Mount Vernon has purchased products containing PFAS, including Perfluorooctanesulfonic Acid (“PFOS”) and Perfluorooctanoic Acid (“PFOA”), from the Manufacturing Defendants to make water- and stain-resistant fabrics. (Id. ¶¶ 33, 34, 63, 68.) The PFAS used at the mill is discharged via wastewater into the Trion Water Pollution Control Plant (“Trion WPCP”), which is owned and operated by Defendant Town of Trion (“Trion”) pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit. (Id. ¶¶ 33-35, 37.) However, the Trion WPCP is not capable of degrading the PFAS in Mount Vernon's wastewater, so these chemicals end up being discharged as effluent into the Chattooga River or applied as sludge to land in the Raccoon Creek watershed. (Id.) Since 1992, Trion has disposed of nearly 8, 000 tons of PFAS-contaminated sludge in the watershed, including on property owned by Defendant Ryan Dejuan Jarrett (“Jarrett”). (Id. ¶ 36.)

Between November 2019 and December 2020, the United States Environmental Protection Agency (“EPA”) and the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) repeatedly discovered high levels of PFAS, including PFOA, PFOS, and short-chain PFAS, in Raccoon Creek. (Id. ¶¶ 74-78.) PFAS was also found in Summerville's treated water in January 2020; at 98 parts per trillion (“ppt”), the combined PFOA and PFOS levels in the water exceeded the EPA Drinking Water Health Advisory and other federal, state, and independent guidelines. (Id. ¶ 79.) Based on these sampling results, Summerville notified its water users to stop drinking or cooking with municipal water. (Id.) In October 2020, Summerville installed a temporary treatment system consisting of a pit in the ground filled with granulated activated carbon. (Id. ¶ 82.) Samples taken after installation, though, continued to show PFOA and PFOS of 24 ppt and 15 ppt, respectively, in treated water. (Id. ¶ 83.) According to the Complaint, Summerville's temporary treatment system is not effectively removing PFOA, PFOS, or short-chain PFAS from the water supply and thus has not eliminated the health and safety risk to the Plaintiff and other water users. (Id.)

The Plaintiff attributes the contamination of Raccoon Creek and his household water to Trion's land application of PFAS-contaminated sludge. (Id. ¶¶ 74, 87.)

He further asserts that this threat is ongoing because Mount Vernon continues to discharge high levels of PFAS into the Trion WPCP, and because significant amounts of PFAS-contaminated sludge remain on properties in the Raccoon Creek watershed. (Id. ¶¶ 34, 87.) All the while, the Manufacturing Defendants have allegedly known that PFAS cannot be removed from industrial wastewater by conventional treatment processes, and that it is unsafe to dispose of PFAS through land application or effluent discharges. (Id. ¶¶ 60, 61.) The Plaintiff cites a number of internal studies conducted by the Manufacturing Defendants and their predecessors that found PFAS to be persistent, mobile, bioaccumulative, and toxic. (Id. ¶¶ 54-59, 63-69.) Allegedly, the Manufacturing Defendants communicated these findings within the industry, including to PFAS users like Mount Vernon, but concealed their knowledge from the public and government agencies. (Id. ¶¶ 70, 72.) In any event, the persistence and toxicity of PFAS have been widely published since at least 2000. (Id. ¶ 70.)

Though not identified in the Complaint, multiple Defendants direct the Court's attention to a Consent Decree executed between the EPD and Trion on April 13, 2020. (Trion's Br. in Supp. of Trion's Mot. to Dismiss, Ex. 2.) Generally, a district court must convert a motion to dismiss into a motion for summary judgment if it considers materials outside the complaint. Day v. Taylor, 300 F.3d 1272, 1275-76 (11th Cir. 2005). However, the Court finds that the Consent Order is an exception to the rule because it is central to the Plaintiff's claims and its authenticity is undisputed. Id. at 1276. The Consent

Order states that

the land application of biosolids (i.e., sludge) by [Trion] from the Trion WPCP at multiple locations in the Raccoon Creek Watershed in Chattooga County is contributing to the levels of PFOA and PFOS in Raccoon Creek and consequently in the finished water from the City of Summerville's Raccoon Creek drinking water treatment plant[.]

(Trion's Br. in Supp. of Trion's Mot. to Dismiss, Ex. 2 at 6-7.) It further declares that sludge disposal has contributed to violations of section 391-3-6-.03(5)(e) of the Georgia Water Quality Rules, and requires, among other things, that Trion “immediately cease land applying biosolids in the Raccoon Creek Watershed[.]” (Id. at 7-8.)

As a result of the contamination of Raccoon Creek and Summerville's water supply, the Plaintiff alleges that he and a proposed class of Summerville water subscribers (“Proposed Class Members”) have suffered numerous damages. (Am. Compl. ¶ 146.) Specifically, the Complaint seeks to recover for personal property damages-based on harm to household water-and real property damages-based on the diminution of property values, interference with the use and enjoyment of property, and upset, annoyance, and...