Severa v. Solvay Specialty Polymers USA, LLC

• Decision Date: 09 March 2021
• Docket Number: 1:20-cv-06906-NLH-KMW
• Citation: 524 F.Supp.3d 381
• Parties: Kenneth SEVERA, et al., Plaintiffs, v. SOLVAY SPECIALTY POLYMERS USA, LLC, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

524 F.Supp.3d 381

Kenneth SEVERA, et al., Plaintiffs,

v.SOLVAY SPECIALTY POLYMERS USA, LLC, et al., Defendants.

1:20-cv-06906-NLH-KMW

United States District Court, D. New Jersey.

Signed March 9, 2021

Filed March 10, 2021

DAVID M. CEDAR, SHAUNA LAUREN FRIEDMAN, ALAN HERSCHEL SKLARSKY, WILLIAMS CEDAR, LLC, 8 KINGS HIGHWAY WEST, SUITE B, HADDONFIELD, NJ 08033, On behalf of Plaintiffs.

KEGAN ANDREW BROWN, LATHAM & WATKINS LLP, 885 3RD AVENUE, NEW YORK, NY 10022, On behalf of Defendant Solvay Specialty Polymers USA, LLC, successor by merger to Solvay Solexis, Inc.

JOHN D. NORTH, IRENE HSIEH, JEMI GOULIAN LUCEY, MARJAN MOUSSAVIAN, GREENBAUM, ROWE, SMITH & DAVIS, LLP, 99 WOOD AVENUE SOUTH, ISELIN, NJ 08830, KHRISTOPH ANDREAS BECKER, STEPTOE & JOHNSON LLP, 1114 AVENUE OF THE AMERICAS, 35TH FLOOR, NEW YORK, NY 10036, ROBERT L. SHUFTAN (pro hac vice), STEPTOE & JOHNSON LLP, 227 WEST MONROE STREET, SUITE 4700, CHICAGO, IL 60606, JOO CHA WEBB (pro hac vice), STEPTOE & JOHNSON LLP, 633 WEST FIFTH STREET, SUITE 1900, LOS ANGELES, CA 90071, On behalf of Defendant Arkema, Inc.

HILLMAN, District Judge

In this putative class action, Plaintiffs¹ assert claims against Defendants for damages arising from Defendants’ alleged contamination of the municipal water supply in National Park, New Jersey with poly- and perfluoroalkyl substances ("PFAS"), particularly perflouoronaonanoic acid ("PFNA") and perfluorooctanoic acid ("PFOA"). Presently before the Court are the motions of Defendants to dismiss Plaintiffs’ claims. For the reasons expressed below, Defendants’ motions will be granted on one issue, but denied in all other respects.

BACKGROUND

Plaintiffs’ amended complaint (Docket No. 6) claims that Defendants, Solvay Specialty Polymers USA, LLC and its predecessor Solvay Solexis, Inc., and Arkema, Inc., discharged or were responsible for contamination of PFAS, particularly PFNA and PFOA, into the air, water and groundwater from their facility in West Deptford, New Jersey.² Plaintiffs claim that over time, widespread PFNA and PFOA contamination has been discovered in the potable well water of residents in southern New Jersey who reside near this facility, as well as in municipal water wells, such as Plaintiffs’ municipal water in National Park, at levels that threaten the health of those exposed and which create a public and private nuisance. Plaintiffs claim that these chemicals are persistent in the environment, hazardous, and are not known to ever break down in water, soil, air, or the human body.

Plaintiffs claim that Defendants’ improper disposal consisted, in part, of dumping the PFNA and other PFAS into the sewer system – a process which Defendants knew or should have known would result in the discharge of the PFNA and other PFAS into the environment. Plaintiffs further claim that Defendants also discharged these chemicals directly into the environment, where they are subject to atmospheric dispersion and eventual deposition associated with the prevailing wind patterns. This dispersion and deposition results in human exposure both on-site and off-site of the plant. More specifically, Plaintiffs claim that Defendants improperly disposed of PFNA, PFOA and other PFAS on the actual plant site, contaminating the groundwater immediately beneath the plant, which is the source of the water used by the National Park Water Department for its drinking water, and that the PFNA used and discharged at the plant by Defendants from 1988 to 2010 have been detected in high concentrations in the drinking water for National Park.

Plaintiffs’ amended complaint relates that PFNA and other PFAS are associated with increased risk in humans of testicular cancer

, kidney cancer, prostate cancer, non-Hodgkin's lymphoma, pancreatic and ovarian cancer, as well as thyroid disease, high cholesterol, high uric acid levels, elevated liver enzymes, ulcerative colitis, and pregnancy-induced hypertension, as well as other conditions. Exposure may result in developmental effects to fetuses during pregnancy or to breastfed infants, liver damage, and various immunological effects. PFNA and other PFAS persist and bioaccumulate in humans, and as a result, comparatively low exposures such as those suffered by Plaintiffs may result in large body burdens persisting for years. Plaintiffs claim that there is a causal link between exposure to PFNA, and other PFAS, and subclinical or subcellular injury and serious latent human disease.

Plaintiffs’ amended complaint states that in 2018, New Jersey set the Maximum Contaminant Level ("MCL") for PFNA at 13 ppt, and the New Jersey Department of Environmental Protection ("NJDEP") required water utilities to begin testing for PFNA in their water beginning in the first quarter of 2019. Since an effective date of January 22, 2020, National Park has been subject to an enforcement action by NJDEP for violating the MCL for PFNA in samples taken from its treatment plant. According to NJDEP, samples taken from the National Park Water Department treatment plant exceeded the MCL of 13 parts per trillion for the time periods October 1, 2019 through December 31, 2019, and January 1, 2020 through March 31, 2020, in violation of N.J.A.C. 7:10-5.5(2) a5. Since at least April 2019, and each quarter thereafter continuing to today, National Park Water Department has notified its customers that its water is contaminated with PFNA at levels above the MCL.

Although Plaintiffs and the proposed classes were not made aware that their drinking water was contaminated by PFNA until 2019, the existence of the contamination extends much further back in time. Data provided to NJDEP about PFA use at the West Deptford plant indicate that 86.6% of the 125,069 kg of Surflon S-111 PFA mixture (which is primarily PFNA) used between 1991 and 2010 was released into the environment (i.e., the surrounding air and water).

There are approximately 1,000 households and approximately 3,000 residents in National Park. All or nearly all of the residents of National Park rely on the National Park Water Department for the provision of water and sewer services, and there are no households in National Park that draw drinking water from private wells. National Park Water Department has advised its customers to purchase NSF-certified carbon filtration systems at their own cost.

Plaintiffs’ amended complaint asserts six counts against Defendants: Count I - Public Nuisance, Count II - Private Nuisance, Count III - Trespass, Count IV - Negligence, Count V - New Jersey Spill Compensation and Control Act ("Spill Act"), N.J.S.A. 58:10-23.11 et seq., and Count VI - Punitive Damages. Plaintiffs have also asserted putative class action claims pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2), and (b)(3). Plaintiffs propose three classes: Municipal Water Property Damage Class, Municipal Water Nuisance Class, and Biomonitoring Class.

Plaintiffs’ alleged damages include: purchasing water filtration systems, which are reasonable and necessary to abate the contamination of PFNA in the water; locating and purchasing water for drinking, cooking, cleaning, and other uses, which is an additional reasonable and necessary response to the contamination when such filtration is not available; a diminution in value and nuisance of their property; the interference with the rights of Plaintiffs to use and enjoy their property; substantial expense incurred and will incur in the future related to the restoration of a clean water supply or access to an alternate water source; and exposure and consuming drinking water contaminated with PFNA, which puts Plaintiffs at significant risk of developing medical conditions associated with exposure to PFNA.

Defendants have moved to dismiss Plaintiffs’ amended complaint, arguing that Plaintiffs lack standing to bring their claims, and their claims must otherwise be dismissed for various pleading deficiencies. Plaintiffs have opposed Defendants’ motions.

DISCUSSION

A. Subject matter jurisdiction

The averred basis for this Court's subject matter jurisdiction is the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). CAFA confers jurisdiction where (1) the amount in controversy exceeds $5,000,000, as aggregated across all individual claims, see 28 U.S.C. §§ 1332(d)(2)-(6) ; (2) the citizenship of at least one class member differs from that of any defendant, i.e., there is minimal diversity, see 28 U.S.C. § 1332(d)(2)(A) ; and (3) the class consists of at least 100 members, see 28 U.S.C. § 1332(d)(5)(B).

The allegations in Plaintiffs’ amended complaint satisfy these elements of CAFA. Plaintiffs claim that the amount in controversy exceeds $5,000,000, as aggregated across all individual claims, minimal diversity is readily met because all Plaintiffs and proposed class members are citizens of New Jersey while none of the Defendants are citizens of New Jersey (see Joint Certification of the Citizenship of the Parties, Docket No. 70), and the proposed class consists of approximately 3,000 National Park residents.

B. Standard for Motion to Dismiss

A motion to dismiss for lack of standing is governed by Fed. R. Civ. P. 12(b)(1). The standard for reviewing a complaint on its face - a facial attack - under Rule 12(b)(1) essentially applies the same standard under Rule 12(b)(6). See In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (citation omitted) (explaining that standing is a jurisdictional matter which should not be confused with requirements necessary to state a cause of action, but in reviewing a facial challenge, which contests the sufficiency of the pleadings, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff").

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded...