Suez Water N.Y. Inc. v. E.I. Du Pont De Nemours & Co.

• Decision Date: 04 January 2022
• Docket Number: 20-cv-10731 (LJL)
• Parties: SUEZ WATER NEW YORK INC., Plaintiff, v. E.I. DU PONT DE NEMOURS AND COMPANY; DuPont de Nemours, Inc. (f/k/a/ DowDuPont, Inc.); Corteva, Inc.; and The Chemours Company, Defendants.
• Court: U.S. District Court — Southern District of New York

578 F.Supp.3d 511

SUEZ WATER NEW YORK INC., Plaintiff,

v.E.I. DU PONT DE NEMOURS AND COMPANY; DuPont de Nemours, Inc. (f/k/a/ DowDuPont, Inc.); Corteva, Inc.; and The Chemours Company, Defendants.

20-cv-10731 (LJL)

United States District Court, S.D. New York.

Signed January 4, 2022

Christopher Kelleher, Alston & Bird LLP, Atlanta, GA, Daniel E. Gorman, Jenna Christine Hutchinson, Richard P. O'Leary, Troutman Pepper Hamilton Sanders LLP, New York, NY, for Plaintiff.

Lanny S. Kurzweil, Natalie S. Watson, Ryan A. Richman, McCarter & English, LLP, Newark, NJ, for Defendants E.I. DuPont De Nemours and Company, Chemours Company.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

SUEZ Water New York Inc. ("SUEZ" or "Plaintiff") brings this action against Defendants E.I. du Pont de Nemours and Company, Inc. ("Old DuPont"); The Chemours Company ("Chemours"); DuPont de Nemours, Inc. (f/k/a DowDuPont, Inc.) ("New DuPont"); and Corteva, Inc. ("Corteva") (collectively, "Defendants") for various tort claims related to water contamination. See Dkt. No. 51. Each defendant moves to dismiss SUEZ's first amended complaint (the "Complaint" or "Compl."): New DuPont and Corteva move to dismiss under Federal Rule of Civil Procedure 12(b)(2), asserting that the Court lacks personal jurisdiction over them, see Dkt. No. 57; Old DuPont and Chemours also move to dismiss under Rule 12(b)(2), asserting that the Court lacks personal jurisdiction over them, see Dkt. No. 61; and all Defendants move to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, see Dkt. No. 53.

For the reasons stated below, Corteva's and New DuPont's motion to dismiss for lack of personal jurisdiction is granted, Old DuPont's and Chemours’ motion to dismiss for lack of personal jurisdiction is denied, and Old DuPont's and Chemours’ motion to dismiss for failure to state a claim is granted.

BACKGROUND

For the purposes of these motions, the Court takes the well-pleaded allegations of the Complaint as true.

Per- and polyfluoroalkyl substances ("PFAS") are a class of man-made chemicals. Compl. ¶ 11. Since the 1940s, PFAS have been used in a wide variety of industrial and commercial products, such as carpets, food packaging, cookware, and fabrics used in furniture. Id. ¶¶ 11–12. They have also been used in Defendant-affiliated name-brand chemical additives, including Teflon® and Tyvek®, that other industrial manufacturers use and incorporate into their own products. Id. ¶ 12.

The United States Environmental Protection Agency ("EPA") has identified widespread PFAS contamination in the environment, concluding that PFAS have likely been released into the environment in various ways. Id. ¶ 15. PFAS are persistent chemicals and often take many years to degrade, earning the moniker "forever chemicals." Id. ¶¶ 18, 20. EPA has found that PFAS can be released during the manufacture, use, and disposal of PFAS and PFAS-containing products, as well as during the biodegradation of products that contain PFAS. Id. ¶ 16.

Many consumer goods that contain PFAS are disposed of as municipal solid waste, and PFAS may leach from solid waste over the long term and be released from landfills and waste treatment facilities through leachate, gas emissions, and other discharges. Id. ¶ 18. Leachate from landfills is often sent to wastewater treatment plants, where, due to ineffective conventional wastewater treatment methods, PFAS may pass through the treatment plant and end up in surface waters. Id. ¶ 19. PFAS are water-soluble, which allows them to migrate from soil into groundwater, and mobile, which allows them to spread beyond the initial locations where they are introduced in the environment. Id. ¶ 21. Once PFAS are released into the environment, their properties make them very difficult to remove or contain. Id.

People are exposed to PFAS primarily through consumer products, food, and drinking water. Id. ¶ 14.

Two of the most prevalent PFAS are the chemicals perfluorooctanoic acid ("PFOA") and perfluorooctanesulfonic acid ("PFOS"), both of which have been widely used and applied in the manufacturing industry. Id. Of the chemicals that fall within the classification PFAS, PFOA is particularly water-soluble. Id. ¶ 21. Although the uses of PFOA and PFOS have been gradually phased out in recent years, both chemicals remain prevalent. Id. ¶ 14.

Scientific evidence indicates that PFOA and PFOS may be hazardous to the environment, id. ¶¶ 22, 27, and both EPA and the New York State Department of Environmental Conservation ("DEC") have taken action to address risks that PFAS pose to the public, id. ¶¶ 22–24, 27–31. In 2016, EPA issued drinking-water health advisories for PFOA and PFOS, explaining that the level of 70 parts per trillion ("ppt") of PFOA and PFOS (combined) in drinking water may pose risks to people consuming that water. Id. ¶ 23. The following year, New York State established the Drinking Water Quality Council to study the effects of "emerging contaminants," including PFOA and PFOS, on the environment and the public, id. ¶ 26, and DEC added PFOA and PFOS to a regulatory list of hazardous substances, id. ¶ 27.

In 2020, the New York State Department of Health's ("NYSDOH") Public Health and Health Planning Committee approved the adoption of Maximum Contaminant Levels ("MCLs") for PFOA and PFOS in New York State's public water systems. Id. ¶ 28. These MCL regulations took effect in August 2020, and they require all public water systems to regularly test and monitor for PFOA and PFAS. Id. ¶ 30. Water systems serving 10,000 or more people, of which SUEZ is one, were required to begin testing and monitoring for these chemicals within sixty days of August 26, 2020. Id. The MCLs also require public water systems to supply drinking water that contains less than 10 ppt of either PFOS or PFOA, a level significantly below the federal advisory level. Id. ¶ 31 (citing N.Y. Comp. R. & Regs. tit. 10, §§ 5-1.50 –.53). If the water system exceeds an MCL, as determined by multiple monitoring samples, it must take corrective action, including installing a suitable treatment process. Id. (citing N.Y. Comp. R. & Regs. tit. 10, § 5-1.51(a) ).

Testing by the NYSDOH between 2015 and 2018 showed that 12.2% of the state's public-water systems had levels of PFOA that exceeded 10 ppt, and 8.6% had levels of PFOS that exceeded 10 ppt. Id. ¶ 61. In July 2020, NYSDOH estimated that around 21% of public-water systems had levels of PFOA and/or PFOS in excess of 10 ppt. Id. ¶ 63.

Plaintiff SUEZ is a New York corporation that owns and operates five public water systems in New York, providing water to approximately 505,000 customers across Orange, Putnam, Rockland, Tioga, and Westchester Counties. Id. ¶¶ 4, 64. SUEZ's water systems are comprised of wells, surface water intakes, and drinking water treatment and supply systems. Id. ¶ 114. Recent monitoring at SUEZ's water systems revealed that multiple of its systems contain water with concentrations of PFOA and PFOS above New York's MCL of 10 ppt. Id. ¶¶ 67–70. For example, in October 2020, there were concentrations of PFOA and/or PFOS exceeding 10 ppt in at least sixteen of the source-water wells or water systems in SUEZ's Rockland Water System in Rockland County, New York. Id. ¶ 68. As a result of this contamination, SUEZ alleges that it has incurred, and will continue to incur, significant expenses related to remedying the PFAS contamination to comply with the relevant MCLs for PFOA and PFOS and related to monitoring for PFOA and PFOS. Id. ¶ 72; see also id. ¶¶ 73–77.

Defendants are all Delaware corporations with principal places of business in Wilmington, Delaware, and all do business in the Southern District of New York. Id. ¶ 5–8. They are alleged to be manufacturers, sellers, licensors, and distributors of PFAS and PFAS-containing products. SUEZ alleges that Defendants have knowingly and willfully placed PFAS and products that contain PFAS into the stream of commerce. Id. ¶¶ 1, 5–8. According to Plaintiff, Defendants have directed their activities toward New York State, where products and solutions that contain PFAS have been used and disposed of by manufacturers, distributors, and consumers, resulting in contamination to natural resources throughout New York State. Id. This contamination has affected the water sources that SUEZ uses to provide drinking water to its customers throughout New York. Id.

Old DuPont sold, marketed, licensed, and distributed PFAS, as well as products and solutions that contain PFAS, to purchasers and licensees in New York. Id. ¶ 5. Chemours, initially incorporated as a subsidiary of Old DuPont and then spun off as a separate corporate entity to hold its "performance chemicals" business lines and certain of Old DuPont's environmental liabilities,¹ has sold, licensed, marketed, and distributed PFAS, as well as products and solutions that contain PFAS, to purchasers and licensees in New York. Id. ¶ 8. Corteva is the parent corporation of Old DuPont and, as alleged on information and belief in the Complaint, contractually assumed other of Old DuPont's environmental liabilities related to PFAS. Id. ¶ 7. Plaintiff alleges on information and belief that New DuPont contractually assumed certain of Old DuPont's environmental liabilities related to PFAS. Id. ¶ 6.

I. Old Dupont and Chemours

Old Dupont and Chemours are identified in the Complaint as the "Manufacturing Defendants," Compl. ¶ 36, and the Court will refer to them as such throughout this Opinion.

Plaintiff alleges that Old DuPont and Chemours sold, licensed, and distributed PFAS and PFAS-containing products and solutions, including but not limited to PFOA and PFOS, to New York-based purchasers and licensees. Id. Beginning in the late 1950s, Old DuPont used PFOA as a processing aid in the manufacture of a variety of polymers. Id. ¶ 37. In or around 2002, Old DuPont began to manufacture its own PFOA. Id. ¶ 39. From the early 1950s until at least 2015, Old...