The Utils. Bd. of Tuskegee v. 3M Co.
| Decision Date | 09 February 2023 |
| Docket Number | 2:22-CV-420-WKW [WO] |
| Parties | THE UTILITIES BOARD OF TUSKEGEE, Plaintiff, v. 3M COMPANY, INC., et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
“Nothing sticks,” to Teflon nonstick cooking pans. But the toxic chemicals used to make those pans and countless other products stick to the environment “forever.”[1]This putative class action alleges that those toxic chemicals dangerously contaminated the drinking water in Tuskegee, Alabama.[2] Representative Plaintiff The Utilities Board of Tuskegee (UBT), the municipal water utility that provides drinking water to Tuskegee, alleges that Defendants engaged in tortious conduct under Alabama law when they designed, manufactured, marketed, and sold chemicals and chemical-laden products despite knowing that their normal and foreseeable use and disposal would dangerously contaminate UBT's water source, rendering it unusable for safe drinking. UBT wants safe drinking water, and it wants Defendants-the companies who allegedly contaminated its rightful water source- to make it happen.
Pending before the court is a motion to dismiss filed by 3M Company Inc. (3M) (Doc. # 27), and a motion to dismiss jointly filed by E.I. du Pont de Nemours and Company, the Chemours Company FC, LLC, and the Chemours Company (collectively, DuPont) (Doc. # 25).[3]The motions are fully briefed and ripe for resolution. (Docs. # 32, 33, 38, 39). As explained below, the motions will be denied in part and granted in part.
Subject matter jurisdiction is proper under 28 U.S.C. § 1332(a) and 28 U.S.C § 1332(d)(2)(A). The parties do not contest personal jurisdiction or venue.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citing Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citations omitted) (internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The complaint must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
For purposes of Fed.R.Civ.P. 12(b)(6), the plaintiffs' allegations are presumed true. As such, the facts are taken from the complaint. (Doc. # 1.) See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)) (“When considering a motion to dismiss, all facts set forth in the plaintiff's complaint ‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.'”). However, legal conclusions unsupported by factual allegations are not entitled to that assumption of truth. See Iqbal, 556 U.S. at 662.
Like many water utilities, UBT is a municipal waterworks plant and distribution system that provides drinking water to its own residential and commercial customers. UBT pulls water from a public waterway, treats it, and then sells it to the people of Macon County, Alabama. UBT is outfitted with conventional drinking water filtration and treatment systems, but its current facilities lack the capability to effectively treat per- and polyfluoroalkyl substances, which are known as PFAS. In 2022, UBT's drinking water, post-treatment, contained a detectable level of PFAS that exceeds health-advisory levels announced by the EPA on June 15, 2022.
PFAS are a family of human-made synthetic chemical compounds that do not exist naturally in the environment. For decades, they were widely used in consumer, household, and other commercial products-like nonstick cookware, textiles, carpet, and food packaging. PFAS exposure is correlated with a wide array of harmful health effects, including kidney and testicular cancer, ulcerative colitis, and adverse effects on fetal development during pregnancy, among many others. Importantly, PFAS are bioaccumulative and biopersistent-meaning that PFAS accumulate in the body overtime, and they persist in the environment (without breaking down or degrading naturally) for an indefinite period. UBT alleges that PFAS's capacity to persist for a long period of time has caused them to be termed “forever” chemicals. (Doc. # 1 at 5.)
The main pathway of PFAS exposure for humans is the ingestion of drinking water. PFAS can enter water in many ways. PFAS can be discharged directly into waterways. PFAS can also be released into water through the “normal and foreseeable use and/or disposal of consumer products containing PFAS.” (Doc. # 1 at 10.) For example, products and byproducts containing PFAS (like, carpet scraps and food packaging waste) are placed into landfills, where the PFAS from those products then runs off and/or leaches into groundwater and surface water. PFAS can also contaminate water through residential drainage systems. Runoff from PFAS-containing products like non-stick cookware can enter residential plumbing via their normal use which is then ultimately released into public waterways and drinking water sources. Additionally, PFAS can enter waterways through various industrial processes during its manufacture, use, and disposal. Generally, “PFAS readily migrate in soil, surface water, and ground water, causing extensive contamination.”
In sum, UBT alleges that PFAS entered its water source through industrial processes and facilities, disposal by industrial process and facilities, wastewater discharge through such processes, and through the normal and foreseeable consumer use and disposal of PFAS and PFAS containing products. Crucially, UBT alleges that the water contamination was a result of the ordinary, foreseeable, and normal use, discharge, and disposal of PFAS and PFAS products, not from improper/unforeseeable disposals or discharges by end-users. UBT does not allege any negligence by unnamed third parties. Rather, UBT's claims are directed at the companies who introduced PFAS into the stream of commerce: Defendants DuPont and 3M.
Defendants first began supplying PFAS or products containing PFAS in large quantities during the early 1950s. 3M is the only known manufacturer of PFOS, one type of toxic PFAS found in UBT's water supply. 3M and DuPont together were the only companies to manufacture PFOA, another toxic PFAS found in UBT's water supply. UBT alleges that “3M knew or should have known that, in their intended and/or common use, PFAS (including products containing PFAS and PFAS used in industrial processes) would contaminate the environment and harm Plaintiffs' drinking water,” (Doc. # 1 at 13), and that “DuPont knew, or should have known, that PFAS would contaminate the environment and Plaintiffs' drinking water through their manufacturing, marketing, distribution, and sales of PFAS chemicals and consumer, household, and other commercial products and materials containing PFAS.” (Doc. # 1 at 15.)
In support, UBT alleges that both 3M and DuPont knew for decades that toxic PFAS were harmful to humans and the environment, that PFAS was biopersistent and bioaccumulative, and that PFAS could contaminate public waterways through runoff and leachate, among other means. UBT alleges that DuPont had internally confirmed, as early as 1984, that “continued exposure to [PFOA] is not tolerable” and that DuPont held internal positions calling for PFOA to be “totally” eliminated. (Doc. # 1 at 15.) Similarly, UBT alleges 3M knew for years that PFAS could not effectively be treated by conventional wastewater treatment processes. (Doc. # 1 at 12.) But despite this knowledge, and for economic reasons, Defendants continued to promote, design, manufacture, supply, and sell PFAS and PFAS containing products without reasonable care. Moreover, UBT alleges that Defendants actively took steps to conceal their knowledge and control the science on PFAS by misleading regulators and scientists.
Over 70 years after Defendants first began their PFAS-related industry, on June 15, 2022, the EPA released updated drinking water health advisories for PFOA and PFOS. In them, the EPA lowered the health advisories for lifetime exposure to PFOA and PFOS contaminants in drinking water to .004 parts per trillion and . 02 parts per trillion, respectively. The advisories indicate the level of drinking water contamination below which adverse...
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