Butler v. Denka Performance Elastomer, L.L.C.

16 F.4th 427

Juanea L. BUTLER, individually and as representative of all others similarly situated, Plaintiff—Appellant,

v.DENKA PERFORMANCE ELASTOMER, L.L.C.; E. I. DuPont de Nemours & Company ; State of Louisiana, through the Department of Health, incorrectly named as Louisiana State Through the Department of Health and Hospitals; State of Louisiana, through the Department of Environmental Quality; DuPont Performance Elastomers, L.L.C., formerly known as DuPont Dow Elastomers, L.L.C., Defendants—Appellees.

No. 20-30365

United States Court of Appeals, Fifth Circuit.

FILED October 15, 2021

Danny Dustin Russell, Russell Law Firm, L.L.C., Baton Rouge, LA, James D. McMichael, Attorney, Spencer & Taylor, P.L.C., Lexington, VA, for Plaintiff—Appellant.

James Conner Percy, Esq., Jones Walker, L.L.P., Baton Rouge, LA, Brett S. Venn, Jones Walker, L.L.P., New Orleans, LA, for Defendant—Appellee Denka Performance Elastomer, L.L.C.

Deborah DeRoche Kuchler, Joshua James Doguet, Sarah Elizabeth Iiams, Kuchler Polk Weiner, L.L.C., New Orleans, LA, Bradley Weidenhammer, Kirkland & Ellis, L.L.P., Chicago, IL, for Defendant—Appellee E I DuPont de Nemours & Company.

W. L. West, Attorney, Roedel, Parsons, Blache, Fontana, Piontek & Pisano, A.L.C., Baton Rouge, LA, for Defendant—Appellee State of Louisiana.

Patrick B. McIntire, Lawrence E. Marino, Oats & Marino, Lafayette, LA, for Defendant—Appellee State of Louisiana.

Before Haynes, Higginson, and Oldham, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

In this environmental tort case, Juanea Butler alleges that neoprene production from the Pontchartrain Works Facility exposed residents of St. John the Baptist Parish, Louisiana, to unsafe levels of chloroprene, which she contends may result in a myriad of adverse health conditions including an elevated risk of cancer. Butler sued Denka Performance Elastomer and DuPont—the current and former owners of the facility—as well as the Louisiana Departments of Health ("DOH") and Environmental Quality ("DEQ") in state court seeking class certification, damages, and injunctive relief for various state tort claims.

Following removal, the district court denied Butler's motion to remand to state court;¹ granted each of the defendants' motions to dismiss because Butler's claims were either time-barred or failed to state a plausible claim;² denied in part Butler's motion for leave to amend as futile;³ and dismissed the amended petition for failure to state a claim.⁴ Butler appeals each ruling.⁵

I.

DuPont owned and operated the Pontchartrain Works Facility ("PWF") from 1969 until 2015, when DuPont sold the plant to Denka. For decades, it is alleged, the plant has emitted unsafe levels of chloroprene into the air, exposing nearby residents in the vicinity to adverse health effects. Though DuPont sold the neoprene manufacturing facilities of the PWF to Denka, it retained ownership of the underlying land and buildings.

On June 5, 2018, Butler filed her initial class action petition in Louisiana state court.⁶ She complains only of the chloroprene released as a result of the facility's neoprene production, and both the PWF's owners and the state's alleged failure to regulate those emissions.

Butler acknowledges that she is not the first to complain about these chloroprene emissions. The district court, accepting as true as it must the allegations in Butler's complaint and undisputed by the parties on appeal, summarized the relevant background as follows:

In December 2015, the Environmental Protection Agency ("EPA") released a screening-level National Air Toxics Assessment ("NATA"), and classified chloroprene as a likely human carcinogen. EPA's NATA evaluation suggested an acceptable risk exposure threshold for chloroprene: 0.2 µg/m3; that is, chloroprene emissions should stay below .2 micrograms per cubic meter to comply with the limit of acceptable risk threshold (which is a risk of 100 in one million people).

The EPA held its first Parish community meeting to discuss the potential chloroprene emission issues on July 7, 2016. At that meeting, a DOH representative advised that children should not breathe chloroprene. In August of 2016, Denka began 24-hour air sampling every six days. Samples collected at five sampling sites are and continue to exceed the 0.2 µg/m3 threshold. According to Denka's own sampling numbers for chloroprene concentrations, the average chloroprene concentration across all sampling sites from August 2016 to March 2017 has ranged from 4.08 µg/m3 to 6.65 µg/m3.

The EPA has noted that, in addition to the high risk of cancer from exposure to chloroprene, symptoms include: headache, irritability, dizziness, insomnia, fatigue, respiratory irritation, cardiac palpitations, chest pains, nausea, gastrointestinal disorders, dermatitis, temporary hair loss, conjunctivitis, and corneal necrosis.

The EPA has further detailed that acute exposure may: damage the liver, kidneys, and lungs; affect the circulatory system and immune system; depress the central nervous system; irritate the skin and mucous membranes; and cause dermatitis and respiratory difficulties in humans.

On October 7, 2016, Denka submitted modeling results for chloroprene concentrations surrounding the PWF to the Louisiana Department of Environmental Quality ("DEQ") for the period of 2011 through 2015, showing concentrations well above the 0.2 µg/m3 threshold. At a meeting on December 8, 2016, DEQ Secretary Chuck Brown dismissed those expressing concern about the chloroprene concentrations as "fearmongerers" and said "forget about 0.2[µg/m3]."

The EPA's National Enforcement Investigation Center ("NEIC") conducted a Clean Air Act ("CAA") inspection of the Pontchartrain Works facility in June 2016. A copy of the redacted inspection report from the EPA's CAA inspection was publicized on April 3, 2017. The NEIC inspection report revealed various areas of non-compliance by both DuPont and Denka in their operation of the facility, including failure to adhere to monitoring, recordkeeping, and reporting requirements for the chloroprene vent condenser; failure to replace leaking valves; failure to include appropriate emissions factors in air permit application materials; and failure to institute appropriate emissions controls for the chloroprene Group I storage tank.

Butler II , 2019 WL 1160814, at *1–2.

Butler herself is a resident of LaPlace, Louisiana, in St. John the Baptist Parish. Since 1998, she has resided and worked within 5.5 miles of the PWF. Butler alleges that DuPont and Denka have emitted, and continue to emit, chloroprene at levels resulting in concentrations exceeding the upper limit of acceptable risk. Specifically, she alleged in paragraph 24 of her initial complaint:

Due to the Plaintiff's exposure to the chloroprene emissions, she has experienced symptoms attributable to exposure of said chemical. Since April 2012 until current date, the Plaintiff has continually sought medical attention for the following conditions: acute bronchitis ; coughing; throat irritation; redness and swelling; nasal blockage, congestion, and sneezing; sinusitis and nasal polyps; exacerbation of preexisting asthma ; shortness of breath; wheezing; rhinosinusitis; thyroid enlargement ; cardiac problems; nausea; vomiting; headaches; fatigue; epistaxis (nose bleeds); anxiety; depression; insomnia; and temporary hair loss.⁷

Butler also seeks to represent a putative class on behalf of:

(1) Those persons who, at any time from January 1, 2011 through the present, have lived, worked, attended school, and/or actually resided within a geographical boundary of St. John the Baptist Parish ...; and

(2) who experienced one or more of the following physical symptoms: headaches; sinus problems; dizziness; insomnia; trouble breathing; respiratory irritation, or other respiratory problems; chest pains; acute cardiac palpitations; acute gastrointestinal disorder ; acute bronchitis ; acute onset of asthma ; exacerbation of pre- existing asthma ; fatigue; nausea; skin rash; temporary hair loss; chronic coughing; chronic nasal discharge; chronic cardiovascular disorder ; chronic throat irritation; chronic eye irritation; chronic thyroid disorder; anxiety; and depression, resulting from their exposure to chloroprene or other chemical substance released from the Pontchartrain Works Facility.⁸

Butler asserts various state tort claims against each of the defendants, and seeks class certification, damages, declaratory relief, and injunctive relief including an abatement of chloroprene releases from the PWF.

The district court ultimately dismissed Butler's claims against DuPont and DOH as prescribed by Louisiana's one-year limitations period, reversed in part the magistrate judge's order granting leave to add strict liability claims against DuPont and dismissed those claims as futile, and dismissed the remaining continuing tort claims against Denka for failure to state a plausible claim. Judgment was entered in favor of the defendants on June 4, 2020, and this appeal timely followed.⁹

II.

Butler first challenges the district court's denial of her motion to remand the case to state court, which we review de novo. Waste Mgmt., Inc. v. AIG Specialty Ins. Co. , 974 F.3d 528, 532 (5th Cir. 2020).

Denka and DuPont timely removed the case to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d), and the district court concluded that minimal diversity existed between Butler, a Louisiana citizen, and DuPont, a Delaware citizen based on its state of incorporation and the location of its corporate headquarters. On appeal, Butler argues that the district court lacked subject matter jurisdiction and that the state agency defendants are immune from suit in federal court. She primarily asserts that at the time of removal, DOH and DEQ had not waived immunity, and alternatively that their post-removal waiver was not authorized by the state legislature.

While Butler's primary challenge is based on sovereign immunity, her premise that...