Nix v. Chemours Co. FC, LLC

456 F.Supp.3d 748

Brent NIX, et al., Plaintiffs,

v.The CHEMOURS COMPANY FC, LLC, et al., Defendants.

Roger Morton, et al., Plaintiffs,

v.The Chemours Company, et al., Defendants.

Victoria Carey et al., Plaintiffs,

v.E.I. Du Pont De Nemours and Company, et al., Defendants.

No. 7:17-CV-189-D

No. 7:17-CV-197-D

No. 7:17-CV-201-D

United States District Court, E.D. North Carolina, Southern Division.

Signed April 19, 2019

Hoyt G. Tessener, Gary W. Jackson, Law Offices of James Scott Farrin, Durham, NC, Jamie L. Bowers, Stephen Douglas Bunch, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Stephen E. Morrissey, Jordan W. Connors, Steven M. Seigel, Susman Godfrey LLP, Seattle, WA, Andrew O. Whiteman, Whiteman Law Firm, Raleigh, NC, Gary K. Shipman, Shipman & Associates, LLP, Wilmington, NC, Vineet Bhatia, Susman Godfrey LLP, Houston, TX, Theodore J. Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, FL, for Plaintiff Brent Nix.

Jamie L. Bowers, Stephen Douglas Bunch, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Stephen E. Morrissey, Jordan W. Connors, Steven M. Seigel, Susman Godfrey LLP, Seattle, WA, Andrew O. Whiteman, Whiteman Law Firm, Raleigh, NC, Gary K. Shipman, Shipman & Associates, LLP, Wilmington, NC, Vineet Bhatia, Susman Godfrey LLP, Houston, TX, Theodore J. Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, FL, for Plaintiff Victoria Carey.

Jamie L. Bowers, Stephen Douglas Bunch, Cohen Milstein Sellers & Toll PLLC, Washington, DC, Stephen E. Morrissey, Jordan W. Connors, Steven M. Seigel, Susman Godfrey LLP, Seattle, WA, Gary K. Shipman, Shipman & Associates, LLP, Wilmington, NC, Vineet Bhatia, Susman Godfrey LLP, Houston, TX, Theodore J. Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, FL, for Plaintiffs Marie Burris, Michael Kiser.

David R. Erickson, Jason K. Ward, Mark D. Anstoetter, Shook, Hardy & Bacon LLP, Kansas City, MO, Jonathan D. Sasser, Thomas Hamilton Segars, Ellis & Winters, LLP, Raleigh, NC, John K. Sherk, Shook, Hardy & Bacon, LLP, San Francisco, CA, Kenneth J. Reilly, Shook Hardy & Bacon LLP, Miami, FL, Margaret Raymond-Flood, Martha N. Donovan, Norris McLaughlin, P.A., Bridgewater, NJ, R. Steven DeGeorge, Robinson, Bradshaw & Hinson, P.A., Charlotte, NC, Stephen D. Feldman, Robinson, Bradshaw & Hinson, P.A., Chapel Hill, NC, for Defendant the Chemours Company FC, LLC.

C. Bailey King, Jr., Robert R. Marcus, Bradley Arant Boult Cummings LLP, Charlotte, NC, David R. Erickson, Jason K. Ward, Mark D. Anstoetter, Shook, Hardy & Bacon LLP, Kansas City, MO, Jonathan D. Sasser, Thomas Hamilton Segars, Ellis & Winters, LLP, Raleigh, NC, John K. Sherk, Shook, Hardy & Bacon, LLP, San Francisco, CA, Katherine Hacker, Bartlit Beck LLP, Denver, CO, Kenneth J. Reilly, Shook Hardy & Bacon LLP, Miami, FL, Stephen D. Feldman, Robinson, Bradshaw & Hinson, P.A., Chapel Hill, NC, Tulsi E. Gaonkar, Bartlit Beck LLP, Chicago, IL, for Defendant E.I. duPont de Nemours & Company.

ORDER

JAMES C. DEVER III, United States District Judge On January 31, 2018, Victoria Carey ("Carey"), Marie Burris ("Burris"), Michael Kiser ("Kiser"), and Brent Nix ("Nix"; collectively "plaintiffs"), on behalf of themselves and others similarly situated, filed a consolidated class action complaint against E.I. du Pont de Nemours and Company ("DuPont") and The Chemours Company FC, LLC ("Chemours"; collectively "defendants") alleging that defendants discharged toxic chemicals, including perfluoro-2-propoxypropanoic acid ("GenX"), from the Fayetteville Works plant into the Cape Fear River and surrounding air, soil, and groundwater. See Nix v. Chemours Co. FC, No. 7:17-CV-189-D [D.E. 53] (E.D.N.C. Jan. 31, 2018).¹ On March 2, 2018, defendants moved to dismiss plaintiffs' consolidated class action complaint [D.E. 61] and filed a memorandum in support [D.E. 62]. On April 13, 2018, plaintiffs responded in opposition [D.E. 71]. On April 27, 2018, defendants replied [D.E. 74]. On March 26, 2019, the court granted in part and denied in part defendants' motion to dismiss the consolidated class action complaint [D.E. 108]. The court enters this order to explain that decision.

I.

A.

The plaintiffs' claims concern defendants' discharge of wastewater allegedly containing perfluorinated compounds ("PFCs"), notably GenX. See Consol. Class Action Compl. [D.E. 53] ¶¶ 1–2. PFCs are chemical compounds in which carbon-fluorine bonds replace all of the carbon-hydrogen bonds. Cf. id. ¶¶ 19–20. PFCs are classified and named based on the length of the carbon chain in the molecule and any functional group attached to the chain. See id. ¶¶ 20, 23. PFCs degrade slowly under environmental conditions, and plaintiffs allege that some PFCs "persist in the environment for over 2,000 years." Id. ¶ 23; see id. ¶¶ 24–25. PFCs, including GenX and perfluorooctanoic acid ("PFOA"), have been manufactured for use in various commercial products. See id. ¶¶ 2, 19, 26–27; cf. id. ¶¶ 28–83. In total, plaintiffs allege that defendants discharged 17 different PFCs into the Cape Fear River. See id. ¶ 87.

Plaintiffs allege that "PFCs are highly toxic to humans" and that "[s]cientists have linked PFCs to kidney cancer, testicular cancer, prostate cancer, ovarian cancer, non-Hodgkin lymphoma, liver disease, ulcerative colitis, thyroid disease, hypercholesterolemia, and pregnancy-induced hypertension, among other illnesses." Id. ¶ 21. Plaintiffs outline research concerning the toxicity of PFOA. See id. ¶¶ 26–32, 34–39, 41, 43–44, 51–52. Plaintiffs also discuss studies of GenX's toxicity. See id. ¶¶ 60–62, 65, 68–69, 71–75, 78. Plaintiffs allege that the studies indicate that rodents exposed to GenX developed "liver cell damage that could be a precursor to cancer" and had "a higher incidence of liver tumors, pancreatic tumors, and testicular tumors." Id. ¶¶ 65, 69. Although GenX's toxicity has been studied only in rodents, plaintiffs note that GenX is chemically similar to PFOA, which is toxic to humans. See id. ¶ 79. Plaintiffs also note that the Environmental Protection Agency ("EPA") established a lifetime health advisory level for PFOA and a related compound (perfluorooctane sulfonate or "PFOS") of 70 parts per trillion ("ppt") in drinking water. See id. ¶ 22. Relatedly, the state of North Carolina adopted a preliminary health-based goal of 140 ppt for GenX. Id.; see id. ¶ 92.

B.

The Fayetteville Works plant is located in Fayetteville, North Carolina, and plaintiffs allege that wastewater from the plant is discharged into the Cape Fear River. See id. ¶¶ 2, 17. DuPont constructed the Fayetteville Works plant in the 1970s. See id. ¶ 14. On February 1, 2015, Chemours, which was initially wholly owned by DuPont, acquired the Fayetteville Works plant from DuPont. See id. ¶ 15. In July 2015, Chemours separated from DuPont. See id.

The Fayetteville Works plant has at least five manufacturing areas dedicated to fluoromonomers/Nafion, polymer processing aid, Butacite, SentryGlas, and polyvinyl fluoride. See id. ¶ 16. Plaintiffs allege that, from the 1950s until the early 2000s, DuPont "relied heavily on PFOA ... to make Teflon and other non-stick products." Id. ¶ 26. Initially, DuPont purchased PFOA from the 3M Company ("3M"). See id. ¶¶ 34, 44. Both DuPont and 3M investigated the toxicological properties of PFOA during this time. Plaintiffs allege that DuPont was aware of safety risks associated with PFOA as early as the 1960s, well before DuPont opened the Fayetteville Works plant. See id. ¶¶ 29–33. Nevertheless, DuPont discharged wastewater containing PFOA and other PFCs into the Cape Fear River and into "unlined biosludge settlement lagoons" that DuPont "knew or should have known ... would flow into the Cape Fear River." See id. ¶¶ 33, 37.

By 2000, plaintiffs allege that 3M had decided to stop manufacturing PFOA because of PFOA's toxicity, and DuPont began manufacturing PFOA at the Fayetteville Works plant itself. See id. ¶¶ 44, 47. Plaintiffs allege that DuPont misrepresented facts to the North Carolina Department of Environmental Quality ("DEQ") about PFOA in re-applying for its National Pollutant Discharge Elimination System ("NPDES") permit. See id. ¶¶ 45–46, 48–50. For example, DuPont represented that it did not discharge wastewater from the Fayetteville Works plant into the Cape Fear River. See id. ¶ 49. Moreover, plaintiffs allege that DuPont continued to discharge PFOA into the Cape Fear River even after the results of "the first comprehensive study of the effects of PFOA on human health ... confirmed that PFOA causes cancer and a host of other health problems in humans." Id. ¶ 51. Plaintiffs also allege that DuPont did not report numerous PFOA spills that occurred between 2011 and 2013. See id. ¶ 54.

As the EPA learned of the dangers associated with PFOA, DuPont began to search for a replacement for PFOA. See id. ¶ 58. DuPont selected GenX as the replacement for PFOA. See id. Plaintiffs allege that DuPont had been discharging GenX into the Cape Fear River since the 1980s. See id. ¶¶ 55–57. In 2009, DuPont and the EPA "reached a consent order pursuant to the Toxic Substances Control Act" to replace PFOA with GenX. Id. ¶ 59. DuPont represented that GenX would be safer than PFOA because it would biodegrade more quickly than PFOA. See id. As part of the consent order, DuPont had to investigate the toxicological properties of GenX and to "recover and capture (destroy) or recycle GenX from all the process wastewater effluent streams and air emissions ... at an overall efficiency of 99%." Id. (quotation and alteration omitted).

On March 15, 2010, DuPont submitted a study to the EPA showing that GenX, like PFOA, was not biodegradable. See id. ¶ 60. In July 2010, DuPont submitted the results from animal studies that showed that rodents exposed to GenX experienced numerous adverse health consequences, including birth defects, liver necrosis, and cellular deformation indicative of liver disease and early-stage cancer. See id. ¶¶ 61–62. DuPont...