Taylor et al v. Denka Performance Elastomer LLC et al
Filing
112
ORDER and REASONS denying 106 Motion to Dismiss under Rule 12(b)(6), as stated herein. Signed by Judge Martin L.C. Feldman on 10/31/2018. (Reference: 17-7668)(cbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT TAYLOR, JR., ET AL
CIVIL ACTION
v.
NO. 17-7668
DENKA PERFORMANCE ELASTOMER LLC, ET AL
SECTION "F"
ORDER AND REASONS
Before the Court is the defendant’s motion to dismiss under
Rule 12(b)(6). For the following reasons, the motion is DENIED.
Background
This environmental tort litigation arises from the production
of neoprene at the Pontchartrain Works Facility (“PWF”) in St.
John the Baptist Parish. Neoprene production allegedly exposes
those living in the vicinity of the PWF to concentrated levels of
chloroprene well above the upper limit of acceptable risk, and may
result in a risk of cancer more than 800 times the national
average.
Thirteen people living St. John the Baptist Parish filed this
lawsuit
originally
seeking
injunctive
relief
in
the
form
of
abatement of chloroprene releases from their industrial neighbor,
the PWF. The PWF is the only facility in the United States still
manufacturing neoprene, which is made from chloroprene, and which
1
the Environmental Protection Agency has classified as a “likely
human carcinogen.”
These facts are drawn from the allegations advanced in the
Third Amended and Restated Complaint.
E.I. Dupont de Nemours &
Co. (“DuPont”) invented neoprene in 1931.
Neoprene is a synthetic
rubber used in chemical and weather resistant products such as wet
suits and orthopedic braces.
It is also used as a base resin in
adhesives, electrical insulation, and coatings.
In 1969, DuPont
built a neoprene manufacturing unit at its Pontchartrain Works
facility in LaPlace, Louisiana.
Chloroprene, a component of
neoprene, is manufactured at the site.
During the manufacturing
process, chloroprene is emitted into the air and discharged into
the water.
By 2008, the PWF was the only facility manufacturing neoprene
in the United States.
PWF
to
Denka
Effective November 1, 2015, DuPont sold the
Performance
Elastomer
LLC,
but
DuPont
retained
ownership of the land underlying the facility.
It
is
alleged
that
Denka
had
knowledge
of
harmful
concentrations of chloroprene emitted from the PWF, but concealed
2
its
knowledge
Protection
and
Agency
associated
(“EPA”),
data 1
the
from
the
Louisiana
Environmental
Department
of
Environmental Quality (LDEQ), and local St. John the Baptist Parish
officials. The EPA, in addition to classifying chloroprene as a
“likely human carcinogen” has noted that
[s]ymptoms reported from acute human exposure to high
concentrations
of
chloroprene
include
giddiness,
headache, irritability, dizziness, insomnia, fatigue,
respiratory irritation, cardiac palpitations, chest
pains, nausea, gastrointestinal disorders, dermatitis,
temporary hair loss, conjunctivitis, and corneal
necrosis....
Acute exposure may [also]: damage the
liver, kidneys, and lungs; affect the circulatory system
and immune system; depress the central nervous system
(CNS); irritate the skin and mucous membranes; and
cause...respiratory difficulties in humans.
The agency has also concluded that the primary route of exposure
to chloroprene is through inhalation.
In December 2015, the EPA again classified chloroprene as a
likely
human
carcinogen
when
it
released
a
screening-level
National Air Toxics Assessment (NATA), which analyzes exposure
levels to toxins, estimates the expected number of incidences of
cancer per one million people based on exposure to air toxins from
industry, and also announces an upper limit of “acceptable risk”
Including an alleged Material Safety Data Sheet that noted that
“respiratory irritation, eye irritation, and nausea and vomiting
can result from exposure to chloroprene.”
3
1
threshold. 2
The
NATA
acceptable
risk
exposure
threshold
for
chloroprene was established as 0.2 µg/m³; that is, chloroprene
emissions must stay below .2 micrograms per cubic meter 3 in order
to comply with the limit of acceptable risk threshold (which is a
risk of 100 in one million people).
Despite knowledge of this upper limit of the acceptable risk
threshold, it is alleged that DPE continues to emit chloroprene at
hundreds of times the 0.2 µg/m³ threshold. Since May 25, 2016, the
EPA has collected 24-hour air samples every three days from six
locations around the Pontchartrain Works facility; air samples at
all
six
locations
threshold.
DPE’s
surrounding
the
frequently
own
exceed
sampling
facility
700
numbers
indicate
that
times
at
the
five
average
0.2
µg/m³
locations
chloroprene
emissions range from 20.4 to 33.25 times the 0.2 µg/m³ threshold.
The EPA’s National Enforcement Investigation Center (“NEIC”)
conducted a Clean Air Act (“CAA”) inspection of the Pontchartrain
Works facility in June 2016. 4 A copy of the redacted inspection
Exposure above the designated “acceptable risk” represents an
unacceptable risk of cancer from exposure from the toxin.
3 The concentration of an air pollutant is measured in units of
density.
4 Meanwhile,
representatives of DuPont and DPE allegedly told
members of the community that there was no danger arising from the
facility’s chloroprene emissions, and on December 8, 2016, LDEQ
Secretary Chuck Brown told members of the community that those
expressing
concern
regarding
chloroprene
emissions
were
4
2
report from the EPA’s CAA inspection was publicized on April 3,
2017. The NEIC inspection report revealed various areas of noncompliance by both DuPont and DPE 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.
On January 6, 2017, DPE entered into an Administrative Order
on
Consent
(“AOC”)
with
LDEQ
with
a
target
to
reduce
its
chloroprene emissions by 85 percent. Even if this reduction is
achieved, the plaintiffs allege that DPE’s emission levels will
nevertheless exceed the 0.2 µg/m³ threshold. In any event, it is
alleged that DPE has failed to meet all interim requirements for
emission controls and emissions concentrations that it agreed to
in the AOC.
According to the EPA, “[t]he top 6 census tracts with the
highest NATA-estimated cancer risks nationally are in Louisiana
due to Denka (formerly DuPont) chloroprene emissions.” The NATA
“fearmongerers” and, plaintiffs submit, he said, “forget about
0.2.”
5
assessment reports that the cancer risk for the census tracts in
the vicinity of the Pontchartrain Works facility is 3.365 per
million, while the cancer risk from chloroprene exposure in those
census tracts ranges from 158.515 to 768.46 per million, all well
above the acceptable risk level recommended by the EPA.
Instead of reducing chloroprene emissions in compliance with
the
EPA’s
0.2
µg/m³
threshold,
on
June
26,
2017,
DPE
representatives submitted a Request for Correction to the EPA in
which they sought to increase the 0.2 µg/m³ threshold in order “to
prevent further significant damage to” their business. 5
Robert Taylor, Jr., individually and on behalf of his minor
daughter, N.T., Kershell Bailey, Shondrell P. Campbell, Gloria
Dumas,
Janell
Emery,
George
Handy,
Annette
Houston,
Rogers
Jackson, Michael Perkins, Allen Schnyder, Jr., Larry Sorapuru,
Sr., 6 Kellie Tabb, and Robert Taylor, III are all individuals
living near the PWF in Reserve, Edgard, and LaPlace, Louisiana. On
June
29,
2017,
representatives
of
these
a
individuals,
putative
class
individually
of
similarly
and
as
situated
On January 25, 2018, the EPA wrote a detailed letter to DPE,
rejecting its Request for Correction. The EPA’s response leaves
undisturbed its determinations that chloroprene is a likely human
carcinogen and 0.2 µg/m³ is the upper limit of acceptable risk
exposure threshold for chloroprene.
6
The Court has previously called attention to this person’s
petulant public comments.
6
5
plaintiffs, sued DPE and DuPont in the Louisiana 40th Judicial
District Court in St. John the Baptist Parish. The plaintiffs
allege that DuPont has emitted chloroprene for many years at levels
resulting
in
concentrations
many
times
the
upper
limit
of
acceptable risk, and DPE continues to do so. The plaintiffs advance
Louisiana state law causes of action for nuisance, trespass,
negligence, and strict liability; they seek injunctive relief in
the
form
of
abatement
concentration
of
of
chloroprene
chloroprene
does
not
releases
exceed
such
the
that
0.2
the
µg/m³
threshold; damages for deprivation of enjoyment of occupancy of
property;
punitive
damages;
and
additional
damages
including
medical monitoring to the extent personal injury claims become
mature.
The defendants jointly removed the lawsuit, invoking this
Court’s diversity jurisdiction. The Court denied the plaintiffs’
motion to remand. The plaintiffs filed an untimely request to
extend
the
deadline
to
seek
class
certification,
which
the
defendants opposed. The Court denied the plaintiffs’ request to
extend the deadline to seek class certification, and later denied
the plaintiffs’ motion to reconsider its ruling. See Order and
Reasons dtd. 2/22/18.
Thereafter, the plaintiffs filed their Second Amended and
Restated Class Action Complaint and DPE and DuPont filed Rule 12
7
motions to dismiss. On July 26, 2018, this Court granted DuPont’s
motion to dismiss for lack of subject matter jurisdiction, but
allowed
the
plaintiffs
to
amend
their
complaint
to
correct
deficiencies in their nuisance allegations as they apply to DPE.
See Order and Reasons dtd. 7/26/18. The plaintiffs then filed a
Third Amended and Restated Complaint solely against DPE, seeking
injunctive relief only for the nuisance claim. DPE now moves to
dismiss the third amended complaint under 12(b)(6).
I.
Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
for the dismissal of a complaint for failure to state a claim upon
which relief can be granted. Such motions are rarely granted
because they are viewed with disfavor. See Lowrey v. Tex. A & M
Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
A pleading must contain a "short and plain statement of the
claim showing that the pleader is entitled to relief." Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he
pleading
'detailed
factual
standard
Rule
8
allegations,'
8
announces
but
it
does
demands
not
more
require
than
an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a motion to dismiss under Rule 12(b)(6), the
Court “accept[s] all well-pleaded facts as true and view[s] all
facts in the light most favorable to the plaintiff.” See Thompson
v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing
Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675
F.3d 849, 854 (5th Cir. 2012)(en banc)). The Court will not accept
conclusory allegations in the complaint as true. Id. at 502-03
(citing Iqbal, 556 U.S. at 678).
To survive dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful
in
fact).”
Twombly,
550
U.S.
at
555
(citations
and
footnote omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
9
for more than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the
line
between
possibility
and
plausibility
of
entitlement
to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557). “[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
II.
The
defendants
move
to
Discussion
dismiss
this
lawsuit
under
Rule
12(b)(6) on the grounds that the plaintiffs still fail to plead a
plausible
claim
for
relief.
The
defendants
contend
that
the
plaintiffs fail to allege factual and legal elements to state a
claim for injunctive relief and that the plaintiffs’ nuisance claim
fails to plead factual allegations based on their alleged exposure
to chloroprene.
The plaintiffs counter that their third amended complaint
alleges specific facts regarding how Denka’s chloroprene emissions
constitute a nuisance for each plaintiff. The plaintiffs further
10
submit that the defendants ignore the permissive 12(b)(6) standard
by
arguing
numerous
fact
issues
regarding
causation
of
the
plaintiffs’ alleged harms and that this procedural stage is not
proper for such arguments. The Court agrees.
A.
The Court observes, as it did in its previous Order and
Reasons allowing the plaintiffs to amend their complaint, that the
plaintiffs’ allegations suffice to state a claim for nuisance
within the meaning of Louisiana Civil Code articles 667-669. The
Louisiana Supreme Court has observed:
These obligations of vicinage are legal servitudes imposed on
the owner of property. These provisions embody a balancing
of rights and obligations associated with the ownership of
immovables.
As a general rule, the landowner is free to
exercise his rights of ownership in any manner he sees fit.
He may even use his property which “...occasion some
inconvenience to his neighbor.”
However, his extensive
rights do not allow him to do “real damage” to his neighbor.
Rodrigue v. Copeland, 475 So.2d 1071, 1077 (La. 1985). Nuisance
describes the type of conduct that violates the Code.
Louisiana Civil Code article 667, Limitations on use of
property, states:
Although a proprietor may do with his estate whatever he
pleases, still he cannot make any work on it, which may
deprive his neighbor of the liberty of enjoying his own, or
which may be the cause of any damage to him. However, if the
work he makes on his estate deprives his neighbor of enjoyment
or causes damage to him, he is answerable for damages only
upon a showing that he knew or, in the exercise of reasonable
care, should have known that his works would cause damage,
11
that the damage could have been prevented by the exercise of
reasonable care, and that he failed to exercise such
reasonable care....
Louisiana Civil Code article 668, Inconvenience to neighbor,
states:
Although one be not at liberty to make any work by which his
neighbor’s buildings may be damaged, yet every one has the
liberty of doing on his own ground whatsoever he pleases,
although it should occasion some inconvenience to his
neighbor.
Thus he who is not subject to any servitude originating from
a particular agreement in that respect, may raise his house
as high as he pleases, although by such elevation he should
darken the lights of his neighbor’s house, because this act
occasions only an inconvenience, but not a real damage.
Louisiana
Civil
Code
article
669,
Regulation
of
inconvenience, states:
If the works or materials for any manufactory or other
operation, cause an inconvenience to those in the same or in
the neighboring houses, by diffusing smoke or nauseous smell,
and there be no servitude established by which they are
regulated, their sufferance must be determined by the rules
of the police, or the customs of the place.
B.
Unlike the plaintiffs’ second amended complaint, this time,
the
plaintiffs
offer
not
only
detailed
“background
facts”
providing an overview of the PWF and the EPA’s designation of
chloroprene as a likely human carcinogen, but also a factual
predicate detailing how the chloroprene exposure constitutes a
nuisance allegedly perpetrated as to each plaintiff. Paragraph 45
12
of the third amended complaint states that each plaintiff has been
“deprived of enjoyment of his or her property and has thus incurred
harm, due to exposure to unacceptably high concentrations of
chloroprene emissions in excess of 0.2 µg/m³ . . . and that
deprivation
of
enjoyment
thereby
constitutes
a
nuisance.”
Paragraph 45 is followed by individualized descriptions and facts
detailing
each
plaintiff’s
alleged
harm
due
to
chloroprene
exposure. Each plaintiff specifically alleges that time spent
outdoors or exposure to outside air on their properties manifests
itself in the form of, among other alleged injuries, chronic
headaches, fatigue, chest pain, stomach problems, kidney disease,
skin
irritation,
occasional
chest
pain,
and
dizziness.
The
defendant submits that the third amended complaint alleges merely
speculative injuries and that there must be more than unfounded
fear on the part of the plaintiffs to state an actionable nuisance
cause of action. Yet, in paragraph 47, the plaintiffs allege that
several of the plaintiffs have taken urinalysis tests that have
confirmed the presence of chloroprene metabolites in their bodies.
Accepting
injuries
the
and
plaintiffs’
fear
of
allegations
chloroprene
as
true,
exposure
these
rise
alleged
above
the
speculative level. 7
7
Whatever the facts will survive a merits contest awaits trial.
13
Each
plaintiff
further
submits
that
these
physical
manifestations of their alleged chloroprene exposure abate when
inside their homes or away from their properties. 8 The defendant
disputes the causation of these injuries and suggests that any
number of sources could be responsible for the symptoms.
so.
Maybe
But at this procedural stage, it is not the appropriate
setting for dismissal.
The Court finds that the latest complaint contains sufficient
factual allegations to state a nuisance claim and avoid dismissal.
Accordingly, IT IS ORDERED: that the defendant’s motion to
dismiss is DENIED.
New Orleans, Louisiana, October 31, 2018
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
Paragraph 45.13 alleges that one plaintiff, on the advice of her
physician, has even relocated outside the area allegedly affected
by chloroprene exposure, and her symptoms have since abated. In
paragraph 45.5, another plaintiff who is employed as a delivery
driver, attempts to take routes outside the alleged affected area
to avoid the symptoms he usually experiences when outdoors. These
more detailed factual allegations stand in stark contrast to the
generic allegations set forth in prior complaints, and survive
Rule 12(b)(6) dismissal.
14
8
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