United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
Waters Works and Sewer Board of Gadsden brought suit against
more than thirty manufacturers, distributors, and users of
chemicals in Etowah County Circuit Court; the Board alleged
that the Defendants had contaminated the Board's water
source with perfluorinated chemicals. The Defendants
represent the majority of the carpet industry in North
America and are concentrated around Dalton, Georgia. However,
Defendant Industrial Chemicals is an Alabama corporation
based in Birmingham. Defendant Shaw Enterprises removed the
case to federal court, alleging that the Board had
fraudulently joined Industrial Chemicals to defeat diversity
jurisdiction. The Board moved to remand the case, arguing
that Industrial Chemicals was properly joined and, therefore,
complete diversity did not exist and thus the court lacked
subject matter jurisdiction.
the court agrees that Industrial Chemicals was not
fraudulently joined, it will grant the Board's motion and
remand this case to state court.
Allegations in the Complaint
the scope of this action, the allegations in the complaint
are simple. Plaintiff Water Works and Sewer Board of the City
of Gadsden is the public water supplier to the City of
Gadsden, Alabama, and the surrounding area. The Board draws
its source water from the Coosa River at a point downstream
from Dalton, Georgia, and has recently learned that its water
supply is contaminated with perfluorinated chemicals (PFCs),
including perfluorooctanoic acid (PFOA) and perfluorooctane
Board has named manufacturers, suppliers, and users of PFCs
as Defendants it believes are jointly liable to it for
negligence, nuisance, trespass, and wantonness for causing
the presence of the chemicals in the Board's water
source. Because of the contamination, the Board says it has
lost profits as customers have switched to other sources of
water. Further, the Board says its current water filtration
system cannot remove or reduce PFC levels in the water to the
level recommended by the EPA.
Evidence Provided to the Court
Evidence Submitted by the Plaintiff
Board submitted evidence about industrial use of PFCs,
including a white paper from the Association of State and
Territorial Solid Waste Management Officials (ASTSWNO)
Federal Facilities Research Center's Remediation and
Reuse Focus group on PFCs. See (Doc. 164-2). The
paper notes that PFOA and PFOS are the two most prevalent
types of PFCs, and that PFCs have been used by companies to
make fluropolymer coatings and products that are oil and
water repellent, including clothing, upholstery, paper,
carpets, and non-stick cookware. Additionally, the National
Institute of Environmental Health says that PFCs can be used
to ensure that products, such as carpet and sofas, are
resistant to stains. See (Doc. 164-3 at 2).
are also used in other compounds. An OECD/UNEP Global PFC Group
Synthesis Paper submitted by the Board also mentions that
PFCs are sometimes components of foaming agents and hydraulic
fluids. See (Doc. 164-6). According to research
cited by the ASTSWNO paper, the highest concentrations of
PFCs are found in areas with direct discharge from industries
that utilize PFCs.
Board also submitted an Environmental Protection Agency
question and answer document on PFC contamination in Dalton,
Georgia. The EPA believes that PFC contamination in Dalton
results from industrial discharge by carpet manufacturers.
See (Doc. 164-4 at 5). Finally, the Board has also
submitted evidence regarding Industrial Chemicals'
business and its potential relationship to PFCs. Industrial
Chemicals, an Alabama corporation, maintains a distribution
site in Dalton, and its advertising materials say it sells
“textile chemicals, ” “surfactants, ”
and “polymers, ” as well as foaming agents,
hydraulic fluids, and metal plating and finishing chemicals.
(Doc. 164-5 at 2-3). Industrial Chemicals is also a
distributor for Omni-Chem136, which supplies over
5, 000 different chemical products.
Board also notes that distribution is not the sole focus of
Industrial Chemicals' business. According to the
company's website, it also transports and disposes of
waste materials. See (Doc. 193-5).
Evidence Submitted by the Defendants
notice of removal and also in opposition to the Board's
motion to remand, the Defendants provided numerous affidavits
to establish that the Board fraudulently joined Industrial
Chemicals. The affidavits fall into three general categories:
Industrial Chemicals officers; expert testimony; and the
other Defendants stating they did not buy chemicals
containing PFCs from Industrial Chemicals.
Defendants have provided two affidavits from Chip Welch, the
CEO/President of Industrial Chemicals. In his first
affidavit, Mr. Welch says that Industrial Chemicals has never
used PFCs during a manufacturing process or marketed or sold
chemicals designed to create water or stain resistance.
Industrial Chemicals had records of sales dating from 2005.
Mr. Welch reviewed sales made to Defendants and ...