Russell v. Tyson Farms, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

KATHY RUSSELL; TIFFANY )

ASHLEY; and KRYSTAL STASKO, )

individually and on behalf of all others )

similarly situated, )

) Case No.: 5:19-cv-1179-LCB

Plaintiffs, )

)

v. )

)

TYSON FARMS, INC. d/b/a RIVER

VALLEY INGREDIENTS; JASON

SPANN; HYDRASERVICE, INC.,

and JASPER WATER WORKS AND

SEWER BOARD, INC.

Defendants.

MEMORANDUM OPINION AND ORDER

I. Background

The complaint in this case was filed on July 24, 2019. By agreement of all

parties, the present case was consolidated with Ashley, et al, v. Tyson Farms, Inc.,

5:19-cv-1180-LCB, which was filed in this Court on the same day.1 (Doc. 56). In

the same order, this Court also stayed general discovery pending a ruling on the

various motions to dismiss filed by the defendants. Before the Court is Defendant

1 Unless otherwise indicated, all citations to the record in this memorandum opinion refer to the

record in case number 5:19-cv-1179-LCB, Russell, et al. v. Tyson, et al.

Jasper Water Works and Sewer Board’s (“JWW”) motion to dismiss. (Doc 9)2. The

motion is fully briefed and is ripe for review. For the reasons that follow, the Court

finds that JWW’s motion to dismiss is due to be DENIED.

A brief summary of the alleged facts is all that is necessary for the resolution

of the present motion. The basis of the complaint is a wastewater spill that occurred

on or about June 6, 2019, and the resulting contamination of portions of the Black

Warrior River. The Plaintiffs, a proposed class, assert that they are individuals and

businesses who were harmed by the spill. The Defendants are Tyson Farms, Inc.,

the owner of the food-processing facility at which the spill allegedly originated;

Jason Spann, the manager of the plant in question; HydraService, Inc., the

manufacturer of the equipment that allegedly failed and caused the spill; and JWW,

a non-profit corporation that provided water to citizens of Walker County, Alabama.

The Plaintiffs have asserted various state law claims against the Defendants.

According to the Plaintiffs, Tyson maintained multiple retention ponds on its

property for the purpose of treating the wastewater generated by its food-processing

operations. The Plaintiffs claim that a pipe, which was meant to transfer partially

treated wastewater from one pond to another, failed or malfunctioned thereby

causing untreated wastewater to spill into the river. Defendant HydraService is

2 JWW filed a nearly identical motion to dismiss in the companion case, Ashley, et al. v. Tyson

Farms, et al. See (Doc. 9) in 5:19-cv-1180-LCB. This memorandum opinion and order applies

equally to both motions.

alleged to have manufactured and installed a defective pump which caused the pipe

to fail. The Plaintiffs claim that JWW failed to properly notify them of the spill and

failed to take proper measures to ensure their safety both before and after the spill.

II. JWW’s Motion to Dismiss

In its motion to dismiss, JWW argues that the Plaintiffs’ claims, all state law

causes of action, are preempted by federal law. Specifically, JWW claims that the

Safe Drinking Water Act (“SDWA”) 42 U.S.C. §§ 300f et seq, occupies the field of

drinking-water regulation and leaves no room for regulation through state common

law tort claims. JWW also contends that the Plaintiffs’ claims are preempted

because, it says, they conflict with the SDWA.

A. Legal Standards

JWW moves to dismiss under Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6)

motion to dismiss attacks the legal sufficiency of the complaint. Generally, the

Federal Rules of Civil Procedure require only that the complaint provide “‘a short

and plain statement of the claim’ that will give the defendant fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S.

41, 47 (1957)(quoting Fed. R. Civ. P. 8(a)). When evaluating a Rule 12(b)(6) motion

to dismiss, a district court accepts as true the allegations in the complaint and

construes the allegations in the light most favorable to the plaintiff. See Brophy v.

Jiangbo Pharms. Inc., 781 F.3d 1296, 1301 (11th Cir. 2015). Generally, a complaint

should include “enough information regarding the material elements of a cause of

action to support recovery under some ‘viable legal theory.’” Am. Fed'n of Labor &

Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1186 (11th Cir. 2011),

quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683–84 (11th Cir.

2001).

In Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485–87 (11th Cir. 2015), the

Eleventh Circuit affirmed a district court’s dismissal of a case, pursuant to Fed. R.

Civ. P. 12(b)(6), on preemption grounds and discussed preemption as follows:

“In pre-emption cases, the question is whether state law is pre-

empted by a federal statute, or in some instances, a federal agency

action.” POM Wonderful LLC v. Coca–Cola Co., ––– U.S. ––––, 134

S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014) (citing Wyeth v. Levine, 555

U.S. 555, 563, 129 S.Ct. 1187, 1193, 173 L.Ed.2d 51 (2009)). The

Supremacy Clause of the United States Constitution provides “the

Laws of the United States ... shall be the supreme Law of the Land.”

U.S. Const. Art. VI, cl. 2. “[W]e have long recognized that state laws

that conflict with federal law are without effect.” Altria Grp., Inc. v.

Good, 555 U.S. 70, 76, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008)

(citation and internal quotation marks omitted); see Barnett Bank of

Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 1107,

134 L.Ed.2d 237 (1996) (“[T]he Supremacy Clause requires courts to

follow federal, not state, law.”).

The Supreme Court has identified three circumstantial

categories, where federal law preempts state law. First is express

preemption, where Congress defines “explicitly the extent to which its

enactments pre-empt state law.” English v. Gen. Electric Co., 496 U.S.

72, 78, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). “[W]hen

Congress has made its intent known through explicit statutory

language, the courts' task is an easy one.” Id. at 79, 110 S.Ct. at 2275;

see Chamber of Commerce of U.S. v. Whiting, 563 U.S. ––––, ––––,

131 S.Ct. 1968, 1977, 179 L.Ed.2d 1031 (2011)(noting the plain

wording of a federal statute “necessarily contains the best evidence of

Congress' preemptive intent”); Fla. State Conference of NAACP v.

Browning, 522 F.3d 1153, 1167 (11th Cir.2008) (“Express preemption

occurs when Congress manifests its intent to displace a state law using

the text of a federal statute.”).

Second is field preemption. English, 496 U.S. at 79, 110 S.Ct. at

2275. “[I]n the absence of explicit statutory language, state law is

preempted where it regulates conduct in a field that Congress intended

the Federal Government to occupy exclusively.” Id., 110 S.Ct. at 2275.

Such an intent may be inferred from a “scheme of federal

regulation ... so pervasive as to make reasonable the

inference that Congress left no room for the States to

supplement it,” or where an Act of Congress “touches a

field in which the federal interest is so dominant that the

federal system will be assumed to preclude enforcement

of state laws on the same subject.”

Id., 110 S.Ct. at 2275 (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)) (alteration

omitted). “Field preemption reflects a congressional decision to

foreclose any state regulation in the area, even if it is parallel to federal

standards.” Arizona v. United States, ––– U.S. ––––, ––––, 132 S.Ct.

2492, 2502 (2012).

Third is conflict preemption, which occurs when “state law is

pre-empted to the extent that it actually conflicts with federal law.”

English, 496 U.S. at 79, 110 S.Ct. at 2275. Conflict preemption exists

“where it is impossible for a private party to comply with both state and

federal requirements or where state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.’” Id., 110 S.Ct. at 2275 (quoting Hines v. Davidowitz, 312

U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)) (citations omitted).

“[S]ince our decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 427, 4 L.Ed. 579 (1819), it has been settled that state law that

conflicts with federal law is ‘without effect.’” Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992)

(quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114,

2128, 68 L.Ed.2d 576 (1981)); see Baptista v. JPMorgan Chase Bank,

N.A., 640 F.3d 1194, 1197 (11th Cir. 2011)(recognizing “the proper

preemption test asks whether there is a significant conflict between the

state and federal statutes—that is, the test for conflict preemption”).

In the present case, JWW argues that the Plaintiffs’ claims are subject to field

preemption and conflict preemption. The Court now turns to JWW’s arguments.

B. JWW’s Arguments

a. The SDWA occupies the field and leaves no room for state

common law claims.

JWW first argues that the Plaintiffs’ claims are preempted because, it says,

Congress intended to occupy the field of drinking-water regulation when it passed

the SDWA. JWW contends that allowing a suit for common law tort claims would

frustrate this purpose and, therefore, is preempted.

The primary case JWW relies on in support of that argument is Mattoon v.

City of Pittsfield, 980 F.2d 1 (1st Cir. 1992), in which the First Circuit characterized

the SDWA as a “comprehensive federal statutory scheme[],” and held that it

preempted a federal common law nuisance claim as well as a § 1983 claim. In

Mattoon, the First Circuit aptly analyzed the SDWA, noting its purpose and broad

scope and explaining how it provides for the federal government to work with the

states to regulate the types and amounts of contaminants in their water supplies. The

First Circuit held that “the regulatory scheme established under the SDWA evinces

a clear congressional intention to entrust the regulation of public drinking water

systems to an expert regulatory agency rather than the courts.” Id. at 4–5. Therefore,

the Court reasoned, the appellant’s federal common law nuisance claim and its §

1983 claim were preempted.

JWW quotes the above language in support of its proposition that the holding

in Mattoon should apply with equal force to its claim in the present case. However,

the analysis in Mattoon was focused on whether “federal statutory or federal

common law standards should control the field.” Id. at 4. The primary case relied

on in that analysis was Milwaukee v. Illinois & Michigan, 451 U.S. 304 (1981), in

which the United States Supreme Court held that the Clean Water Act, 33 U.S.C. §

1251 et seq., (“CWA”), a similar environmental protection act3, preempted federal

common law nuisance claims seeking to abate water pollution. In addressing an

argument similar to the one raised by JWW, the Supreme Court explained that the

analysis of whether a federal statute preempts state law is different from the analysis

regarding preemption of federal common law:

Contrary to the suggestions of respondents, the appropriate analysis in

determining if federal statutory law governs a question previously the

subject of federal common law is not the same as that employed in

deciding if federal law pre-empts state law. In considering the latter

question “‘we start with the assumption that the historic police powers

of the States were not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.’” Jones v. Rath

Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604

(1977) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67

S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). While we have not hesitated

3 The Eleventh Circuit has compared the CWA with the SDWA in interpreting the meanings of words contained in

the statutes. See Friends of the Everglades, Inc. v. S. Fla. Water Mgmt. Dist., No. 02-80309-CIV, 2005 WL

8156096, at *1 (S.D. Fla. July 5, 2005)(comparing “the express inclusion of Indian tribes as ‘persons’ in several

federal pollution control laws” including the CWA and the SDWA).

to find pre-emption of state law, whether express or implied, when

Congress has so indicated, see Ray v. Atlantic Richfield Co., 435 U.S.

151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978), or when

enforcement of state regulations would impair “federal superintendence

of the field,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), our analysis has

included “due regard for the presuppositions of our embracing federal

system, including the principle of diffusion of power not as a matter of

doctrinaire localism but as a promoter of democracy.” San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773,

778, 3 L.Ed.2d 775 (1959). Such concerns are not implicated in the

same fashion when the question is whether federal statutory or federal

common law governs, and accordingly the same sort of evidence of a

clear and manifest purpose is not required.

City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 316–17 (1981). Thus, the

Plaintiffs’ contention that Mattoon does not support JWW’s argument is well taken.

Mattoon says nothing about the relationship between the SDWA and state common

law tort claims, and its holding that the SDWA preempts federal common law

nuisance claims does not imply that it also preempts state common law tort claims.

JWW cited other cases in support of its proposition. However, like Mattoon, those

cases did not discuss the relationship of the SDWA, or any other federal statute, with

state law causes of action.

In its response to JWW’s motion to dismiss, the Plaintiffs cite International

Paper v. Oullette, 479 U.S. 481 (1987), in which the Supreme Court discussed the

relationship between state law and the Clean Water Act, a similarly constructed

federal environmental statute. In Oullette, the plaintiff, a Vermont landowner, sued

a New York pulp mill in a Vermont state court for allegedly discharging pollutants

into a Lake Champlain that damaged his property in Vermont. The question

presented was “whether the [Clean Water] Act pre-empt[ed] a common-law

nuisance suit filed in a Vermont court under Vermont law, when the source of the

alleged injury is located in New York.” Id. at 483. The Court thoroughly analyzed

the CWA and specifically noted that the Act allowed states to enact their own water-

pollution regulations so long as those regulations were no less stringent than the

regulations provided in the Act4. In contrast, affected states that are subject to

pollution originating in source states have only the right to notice and to comment

before the issuance of a federal or source state permit. The Court held that applying

an “affected State's law to an out-of-state source [] would undermine the important

goals of efficiency and predictability in the permit system.” Id. at 496. Accordingly,

the Court held that a plaintiff in an affected state could not sue an out-of-state

defendant in the plaintiff’s home state under that state’s common law.

However, the Court went on to hold as follows:

Our conclusion that Vermont nuisance law is inapplicable to a New

York point source does not leave respondents without a remedy. The

CWA precludes only those suits that may require standards of effluent

control that are incompatible with those established by the procedures

set forth in the Act. The saving clause specifically preserves other state

actions, and therefore nothing in the Act bars aggrieved individuals

from bringing a nuisance claim pursuant to the law of the source State.

By its terms the CWA allows States such as New York to impose higher

standards on their own point sources, and in Milwaukee [v Wisconsin

& Michigan, 451 U.S. 304 (1981)] we recognized that this authority

4 The SDWA contains similar provisions regarding state regulations.

may include the right to impose higher common-law as well as higher

statutory restrictions. 451 U.S., at 328, 101 S.Ct., at 1798 (suggesting

that “States may adopt more stringent limitations ... through state

nuisance law, and apply them to in-state dischargers”); see also

Committee for Jones Falls Sewage System v. Train, 539 F.2d 1006,

1009, and n. 9 (CA4 1976) (CWA preserves common-law suits filed in

source State).

Int'l Paper Co. v. Ouellette, 479 U.S. 481, 497–98, 107 S. Ct. 805, 814, 93 L. Ed. 2d

883 (1987). Thus, the Supreme Court held that a saving clause in the CWA

preserved common law suits as long as the suits were filed in the proper jurisdiction,

i.e., the state containing the point source of the pollution. The Court then held that,

“[a]lthough Congress intended to dominate the field of pollution regulation, the

saving clause negates the inference that Congress ‘left no room’ for state causes of

action.” Ouellette, 479 U.S. at 492. “Because the Act specifically allows source

States to impose stricter standards, the imposition of source-state law does not

disrupt the regulatory partnership established by the permit system.” Id. at 498.

“Nothing in the Act prevents a court sitting in an affected State from hearing a

common-law nuisance suit, provided that jurisdiction otherwise is proper.” Id. at

500.

The saving clause from the CWA5 that the Supreme Court relied on in Oullette

consisted of two sections of the Act which provide, in pertinent part:

5 In its reply brief, JWW notes that the saving clause in the SDWA is “almost identical” to the

saving clause in the CWA. (Doc. 35, p. 4).

Except as expressly provided ..., nothing in this chapter shall ... be

construed as impairing or in any manner affecting any right or

jurisdiction of the States with respect to the waters (including boundary

waters) of such States.

33 U.S.C. § 1370; and,

Nothing in this section shall restrict any right which any person (or class

of persons) may have under any statute or common law to seek

enforcement of any effluent standard or limitation or to seek any other

relief....

33 U.S.C. § 1365(e). Those sections are similar to saving clause contained in the

SDWA. 42 U.S.C. § 300g-3(e), provides:

Nothing in this subchapter shall diminish any authority of a State or

political subdivision to adopt or enforce any law or regulation

respecting drinking water regulations or public water systems, but no

such law or regulation shall relieve any person of any requirement

otherwise applicable under this subchapter.

Additionally, 42 U.S.C. § 300j-8(e), provides:

Nothing in this section shall restrict any right which any person (or class

of persons) may have under any statute or common law to seek

enforcement of any requirement prescribed by or under this subchapter

or to seek any other relief.

This Court finds that the saving clause in the SDWA serves the same purpose as the

clauses in the CWA. Thus, for the same reasons put forth by the Supreme Court in

Oullette, this Court holds that state law causes of action like those alleged in this

case are not preempted by the SDWA. Accordingly, nothing in the SDWA would

prevent an Alabama trial court, or this Court sitting in diversity, from hearing a

common law tort action arising out of an incident that occurred within Alabama.

As noted, JWW concedes that the savings clause in the CWA is “almost

identical” to the savings clause in the SDWA. (Doc. 35, p. 4). However, it attempts

to distinguish Oullette by referring to a portion of the opinion that appears to support

its argument. See (Doc. 35, p. 4)(“Section 300j-8(e) is expressly limited to the

section of the SDWA that provides a private right of action, i.e., the SDWA’s citizen

suit provision…. The Supreme Court [in Oullette] has already noted the limited

scope of almost identical savings clauses.”). However, the language quoted by JWW

is from a section of Oullette in which the Court was discussing the question of

whether the CWA allows plaintiffs from an affected state to bring suit against out-

of-state polluters. See Oullette, 479 U.S. at 492-94. JWW ignores the implication

of the ultimate holding in Oullette, i.e., that common law causes of action brought

against a source state under the source state’s law are not preempted.

JWW cites other cases which discuss the preemptive effect of saving clauses

from other statutes such as Geier v. Am. Honda Motor Co., 529 U.S. 861

(2000)(holding that the National Traffic and Motor Vehicle Safety Act’s savings

clause did not foreclose or limit operation of ordinary preemption principles), and

Am. Telephone & Telegraph Co., 524 U.S. 214 (1998)(holding that a section of the

Communications Act preempted state law claims). However, none of the cases cited

in JWW’s reply involve the SDWA, the CWA, or any other similar environmental

statute. JWW cites portions of those cases in which the Supreme Court discusses

how the saving clauses in other statutes do not preclude preemption. However, none

of the cases cited by JWW alter the holding in Oullette.

b. The Plaintiffs’ claims conflict with the SDWA.

JWW next argues that the Plaintiffs’ claims are preempted because, it says,

the claims conflict with the SDWA. JWW discusses various requirements of the

SDWA and cites to portions of the Act mandating that the Administrator of the EPA

exercise his or her judgment in carrying out certain tasks. However, as discussed in

the previous section, the Supreme Court took similar requirements from the CWA

into consideration when it held in Oullette that state common law claims were not

preempted. That Court thoroughly addressed the dual roles of states and the EPA in

enacting and enforcing regulations concerning water pollution. JWW’s argument

that such lawsuits “would interfere with Congress’s intent and the processes it

mandated for development of national public drinking water regulations” was

considered and foreclosed in Oullette. JWW has cited no contrary authority.

III. Conclusion

For the foregoing reasons, the Court finds that the SDWA does not preempt

the state law claims brought by the Plaintiffs in this case. Accordingly, JWW’s

motion to dismiss (Doc. 9) is DENIED.

DONE and ORDERED March 30, 2020.

io SZ C Sha

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

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