Boeing Co. will be forced to face a toxic pollution lawsuit in state court by 108 residents of Auburn, Washington who claim Boeing and the firm hired to clean-up the toxics were negligent in removal of the chemicals seeping into groundwater.
The 9th U.S. Circuit Court of Appeals awarded the residents their day in state court.
The appeals panel upheld a trial judge’s decision that the case must be sent back to state court, rather than federal court as Boeing wanted, for resolution under the Class Action Fairness Act (CAFA).
The local residents who sued claimed that Boeing and its clean-up firm, Landau Associates, was negligent in its investigation and remediation of the pollution of solvents used by Boeing from the 1960s to 1990s.
The solvents contained hazardous chemical used in airplane-parts manufacturing at Auburn. In 1987, the state initiated requirements for treatment, storage and handling of hazardous materials. Over the years it was discovered that a plume of toxic chemicals was spreading underground away from one particular building at Boeing and onto nearby private land.
In 2009, Boeing and its monitoring and clean-up firm, Landau Associates, identified the chemicals. The residents claim Boeing and Landau failed to investigate and remediate the pollution and failed to warn neighboring property owners.
In 2013, the local residents sued in state court accusing Boeing and Landau of trespass against Boeing and negligence against Landau.
A year later Boeing moved the case to federal court where rules would be more sympathetic to Boeing. The plaintiffs have been fighting to get the case sent back to state court ever since.
One issue was whether the plaintiffs were seeking “significant relief” from Landau, or simply seeking the bulk of relief from Boeing.
Judge Connie Callahan wrote, “If Landau is shown to have failed, for more than a decade, to remediate the spreading toxic chemical plumes, its liability could be as great as Boeing’s. Thus, the fact that Boeing created the pollution does not in itself render insignificant the damages caused by Landau’s alleged failure to investigate and remediate the spreading pollution.”
The panel found the complaint allows the residents to invoke the “local controversy exception” to CAFA and thus to return the case to state court.
Case: Allen v. Boeing, No. 16-35175