Salerno v. City of Niagara Falls

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

Class Representatives Dolly )

Salerno and Diane Amantia, )

individually and on behalf )

of all others similarly )

situated, )

)

Plaintiffs, )

)

v. ) Case No. 1:18-cv-304

)

City of Niagara Falls; )

Niagara Falls Water Board; )

Occidental Petroleum )

Corporation, individually and )

as successor in interest to )

Conestoga Rovers & )

Associates; Miller Springs )

Remediation Management, Inc.; )

Sevenson Environmental )

Services, Inc.; Gross PHC )

LLC, individually and as )

successor in interest to )

David Gross Contracting )

Corp. and/or Gross Plumbing )

and Heating Co., Inc.; NRC )

NY Environmental Services, )

Inc., individually and as )

successor in interest to )

Op-Tech Environmental )

Services; Roy’s Plumbing, )

Inc.; and Scott Lawn Yard, )

Inc., )

)

Defendants. )

OPINION AND ORDER

This case arises out of efforts to clean up and control

toxic chemicals discovered decades ago at Love Canal. Plaintiffs

Dolly Salerno and Diane Amantia claim that the City of Niagara

Falls, other governmental organizations and various private

entities failed in the remediation and management of the Love

Canal site, resulting in toxic chemicals spreading into local

neighborhoods. As a result of exposure to such chemicals,

Plaintiffs have allegedly suffered mental, physical and financial

harm.

Now before the Court are Defendants’ joint and individual

motions to dismiss. The joint motion asserts that Plaintiffs’

claims are preempted by federal law and are too conclusory to

state plausible claims for relief. Certain individual Defendants

have offered additional arguments for dismissal, including

defenses related to notice and timeliness. For the reasons set

forth below, the motions to dismiss are granted.

Factual Background

Plaintiffs and the putative class representatives are

current or previous residents of the Love Canal area of Niagara

Falls, New York. The Love Canal site (“Love Canal” or “Site”) is

an abandoned canal that was used as a waste disposal area between

1942 and 1954. The First Amended Complaint alleges that Hooker

Chemicals & Plastics Corporation (now Defendant Occidental

Chemical Corporation) disposed of 22,000 tons of drummed liquid

chemical waste during that time period. The City of Niagara also

allegedly disposed of municipal waste from 1953 to 1954.

Testing at the Site in the late 1970s revealed that numerous

toxic chemicals had migrated into the surrounding neighborhoods.

In 1978, the New York State Department of Health identified more

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than 80 chemicals in the original disposal area and adjacent

soils. That same year, the New York State Commissioner of Health

ordered the closure of a local public school and recommended that

pregnant women and children under the age of two immediately

evacuate the area. Residents were also advised to avoid using

their basements as much as possible and to avoid consuming home-

grown produce.

In August 1978, President Carter issued an emergency

declaration providing federal funding for remedial work to

contain the chemical waste, and for the relocation of nearby

residents. In October 1978, remedial operations began with the

installation of a system of drains, trenches, and wells to

collect leachate at the Site. The leachate was ultimately

treated at an on-site treatment facility before being discharged

into the Niagara Falls sanitary sewer system.

In 1980, President Carter issued a second emergency

declaration providing additional funds to establish the Emergency

Declaration Area (“EDA”) and purchase homes for those residents

who were evacuated or wanted to leave. After a near–complete

evacuation, the government placed an eight-foot high chain-link

fence around the original disposal area, vacant houses were

demolished, and a 22-acre clay cap with a minimum three-foot

thickness was installed. That same year, Congress passed the

Comprehensive Environmental Response, Compensation, and Liability

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Act (“CERCLA”) which, among other things, outlined a

government-mandated remedy (“Remedy”) of the Site that included

ongoing monitoring and maintenance. The Environmental Protection

Agency (“EPA”) and the New York State Department of Environmental

Conservation (“DEC”) were jointly tasked with the Site’s

remediation.

Between 1978 and 1982, a number of cleanup measures were

conducted at the Site. In July 1982, the EPA issued a Decision

Memorandum (“DM”) documenting remedial activities, approving

additional federal funding, and identifying eight additional

tasks for Site cleanup. Those future measures included creating

and installing an expanded 40-acre cap, hydraulically cleaning

the sewers, and installing clean soil and vegetation.

In 1994, Occidental Chemical Corporation (“Occidental”)

agreed to a settlement of claims with the State of New York.

Pursuant to a consent order, Occidental became responsible for

the continued operation and maintenance of the Love Canal

Treatment Facility, the cap, well monitoring, and groundwater

sampling and analysis. Occidental assumed that responsibility in

April 1995. Until July 1, 1998, operation and maintenance under

the consent order was carried out by an Occidental affiliate,

Defendant Miller Springs Remediation Management. Since July 1,

1998, Occidental’s responsibilities have been carried out by one

of its subsidiaries, Defendant Glenn Springs Holdings, Inc.

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Glenn Springs has contracted with Defendant GHD Services, Inc.

(“GHD”) to perform daily operations.

Defendants submit that the EPA issued its Preliminary Close-

Out Report for the Remedy in September 1999, and a Final Close-

Out Report in March 2004. The report reflects the EPA’s finding

that construction of the Remedy was complete, that it was

implemented properly and was protective of human health and the

environment. ECF No. 75 at 6. The only remaining actions to be

taken consisted of monitoring, maintenance, and ongoing

compliance. Id. The EPA has continued to conduct Five-Year

Reviews, commencing in 2003, the latest of which was completed in

2019. That most recent Five-Year Review concluded that the

Remedy remained effective and was working properly.

In January 2011, the Niagara Falls Water Board (“NFWB”) was

performing sewer repair work in the area of 96th Street and

Colvin Boulevard when a contractor, Defendant Scott Lawn Yard,

found contamination. It was determined that the contamination

came from the Love Canal site. Glenn Springs and GHD, with

oversight by state agencies, performed remediation of the Colvin

Boulevard site. Investigation of the site determined that the

likely source of contamination was an isolated historical source,

and not the result of a failure of the Love Canal containment

Remedy.

Plaintiffs claim that regardless of whether that finding is

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correct, the Colvin Boulevard discovery means that Defendants’

original cleanup of the storm and sewer systems was negligent.

They also allege that the Niagara Falls sewer system connects to

their properties, thus providing a path for dangerous

contaminants. “On information and belief, these and other

hazardous substances originated at the Love Canal Landfill site

and migrated to Plaintiffs’ properties through the storm and

sewer systems due to the negligent, careless and/or reckless

conduct of the Defendants.” ECF No. 68 at 16, ¶ 85.

The First Amended Complaint (“FAC”) sets forth a list of

contaminants Plaintiffs believe are present at their properties.

Testing has reportedly revealed that some of the contaminants

exceed state and federal health safety standards. Plaintiffs

also detail the known health effects of those contaminants. As

to specific experiences, Plaintiff Dolly Salerno claims that she

has suffered from migraine headaches, dizzy spells, arrhythmia,

and anxiety. Plaintiff Diana Amantia was compelled to move from

her home, and in March 2017 her husband died of a brain tumor.

Mrs. Amantia believes that her husband’s illness and death were

caused, in whole or in part, by exposure to Love Canal

contaminants. Both Mrs. Salerno and Mrs. Amantia claim that

their properties lost value as result of contamination.

Plaintiffs assert that others in the putative class have been

exposed and suffered similar harm.

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The FAC brings four state law causes of action: negligence,

strict liability, nuisance, and trespass. For relief, Plaintiffs

seek monetary damages and the establishment of a medical

monitoring fund, as well as punitive damages. Defendants are

various governmental organizations and private companies who were

involved in the remediation of Love Canal and/or the Colvin

Boulevard cleanup. Defendants previously moved to dismiss on the

basis of federal preemption and failure to state plausible claims

for relief, and the Court granted the motion. The Court also

granted leave to amend. Plaintiffs timely filed their FAC, and

Defendants again move to dismiss. As in their initial motion,

Defendants argue that Plaintiffs’ claims are implausible,

conclusory, and preempted by federal law. As noted above,

several individual Defendants have supplemented the joint motion

with their own arguments for dismissal, raising additional issues

including timeliness and lack of proper notice.

Discussion

I. Motion to Dismiss Standard

A Rule 12(b)(6) motion enables a court to consider

dismissing a complaint for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is plausible on its face “when the ple[d]

factual content allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

(citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant acted unlawfully.” Id.

The factual allegations pled “must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555.

II. Preemption

Defendants argue that the causes of action in the FAC, each

of which bring state common law claims, are barred by CERCLA

under the doctrine of conflict preemption. The conflict

preemption doctrine provides that “a state law may be preempted

to the extent that it actually conflicts with a valid federal

statute.” Ray v. Atl. Richfield Co., 43 U.S. 151 (1978). As an

example, the doctrine applies “where it is impossible for a

private party to comply with both state and federal law and where

under the circumstances of a particular case, the challenged

state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.”

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73

(2000) (internal brackets, citations, and quotation marks

omitted).

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“CERCLA is a comprehensive federal law governing the

remediation of sites contaminated with pollutants.” Consol.

Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 94 (2d

Cir. 2005). Under CERCLA, a defendant who has acted pursuant to

a consent decree is prohibited from commencing any remedial

action except for those expressly authorized in the consent

decree. See 42 U.S.C. § 9622(e)(6). As this Court discussed in

its prior Opinion and Order, the Second Circuit recently

addressed conflict preemption in the CERCLA context in Bartlett

v. Honeywell Int’l, Inc., 737 F. App’x 543 (2d Cir. 2018). In

that case, homeowners living near a waste disposal area

designated as a Superfund site brought a state court action

against Honeywell International (“Honeywell”), which had been

partially responsible for site clean up under CERCLA. Plaintiffs

asserted claims for negligence, nuisance and trespass, and

claimed that as a result of Honeywell’s actions toxic chemical

particles had migrated from the site and caused exposure to

people and property in the area.

Certain holdings and conclusions in the Bartlett decision

are relevant to this case. The Second Circuit noted that once

the DEC and the EPA reviewed and approved the remedial activities

undertaken by Honeywell, those activities “became part of the

binding consent decree” and the plaintiffs’ filings were

preempted as impermissible attacks on the government-mandated

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remedy itself. 737 F. App’x at 550. The court also found that

“CERCLA preempts the residents’ attempts to impose state tort law

liability on [the defendant] for not going above and beyond a

testing regime which the EPA itself described as ‘extensive.’”

Id. at 551. Both the district court and the Second Circuit

distinguished between allegations that “amount to nothing more

than a belated challenge to the adequacy of the

[government-mandated remedy] itself” and allegations that

Defendants failed “to comply with or properly implement the

[government-mandated remedy].” Id. at 549.

Here, Plaintiffs submit that the relief they are seeking

would not impair either compliance or implementation of the

Remedy. Defendants respond that the EPA’s latest Five-Year

Review found not only compliance with the mandated remediation,

but also that the remediation had been successful.1 Those

findings included remediation of the Colvin Boulevard site, and

Plaintiffs’ common law claims run counter the EPA’s conclusions.

Citing Bartlett, Defendants argue that the EPA approval has

become part of the binding consent decree, and that Plaintiffs’

1 The Court previously granted Defendants’ motion to

supplement the record to include the EPA’s Five-Year Reviews.

Because those Reviews were cited in the Complaint, their

admission into the record did not require converting the pending

motion to dismiss to a motion for summary judgment. The FAC

deleted specific references to EPA materials, yet the substance

of the FAC as compared to the initial Complaint makes clear that

those materials were a substantial source of information upon

which Plaintiffs’ factual allegations are based.

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claims therefore constitute an impermissible attack on the

federally-mandated Remedy.

In its prior Opinion and Order, the Court found that

allegations attacking the Remedy are “explicitly forbidden under

CERCLA.” ECF No. 65 at 15. The Court also concluded that

Plaintiffs’ initial Complaint failed to make “any specific

allegations that Defendants were shirking their responsibilities

under the Remedy.” Id. at 15, 16. The FAC claims that toxic

chemical migrated to Plaintiffs’ properties from Love Canal

through the storm water and sewer systems, thus suggesting that

either that the Remedy itself was inadequate or that

implementation of the Remedy was flawed. A consistent series of

EPA approvals suggests that such claims are implausible.

Plaintiffs rely heavily upon CERCLA’s savings clause, which

states:

Nothing in this chapter shall affect or modify in any

way the obligations or liabilities of any person under

other Federal or State law, including common law, with

respect to releases of hazardous substances or other

pollutants or contaminants. The provisions of this

chapter shall not be considered, interpreted, or

construed in any way as reflecting a determination, in

part or whole, of policy regarding the inapplicability

of strict liability, or strict liability doctrines, to

activities relating to hazardous substances,

pollutants, or contaminants or other such activities.

42 U.S.C. § 9652(d). The purpose of the savings clause is to

make clear that CERCLA does not bar all state law claims related

to hazardous substances, and that such claims may be brought in

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state court. See Niagara Mohawk Power Corp. v. Chevron U.S.A.,

Inc., 596 F.3d 112, 138 (2d Cir. 2010) (recognizing that “CERCLA

does not expressly preempt applicable state law” and “is not such

a comprehensive scheme that it cannot be supplemented by state

law”); New York v. Ametek, Inc., 473 F. Supp. 2d 432, 433

(S.D.N.Y. 2007) (“It is clear from the language of the [savings

clauses] that CERCLA does not expressly preempt state law.”).

The clause is therefore invoked when there is a question of

complete preemption. See, e.g., Abbo-Bradley v. City of Niagara

Falls, No. 13-CV-487-JTC, 2013 WL 4505454, at *6 (W.D.N.Y. Aug.

22, 2013). The question in this case is not whether CERCLA

completely preempts state law, but whether Plaintiffs’ claims

generate a conflict with a federally-approved remedy. And it is

well established that preemption is available to defendants

notwithstanding the presence of a savings clause. See Geier v.

American Honda Motor Co., 529 U.S. 861, 869-71 (2000).

The claims in this case fall into three general categories:

(1) negligent disposal of chemicals at Love Canal in the 1940s

and 1950s; (2) negligent remediation at the Love Canal Site

between the 1970s and the 1990s, as well as ongoing maintenance

and regular inspections by the EPA; and (3) the discovery of

chemicals and subsequent remediation during a sewer repair

project at Colvin Boulevard in January 2011. With respect to the

first two categories, any state law claims related to either the

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process of disposal and/or remediation at Love Canal were settled

by means of a consent order, approved by the federal government,

and are preempted. See New Mexico v. Gen. Electric Co., 335 F.

Supp. 2d 1185, 1226 (D.N.M. 2004) (where plaintiffs seek “to

recover additional damages from parties complying with an EPA

order on the theory that the EPA’s chosen remedy is somehow

inadequate, a collision . . . between state tort damages remedies

and the CERCLA statutory and regulatory scheme appears

inevitable”); Coastline Terminals of Conn., Inc. v. USX Corp.,

156 F. Supp. 2d 203, 208–09 (D. Conn. 2001) (plaintiff’s claims

pursuant to state statutory and common law “disrupt[ ] CERCLA’s

settlement incentive scheme by providing a potential avenue for

recovery against a potentially responsible party that has settled

a CERCLA action” and are preempted). By questioning the actions

related to the initial disposal and remediation, Plaintiffs are

challenging conduct that occurred pursuant to CERCLA and the

consent decree. Such an attack on the decree itself is

preempted. See Bartlett, 737 F. App’x at 550.

The third category, relating to the Colvin Boulevard site,

presents a closer call. The FAC alleges negligent acts in the

course of remediating the site. Although not part of the initial

Love Canal remediation and consent order, the 2011 work was

nonetheless performed with state oversight and reviewed by the

EPA, which found that the repair was effective and that there was

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no future potential for contamination. ECF No. 75-15, at 21-22.

As discussed in Bartlett, it would be improper to ask Defendants

to “go above and beyond” those measures already overseen,

certified and approved by expert agencies. 737 F. App’x at 551;

cf. New Mexico, 467 F.3d at 1249–50 (“Any relief provided the

State would substitute a federal court’s judgment for the

authorized judgment of . . . [the expert government agencies]

that the cleanup is not only comprehensive but flexible and

dynamic, readily adjusting as new data is received.”).

Plaintiffs emphasize that they are seeking monetary damages,

and that no element of the Love Canal remedy ever provided them

such relief. At least one court in this Circuit has held that a

plaintiff may not void preemption by merely requesting monetary

damages. See Town of Halfmoon v. Gen. Elec. Co., 105 F. Supp. 3d

202, 218 (N.D.N.Y. 2015) (“Plaintiffs’ assertion that they simply

seek monetary damages, and do not directly challenge the dredging

project, is similarly without merit.”); see also New Mexico, 467

F.3d at 1249–50 (“The State’s argument that it is not seeking to

alter or expand the EPA’s response plan but rather only to

acquire money damages falls on deaf ears. . . . Accepting the

State’s argument might place GE and ACF in the unenviable

position of being held liable for monetary damages because they

are complying with an EPA-ordered remedy which GE and ACF have no

power to alter without prior EPA approval.”).

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The Seventh Circuit has noted that “[t]he precise contours

of CERCLA preemption over state environmental cleanup actions or

municipal ordinances that affect federal removal or remedial

actions are not easy to discern.” Village of DePue v. Exxon

Mobil Corp., 537 F.3d 775, 786 (7th Cir. 2008). The FAC

summarizes Plaintiffs’ claims as including “wrongful dumping of

toxic substances, the negligent, reckless, and/or ineffective

remediation of such contamination, the negligence and/or reckless

performance of work in, around, and adjacent to the, sewers in

proximity to Love Canal and repeated failures to alert the public

at large . . . .” The FAC also makes clear that federal and

state regulators have been intimately involved with ongoing

remediation of the toxic chemicals discovered decades ago at Love

Canal. Defendants were bound to take action within the confines

of the government-prescribed Remedy. As Plaintiffs’ claims

conflict with federal mandates and/or federally-approved work,

their allegations remain preempted.

II. Plausibility

In addition to CERCLA preemption, the Court dismissed the

initial Complaint for failure to state plausible claims for

relief. Specifically, the Court characterized the Complaint as

“completely speculative” and based upon “generalized statements.”

ECF No. 65 at 9-11. The FAC offers additional specifics, but

still leaves substantial gaps on key questions of migration,

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exposure, and causation.

The migration allegations are based upon the “information

and belief” that chemicals have traveled through storm and sewer

systems. There are no allegations, however, about which

direction those systems flowed such that chemicals from Love

Canal could plausibly reach Plaintiffs’ homes.2 Allegations of

exposure are similarly vague, as the FAC contends that each named

Plaintiff was exposed the entire time she lived at her home.

Despite the EPA’s conclusion that the Remedy was implemented

successfully and was protective of human health, Plaintiffs

submit that within just a few years of remediation they began

suffering exposure to toxic chemicals at dangerous levels. Both

exposure and causation seem to be supported primarily by

guesswork, as Plaintiffs contend that since chemicals discovered

at their properties were also among the multitude of chemicals

founds at Love Canal, Love Canal must be the source. As the

Supreme Court has made clear, a complaint must bring claims that

rise “above the speculative level.” Twombly, 550 U.S. at 555.

The FAC does not pass that test.

Furthermore, Plaintiff Diana Amantia does not allege any

personal injuries. Plaintiff Dolly Salerno claims that

arrhythmia and heart rhythm changes are caused by barium and

2 At a prior hearing, the Court questioned whether

Plaintiffs were alleging that chemicals “traveled backwards to

[their] residences.” ECF No. 66 at 52:11-17.

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phenol, though neither chemical is alleged to have been detected

at her property. ECF No. 68 at ¶ 86, 107. Her allegations of

anxiety and panic attacks are not linked to any specific

chemicals. Claims of headaches and dizzy spells are connected

only generally to “toxic exposure.” Id., ¶ 113. Accordingly,

claims of harm are similarly speculative.

The Court has given Plaintiffs the opportunity to amend

their claims to meet the plausibility standard. The FAC provides

new explanations for their theories, such as the allegation that

chemicals flowed through the storm water and sewer systems, but

still reflect only a possibility that their problems stem from

Love Canal. Details of test results, accepted as true,

demonstrate that there are indeed toxic chemicals at Plaintiffs’

properties. Speculation about the source of those chemicals and

their link to a range of health issues is insufficient.

Accordingly, the Court must again dismiss the Plaintiffs’

allegations for failure to state a plausible claim.

III. Individual Defendants

Various individual Defendants have moved to dismiss,

incorporating the arguments in the joint motion and adding some

of their own reasons for dismissal.

A. Roy’s Plumbing

Roy’s Plumbing, Inc. (“Roy’s”) was allegedly retained by

Glenn Springs to undertake the sewer cleaning and replacement

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aspect of the remedial activity at the Colvin Boulevard site.

The FAC claims that Roy’s is liable for using a “jetting” device

to clean the roadway and sewers following the Colvin Boulevard

discovery, thereby disbursing toxins into the environment and

onto Plaintiffs’ properties. The FAC further claims that Roy’s

failed to inform homeowners that toxins had been disbursed, and

instead represented that their homes were safe.

Roy’s contends that the named Plaintiffs have not

sufficiently alleged their properties were near the area of the

alleged “jetting.” “The harm alleged in the [FAC] appears to be

based solely on unspecified proximity of Roy’s work to the sewer

release.” ECF No. 83 at 6. Nor are there any specific

allegations linking the Roy’s cleaning of the site to Plaintiffs’

alleged injuries.

When compared to the original Complaint, there are no

substantive changes to any of the allegations against Roy’s. ECF

No. 75-18 at 49-50. The prior Complaint was dismissed for

failure to state a claim. Without any substantive amendments,

the current claims must also be dismissed.

B. GHD Services, Inc.

GHD, formerly known as Conestoga-Rovers & Associates, Inc.,

incorporates the joint motion and offers its own filing as well.

The FAC alleges that Glenn Springs retained GHD as an

environmental consultant in the investigation and remediation of

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the Colvin Boulevard release. Plaintiffs further claim that GHD

failed to perform its duties properly, including: failure to

adequately monitor air, soil, and surface water around the Love

Canal Site; failure to advise government agencies and local

resident about exposure to toxic chemicals; and unlawfully

releasing toxic chemicals. Those same allegations were present

in the original Complaint.

GHD argues that the Court should dismiss the FAC for the

same reasons it dismissed the initial Complaint. Although the

allegations against GHD are not substantially different in the

FAC, Plaintiffs have added details about the conditions and

activities around Love Canal, activities at the Colvin Boulevard

site, and Plaintiffs’ injuries and exposures. As set forth

above, however, those additional facts fail to raise Plaintiffs’

claims above the speculative level. Accordingly, their claims

against GHD are dismissed.

C. Niagara Falls Water Board

NFWB, as a municipal entity, argues that Plaintiffs failed

to serve notices of claim in accordance with New York General

Municipal Law § 50-e. That provision requires a notice of claim

to be served within 90 days after a claim arises. The law also

differentiates between a notice of claim mailed from within the

State of New York and a notice mailed from outside New York.

While claims mailed from within New York are deemed served upon

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deposit at the post office, claims sent from outside New York are

deemed served upon receipt of the notice. See N.Y. Gen. Mun. Law

§ 50-e(3)(c). NFWB alleges that, in this case, Plaintiffs sent

their notices from outside New York and the notices were never

received. Plaintiffs have conceded that the notices of claim

were never delivered. ECF No. 77-3, ¶ 10.

Plaintiffs counter that NFWB was on notice of their claims

by virtue of its association with the City of Niagara Falls.

NFWB contends that the City is a separate legal entity under New

York law. See Wilson v. City of Buffalo, 298 A.D. 994, 996 (4th

Dep’t 2002). Moreover, while actual knowledge may be considered

when a court is presented with a petition for leave to serve a

late claim, see N.Y. Gen. Mun. Law § 50-e(5), no such petition

was filed here.

NFWB also contends that after a notice of claim is served, a

complaint or moving papers must allege that at least 30 days have

elapsed after service. See N.Y. Pub. Auth. Law § 1230-t(1).

Accordingly, a claimant must wait 30 days after serving a notice

of claim before commencing an action. The FAC in this case

contains no such allegation.

NFWB’s final argument is that it did not exist until 2002,

long after the alleged dumping at Love Canal. Most of the

remediation efforts were completed prior to that date.

Consequently, NFWB cannot be held liable for any conduct alleged

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prior to 2002. This latest point is valid, and NFWB’s procedural

arguments are also persuasive. The claims against NFWB are

therefore dismissed.

D. City of Niagara Falls

Like NFWB, the City of Niagara Falls is a party to the joint

motion to dismiss and has submitted an independent argument

related to timeliness. The City argues that under New York law,

a lawsuit alleging tortious conduct by a city must be commenced

within one year and ninety days after the happening of the event

upon with the claim is based. See N.Y. Gen. Mun. Law § 50-I.

Consequently, allegations related to dumping of toxic chemicals

in the 1950s are time barred. The City also notes that

maintenance and operation of water and sewer facilities in the

Love Canal area was transferred to the NFWB in 2003.

Plaintiffs counter that the New York limitations period is

preempted by CERCLA, and that under federal law the limitations

period began on the date they received the sampling data that

showed contamination. See Freier v. Westinghouse Elec. Corp.,

303 F.3d 176 (2d Cir. 2002). Plaintiffs report that they

received such data in November and December 2016. They filed

their notice of claim within 90 days thereafter. They also

contend that the date of accrual, if disputed, is an issue of

fact. The Court need not address this issue, since for the

reasons discussed above, Plaintiffs’ claims are preempted and

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speculative. The claims against the City are therefore

dismissed.

Conclusion

For the reasons set forth above, Defendants’ motions to

dismiss (ECF Nos. 75, 76, 77, 78, and 79) are granted.

DATED at Burlington, Vermont, this 30th day of September,

2020.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge

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