Petition for Writ of Certiorari — Robert Bartlett, et al., Petitioners v. Honeywell International, Inc.
Supreme Court briefAug 23, 2018
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No. ____________
d
IN THE
Supreme Court of the United States
ROBERT and COLLEEN BARTLETT, ET AL.,
Petitioners,
CAMILLUS CLEAN AIR COALITION,
Camillus Clean Air Coalition,
—v.—
HONEYWELL INTERNATIONAL, INC.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
KENNETH F. MCCALLION, ESQ.
Counsel of Record
KRISTIAN K. LARSEN, ESQ.
MCCALLION & ASSOCIATES LLP
100 Park Avenue, 16th Floor
New York, New York 10017
(646) 366-0884
kfm@mccallionlaw.com
Attorneys for Petitioners
August 23, 2018
i
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of
certiorari to review the Summary Order of the
United States Court of Appeals for the Second
Circuit.
QUESTIONS PRESENTED
1) Did the Circuit Court’s Summary Order,
which
held
that
CERCLA
preempts
Petitioners’ common law tort claims, directly
contradict this Court’s decision in CTS Corp.
v. Waldburger, 134 S. Ct. 2175 (2014), based
on a plain reading of CERCLA’s statutory
language and Congressional intent.
2) Did the Circuit Court’s err by applying the
incorrect legal standard in deciding that
CERCLA preempts Petitioners’ common law
tort claims?
ii
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED . . . . . . . . . . . . . . . .
i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . .
iv
SUMMARY OF THE ARGUMENT . . . . . . . . .
1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . .
3
STATEMENT OF JURISDICTION . . . . . . . . .
3
CONSTITUTIONAL/STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . .
3
STATEMENT OF THE CASE . . . . . . . . . . . . . .
9
A. Petitioners’ Common Law Tort
Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
B. The District Court’s 2017 Decision
And Order . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
C. Petitioners’ Appeal To The Second
Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
D. The Appellate Court’s Summary
Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
REASONS FOR GRANTING THE
PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
iii
APPENDIX :
SUMMARY ORDER, 2ND CIR. CT. OF
APPEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1a
MEMORANDUM-DECISION AND ORDER,
N.D.N.Y. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19a
iv
TABLE OF AUTHORITIES
PAGE(S)
Cases
Abbo-Bradley v. City of Niagara Falls,
2013 U.S. Dist. LEXIS 1194134, *20-21
(W.D.N.Y. Aug 21, 2013) . . . . . . . . . . . . . . . . . . . . 22
Bell v. Cheswick Generating Station,
734 F.3d 188 (3d Cir. 2013) . . . . . . . . . . . . . . . . . 23
CTS Corp. v. Waldburger,
134 S. Ct. 2175 (2014) . . . . . . . . . . . . . . . . . passim
Hillman v. Maretta,
___U.S.___, 133 S. Ct. 1943 (2013) . . . . . . . . . . 19
Little v. Louisville Gas & Electric,
805 F.3d 695 (6th Cir. 2015) . . . . . . . . . . . . . . . . 23
Malone v. White Motor Corp.,
435 U.S. 497 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015) . . . . . . . . . . . . . . . . 23
Nader v. Allegheny Airlines, Inc.,
426 U.S. 290 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 20
PMC, Inc. v. Sherwin-Williams Co.,
151 F.3d 610 (7th Cir. 1998) . . . . . . . . . . . . . . . . 22
San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236 (1959) . . . . . . . . . . . . . . . . . . . . . . . . 19
Silkwood v. Kerr- McGee Corp.,
464 U.S. 238 (1984) . . . . . . . . . . . . . 17, 20, 21, 22
State of New Mexico v. Gen. Elec. Co.,
467 F.3d 1223 (10th Cir. 2006). . . . . . . . . . . . . . 22
v
Village of Depue, Illinois v. Exxon Mobil Corp.,
537 F.3d 775 (7th Cir. 2008) . . . . . . . . . . . . . . . . 22
Wos v. E. M. A.,
568 U.S. ___ (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes:
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
42 U.S.C. § 9619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19
42 U.S.C. § 9651(e)(1) . . . . . . . . . . . . . . . . . . 16, 17, 19
42 U.S.C. § 9651(e)(3)(f) . . . . . . . . . . . . . . . . . . . . . . . 16
42 U.S.C. § 9652(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
42 U.S.C. § 9658(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERCLA § 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERCLA § 122(e)(6) . . . . . . . . . . . . . . . . . . . . . . . 10, 12
CERCLA § 301(e)(1) . . . . . . . . . . . . . . . . . . . . . . . 17, 19
CERCLA § 302(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERCLA § 309(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERCLA § 9658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16
1
SUMMARY OF THE ARGUMENT
By holding that Petitioners’ common law tort
claims are preempted by CERCLA, the Second
Circuit contradicted the Court’s opinion in CTS
Corp. v. Waldburger, 134 S. Ct. 2175, 573 U.S. __
(2014), which held that CERCLA Section 9658
does not preempt State statutes of limitation for
common law toxic claims since CERCLA “leaves
untouched States’ judgments about causes of
action, the scope of liability, the duration of the
period provided by statutes of limitation,
burdens of proof, and other important rules
governing civil actions,” based on a plain reading
of CERCLA’s statutory language and Congressional intent. 134 S. Ct. 21.
Accordingly, it is respectfully asserted that
CERCLA does not pre-empt Petitioners’ State
common law tort claims for the same reasons it
does not pre-empt the New York State statute of
limitations applicable to their claims.
Instead
of
recognizing
Waldburger
as
controlling precedent, the Second Circuit
impermissibly immunized Respondent Honeywell
from liability for negligently exposing Petitioners
to hazardous concentrations of toxic vapor as a
result of Honeywell dredging massive amounts of
toxic waste from the bottom of Onondaga Lake,
then transporting it under pressure to a
treatment and disposal site in the middle of
Petitioners’ community, where it “off-gassed” and
caused extensive personal injury and property
damages to Petitioners.
Troublingly, the Second Circuit’s decision
signals to all potentially responsible parties
2
(“PRPs”) that as long as they purport to comply
with authorized remediation plans promulgated
by the United States Environmental Protection
Agency (the “EPA”) and/or the New York
Department of Environmental Control (the “DEC”)
or with consent decrees supervised by the district
court, they will suffer no liability for any
personal injuries they negligently cause in the
process of carrying out the remediation. Simply
put, under the Second Circuit’s holding, a party
may no longer be held liable for its otherwise
negligent conduct as long such conduct occurs
during the course of an EPA or DEC approved
remediation plan or consent decree. 134 S. Ct. 2175.
Moreover, by erroneously deciding that
CERCLA preempted Petitioners’ common law
tort rights, the Court violated federalist norms
by encroaching on an area of common law tort
law traditionally occupied by the states and
reserved to the people, thus denying Petitioners
any remedy whatsoever for the damages
Honeywell caused them.
Finally, the Circuit Court’s preemption
analysis
ignored
or
misinterpreted
legal
precedent from other Circuit Courts of Appeals
that either properly hold that CERCLA does not
preempt common-law toxic tort claims or that
apply to entirely different and duplicative state
natural damages claims. Thus, clarification is
needed to avoid a split among the Circuits to the
extent they do not recognize Waldburger as
controlling precedent.
3
OPINIONS BELOW
The U.S. Court of Appeals for the Second Circuit’s
May 25, 2018 Summary Order is not published and is
reproduced at App. 1a. The U.S. District Court for
the Northern District of New York’s May 19, 2017
Decision and Order is reported at 260 F. Supp. 3d
231 (N.D.N.Y 2017) and is reproduced at App. 19a.
STATEMENT OF JURISDICTION
The U.S. Court of Appeals for the Second
Circuit issued its Summary Order denying
Petitioner’s appeal on May 25, 2018.This Court
has Jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL/STATUTORY
PROVISIONS INVOLVED
COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND
LIABILITY ACT OF 1980 (SUPERFUND)
TITLE I—HAZARDOUS SUBSTANCES
RELEASES, LIABILITY, COMPENSATION
Sec. 119. Response action contractors.
(a) Liability Of Response Action Contractors.
(1)
Response Action Contractors.
A person who is a response action
contractor with respect to any release
or threatened release of a hazardous
substance or pollutant or contaminant from
a vessel or facility shall not be liable under
this title or under any other Federal law to
any person for injuries, costs, damages,
expenses, or other liability (including but
4
not limited to claims for indemnification or
contri-bution and claims by third parties
for death, personal injury, illness or loss of
or damage to property or economic loss)
which results from such release or
threatened release.
(2)
Negligence, Etc.
Paragraph (1) shall not apply in the case
of a release that is caused by conduct of the
response action contractor which is
negligent, grossly negligent, or which
constitutes intentional misconduct.
(3)
Effect on warranties; employer
liability.
Nothing in this subsection shall affect
the liability of any person under any
warranty under Federal, State, or common
law. Nothing in this subsection shall affect
the liability of an employer who is a
response action contractor to any employee
of such employer under any provision of
law, including any provision of any law
relating to worker’s compensation.
(4)
Governmental employees.
A state employee or an employee of a
political subdivision who provides services
relating to response action while acting
within the scope of his authority as a
governmental employee shall have the
same exemption from liability (subject to
the other provisions of this section) as is
provided to the response action contractor
under this section.
5
(b) savings provisions.
(1)
Liability of other persons.—The
defense provided by section 107(b)(3) shall
not be available to any potentially
responsible party with respect to any costs
or damages caused by any act or omission
of a response action contractor. Except as
provided in subsection (a)(4) and the
preceding sentence, nothing in this section
shall affect the liability under this Act or
under any other Federal or State law of
any person, other than a response action
contractor.
(2)
Burden of plaintiff. Nothing in
this section shall affect the plaintiff’s
burden of establishing liability under this
title.
TITLE III — MISCELLANEOUS
PROVISIONS
Sec. 301. Reports and studies.
(e) Adequacy of existing common law and
statutory remedies.
(1)
In
order
to
determine
the
adequacy of existing common law and
statutory remedies in providing legal
redress for harm to man and the
environment caused by the release of
hazardous
substances
into
the
environment, there shall be submitted to
the Congress a study within twelve months
of enactment of this Act.
(2)
This study shall be conducted
with the assistance of the American Bar
6
Association, the American Law Institute,
the Association of American Trial Lawyers,
and the National Association of State
Attorneys General with the President of
each entity selecting three members from
each organization to conduct the study.
The study chairman and one reporter shall
be elected from among the twelve members
of the study group.
(3)
As part of their review of the
adequacy of existing common law and
statutory remedies, the study group shall
evaluate the following:
(A)
the nature, adequacy, and
availability of existing remedies under
present law in compensating for harm to
man from the release of hazardous
substances;
(B)
the nature of barriers to
recovery (particularly with respect to
burdens of going forward and of proof and
relevancy) and the role such barriers play
in the legal system;
(C)
the scope of the evidentiary
burdens placed on the plaintiff in proving
harm from the release of hazardous
substances, particularly in light of the
scientific uncertainty over causation with
respect to—
(i) carcinogens,
teratogens, and
mutagens,
and
(ii) the human health effects of
exposure to low doses of hazardous
substances over long periods of time;
7
(D) the nature and adequacy
existing remedies under present law
providing compensation for damages
natural resources from the release
hazardous substances;
of
in
to
of
(E)
the scope of liability under
existing law and the consequences,
particularly with respect to obtaining
insurance, of any changes in such liability;
(F)
barriers to recovery posed by
existing statutes of limitations.
(4)
The report shall be submitted to
the Congress with appropriate recommendations. Such recommendations shall
explicitly address
(A)
the need for revisions
existing statutory or common law, and
in
(B)
whether such revisions should
take the form of Federal statutes or the
development of a model code which is
recommended for adoption by the States.
(5)
The Fund shall pay administrative expenses incurred for the study. No
expenses shall be available to pay
compensation, except expenses on a per
diem basis for the one reporter, but in no
case shall the total expenses of the study
exceed $300,000.
Sec. 302. Effective dates; Savings
provisions.
(d) Nothing in this Act shall affect or
modify in any way the obligations or
liabilities of any person under other
8
Federal or State law, including common
law, with respect to releases of hazardous
substances
or
other
pollutants
or
contaminants. The provisions of this Act
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.
Sec. 309. Actions Under State Law For
Damages From Exposure To
Hazardous Substances.
(a) State statutes of limitations
hazardous substance cases.
for
(1) Exception To State Statutes.
In the case of any action brought under
State law for personal injury, or property
damages, which are caused or contributed
to by exposure to any hazardous substance,
or pollutant or contaminant, released into
the environment from a facility, if the
applicable limitations period for such
action (as specified in the State statute of
limitations or under common law) provides
a commence-ment date which is earlier
than the federally required commencement
date, such period shall commence at the
federally required commencement date in
lieu of the date specified in such State
statute.
(2) State law generally applicable.
9
Except as provided in paragraph (1), the
statute of limitations established under
State law shall apply in all actions brought
under State law for personal injury, or
property damages, which are caused or
contributed to by exposure to any
hazardous substance, or pollutant or
contaminant,
released
into
the
environment from a facility.
STATEMENT OF THE CASE
A. Petitioners’ Common Law Tort Claims
Petitioners are residents of Camillus, New
York, who live near a waste disposal area known
as “Wastebed 13” that is owned and operated by
Respondent,
Honeywell
International,
Inc.
(“Honeywell”).
Between
the
summers
of
2012
and
2014, Honeywell dredged over 2 million cubic
feet of hazardous toxic slurry/sediment from the
bottom of Lake Onondaga which it then pumped,
upgrade, via four pump stations through a 3.9mile pipeline to Wastebed 13 and then under
pressure into hundreds of porous geotextile tubes
(“geotubes”) designed to remove and treat the
toxic water, and retain the residual “dewatered”
sediment until it was sufficiently dry to cover
and cap in place pursuant to the Onondaga Lake
“Superfund” remediation plan authorized under a
2006 Consent Decree between the New York
State Department of Environmental Control
(“DEC”) and Honeywell. App. 22a-23a, 43a-44a.
From the beginning, Petitioners experienced
severe “mothball-like” chemical odors severe
10
headaches, nausea sinus and nasal burning and
irritation, nosebleeds, metallic-like taste in the
mouth, tingling sensations, severely dry and
itchy skin, persistent coughing, severe asthma
attacks and other respiratory symptoms typically
associated with a chemical exposure, to
extremely hazardous toxic chemicals, including
the huge amounts of Mercury, BTEX, Benzene,
Napthalene and PCBs, in sediment that was
dredged from a lake bottom site a safe four miles
away to breathing distance of Petitioners’ homes
and properties. App. 25a, 44a-45a
Petitioners alleged three common law tort
causes of action: (1) negligence—that Honeywell
failed to employ reasonable care under the
circumstances in implementing and in choosing
the various methods for remediation at the Site,
see (2) that Honeywell and (3) trespass—that
Honeywell actions “caused toxic chemical
particulates, both visible and invisible, to be
released into the air in the form of vapor and
dust which then landed on Plaintiffs’ real
property and persons.” App. 42a-49a.
On May 12, 2015 Honeywell moved to dismiss
the Amended Complaint for (1) lack of standing,
(2) federal preemption under CERCLA §122(e)(6), (3)
failure to join the DEC as an indispensable
party, and (4) failure to allege plausible statelaw claims. App. 25a.
B. The District Court’s 2017 Decision
And Order
Two years later, in its May 19, 2017
Memorandum-Decision and Order (the “Decision”),
the District Court recognized that “[t]he
amended complaint first outlines each of the
11
individual Plaintiffs’ health and safety concerns,
and then
explains
in
detail
the
alleged
deficiencies in Defendant’s implementation of the
measures agreed upon in the consent decree to
manage the site (a/k/a “Wastebed 13”)[.]” App.
43a (emphasis added).
The District Court also acknowledged that
“Plaintiffs allege that Defendant was negligent in
performing the remediation in the following ways:
(1) Defendant should have known that geotubes
were not closed systems, see id. at ¶ 244; (2)
Defendant should have known that the
hazardous chemicals did not remain in the
sediment but instead were emitted onto
Plaintiffs’ properties from the air pathway and
through ‘aerosolized spray/vapor,’ see id. at ¶¶
245, 246; and (3) Defendant failed to discover
that geotubes were not capable of containing the
emissions of the hazardous chemicals and thus
failed to implement mitigative measures.” see id.
at ¶ 247. App. 48a (emphasis added); see also
District Court’s lengthy and detailed synopsis of
Petitioners Amended Complaint at App. 42a-50a.
Although the logical conclusion of District
Court’s findings was that Petitioners had
plausibly stated their common law claims of
negligence, the District Court inexplicably held
that “nothing in Plaintiffs’ Amended Complaint
plausibly alleges that the selected remedy was
not ‘performed properly,’ and that Plaintiffs []
conclusory
allegations
that
Defendant
negligently performed its remediation duties, all
of the factual allegations that form the basis for
Plaintiffs’ claims relate to actions that were
clearly
contemplated
in
the
Consent
Decree.[footnote omitted].” App. 49a.
12
The District Court further held that instead of
alleging negligent implementation of the measures
agreed upon in the consent decree, Petitioners
were actually challenging the adequacy of the
consent decree itself, and “attempting to hold
Defendant liable for activities consistent with
the Consent Decree on the theory that Defendant
should have conducted additional remediation
that would have violated CERCLA §122(e)(6)[,]”
and accordingly, their claims “conflict with
CERCLA
and
the
Consent
Decree
and
are therefore preempted.” App. 50a. (emphasis
added).
C. Petitioners’ Appeal To The Second Circuit
Petitioners appealed the Decision to the
Second Circuit arguing, inter alia, that the
District Court erred by (a) circumventing the
plain meaning and Congressional intent of
CERCLA and its numerous provisions that
explicitly recognize the right to pursue commonlaw tort claims; (b) misapplying prevailing
relevant case law in a fundamentally flawed
“conflict preemption” analysis of Plaintiff’s
claims; and (c) mischaracterizing the essence of
Petitioner’s Amended Complaint as challenging
the adequacy of the EPA- and DEC-approved
remediation plan was inadequate and therefore
“conflict preempted.” App. 3a, 10a.
D. The Appellate Court’s Summary Order
In its May 25, 2018 Summary Order, the
Second Circuit completely ignored the issue of
whether the District Court subverted the plain
meaning and Congressional intent of CERCLA’s
numerous provisions that unequivocally disclaim
13
preemption and recognize Petitioners’ right to
pursue common-law tort claims.
Instead, the Second Circuit focused “[t]he
instant conflict analysis [. . .] on whether, under
the circumstances of this particular case, the
Amended Complaint’s alleged state law tort
violations conflict with a CERCLA remediation
plan enforced by a federal consent decree. That
is, whether it is impossible for Honeywell to
comply with both state tort law and CERCLA or
whether the residents’ state-law claims.” App. 12a.
Although it agreed with the District Court
“that CERCLA preempts the residents’ claims
because the residents’ merely challenge the
adequacy of the consent decree itself,” the Circuit
Court disposed of Petitioners’ claim that
Honeywell was negligent for failing to conduct a
“closed” or “virtually closed” geotube dewatering
process as promised, by mischaracterizing
Petitioners’ claim as an unrealistic, unreasonable
expectation of a “hermetically sealed” dewatering
system. App. 13a.
The Second Circuit also rejected Petitioners’
claim of “purported deficiencies in Honeywell’s
perimeter air monitoring system [the ‘PAM’],
such as the system’s inability to detect certain
emissions,” because Honeywell had “publicly
disseminated the specifications for the allegedly
insufficient [PAM], the DEC and EPA reviewed
and approved this system, and the system
became part of the binding consent decree, which
Honeywell was obligated to follow.” App. 14a.
Based solely on these conclusory factors, the
Second Circuit ruled out any possibility that the
PAM system was fatally defective and instead
14
concluded, with scant analysis, that the PAM
system claims were actually common law attacks
on the consent decree itself and not its negligent
implementation, and therefore preempted by
CERCLA. App. 13a-14a.
The Second Circuit also simply rejected as
implausible Petitioners’ claim that Honeywell
negligently failed to implement geotube covers it
was required to implement to mitigate emissions
after de-watering operations were shut down due
to the presence of hazardous concentration levels
at Wastebed 13. App. 14a-16a. The Second
Circuit used circular reasoning to conclude that,
because multiple state and federal authorities
and the federal district court had supervised
Honeywell and determined that it had complied
with its responsibilities, then it was simply not
plausible that Honeywell could have been
negligent as Petitioners alleged. App. 14a-16a.
Finally, the Second Circuit rejected, as conflict
preempted, Petitioners’ claims that Honeywell
negligently failed to conduct additional benchscale tests to predict emissions from the geotube
dewatering method instead of the lagoon
dewatering method, after concluding that
subjecting Honeywell to potential state tort
liability would pose an obstacle to the
accomplishment and execution of Congress’ full
purposes and objectives. App. 16a-17a.
REASONS FOR GRANTING THE PETITION
By holding that Petitioners’ common law tort
claims are preempted by CERCLA, the Second
Circuit directly contradicted the Court’s opinion
in CTS Corp. v. Waldburger, 134 S. Ct. 2175, 573
15
U.S. __, 189 L. Ed. 2d 62 (2014), and in the
process, impermissibly immunized Respondent
Honeywell from liability for negligently exposing
Petitioners to hazardous concentrations of toxic
vapor as a result of its treating and disposing
massive amounts of toxic waste that it had
dredged and transported from the bottom of
Onondaga Lake to the middle of Petitioners’
community.
Instead, the Second Circuit conducted a conflict
preemption analysis that completely ignored the
CERCLA provisions that unequivocally permit
Petitioners’ State common law tort claims and
that also clearly disclaim any Congressional
intent to preempt Petitioners’ common law tort
claims.
As the Court explained in Waldburger,
Congress enacted CERCLA in 1980 to
promote the timely cleanup of hazardous
waste sites”‘ and to ensure that the costs of
such cleanup efforts were borne by those
responsible for the contamination. The Act
provided a federal cause of action to
recover costs of cleanup from culpable
entities but not a federal cause of action for
personal injury or property damage
(internal
citations
omitted).
Instead,
CERCLA directed preparation of an expert
report to determine “the adequacy of
existing common law and statutory
remedies in providing legal redress for
harm to man and the environment caused
by the release of hazardous substances into
the environment,” including “barriers to
recovery posed by existing statutes of
16
limitations. 42 U.S.C. § 9651(e)(1),(3)(f).
The 1982 report resulting from that
statutory
directive
proposed
certain
changes to state tort law.
134 S. Ct. 2180, citing the Senate Committee on
Environment and Public Works, Superfund
Section 301(e) Study Group, Injuries and
Damages from Hazardous Wastes—Analysis and
Improvement of Legal Remedies, 97th Cong., 2d
Sess. (Comm. Print 1982) (hereinafter Study
Group Report or Report).
In examining the issue of whether CERCLA
preempts State statutes of limitations, the Court,
in Waldburger, rejected the Fourth Circuit
Court’s reasoning that the they should be
preempted because remedial statutes like
CERCLA be given liberal interpretation. Instead,
the Court explained that the courts should look
to CERCLA’s plain meaning and Congressional
intent which,
[i]s discerned primarily from the statutory
text. In any event, were the Court to adopt
a presumption to help resolve ambiguity,
substantial support also exists for the
proposition that the States’ coordinate role
in government counsels against reading
federal laws such as §9658 to restrict the
States’ sovereign capacity to regulate in
areas of traditional state concern.
***
[B]ecause the States are independent
sovereigns in our federal system,” the
Court assum[es] that the historic police
powers of the States were not to be
17
superseded by the Federal Act unless that
was the clear and manifest purpose of
Congress. The effect of that presumption is
to support, where plausible, “a narrow
interpretation” of an express pre emption
provision, ibid., especially when Congress
has legislated in a field traditionally
occupied by the States.
***
The presumption has greatest force when
Congress legislates in an area traditionally
governed by the States’ police powers. “In
our federal system, there is no question
that States possess the ‘traditional
authority to provide tort remedies to their
citizens’ as they see fit.”
134 S. Ct. 2186-2189, quoting, Wos v. E. M. A.,
568 U.S. ___, ___ (2013) (slip op., at 11) (in turn
quoting Silkwood v. Kerr-McGee Corp., 464 U. S.
238, 248 (1984)).
Thus, in Waldburger, the Court concluded that
because CERCLA “does not provide a complete
remedial framework [or] provide a general cause
of action for all harm caused by toxic
contaminants[, it] leaves untouched States’
judgments about causes of action, the scope of
liability, the duration of the period provided by
statutes of limitations, burdens of proof, rules of
evidence, and other important rules governing
civil actions.” 134 S. Ct. 2188.
Several other provisions in CERCLA that the
Court examined in Waldburger, §301(e)(1), 42
U.S.C. 9651 (e)(1), §309(a)(1), 42 U.S.C.A.
9658(a)(1),
further
militate
against
the
18
preemption by CERCLA of Petitioners’ state
common law tort claims.
For example, CERCLA’s “Savings Clause,”
§302(d), 42 U.S.C. 9652(d), also unequivocally
provides that:
[N]othing in this chapter shall affect or
modify in any way the obligation of any
person
under
Federal
or
State
law, including common law, with respect to
release of hazardous substances or other
pollutants or contaminants [and that] this
chapter
shall
not
be
considered,
interpreted, or construed in any way as
reflecting a determination, in part or in
whole, of policy regarding inapplicability of
strict liability, or strict liability doctrines,
to
activities
relating
to
hazardous
substances, pollutants, or contaminants or
other activities.
Id. (emphasis added).
Section 119 of CERCLA contemplates liability
for exactly the type of negligence Petitioners
allege against Honeywell and its contractors by
providing that a “person who is a response action
contractor with respect to any release or
threatened release of a hazardous substance or
pollutant or contaminant from a vessel or facility
shall not be liable under this title or under any
other Federal law to any person for injuries,
costs, damages, expenses, or other liability
(including but not limited to claims for
indemnification or contribution and claims by
third parties for death, personal injury, illness or
loss of or damage to property or economic loss)
which results from such release or threatened
19
release[,]” except “in the case of a release that is
caused by conduct of the response action
contractor which is negligent, grossly negligent,
or which constitutes intentional misconduct.” 42
U.S.C. § 9619 (emphasis added).
The Second Circuit’s conflict preemption
analysis clearly overlooked the fact that
“congressional intent is the ultimate touchstone
of preemption analysis.” See Malone v. White
Motor Corp., 435 U.S. 497 (1978). Here, the
plain reading of the numerous sections CERCLA
that
explicitly
demonstrate
Congress’
unequivocal intent to not preempt common-law
toxic tort claims. In fact, there is no better
indication of such congressional intent than the
Study
Group’s
mandate
under
CERCLA
§301(e)(1) to study the adequacy of existing
common
law
remedies
and
to
make
recommendations as to how to make improvements
to and not preempt those remedies; and especially
to not leave persons injured by or exposed to
toxic substances without any remedy, as the
district court and Second Circuit preemption
holdings have thus far rendered Petitioners here.
Nor did the Second Circuit even acknowledge
the
long-established
presumption
against
preemption premised on federalism grounds that,
therefore, weighs most heavily where the
particular area to be preempted, e.g., state
common-law tort, is “traditionally the domain of
state law,” or that “the mere fact of tension
between federal and state law is generally not
enough to establish an obstacle supporting
preemption.” Hillman v. Maretta, ___U.S.___,
133 S. Ct. 1943 (2013); see also, San Diego Bldg.
20
Trades Council v. Garmon, 359 U.S. 236, 244
(1959).
In fact, it is only in cases where Congress’
intent regarding preemption is unclear (unlike
here), that state law must yield to federal law
when it is impossible to comply with both state
and federal law or when the state law stands as
an obstacle to the accomplishment of the full
purposes and objectives of federal law. Silkwood
v. Kerr-McGee Corp., 464 U.S. 238 (1984).
However, the Supreme Court has cautioned that
a common-law right, even absent a savings
clause, is not to be abrogated “unless it be found
that the preexisting right is so repugnant to the
statute that the survival of such right would in
effect deprive the subsequent statute of its
efficacy; in other words, render its provisions
nugatory.” Nader v. Allegheny Airlines, Inc., 426
U.S. 290 (1976).
Because the Second Circuit fails to provide the
reasons
how
or
why
“compliance”
with
Petitioners’ purely monetary common law claims
could have possibly posed an obstacle to
CERCLA’s full purpose and objective, especially
given the fact that the remediation was
completed more than two years before the
District Court dismissed their claims. In fact, the
Court rejected the Circuit Court’s very similar
argument in Waldburger that state statutes of
repose should be preempted by CERCLA because
remedial statutes like CERCLA be given liberal
interpretation in order to achieve their purpose.
134 S. Ct. 2185.
Nor is it clear how the Second Circuit’s
detailed explanation of Honeywell’s supervision
21
by multiple state and federal agencies supports
its conclusion that Petitioners’ state common law
claims
resulting
from
the
negligent
implementation of the geotube covers must be
preempted. What does appear clear is that the
Second Circuit improperly assessed Petitioners’
credibility versus the credibility of Honeywell
and those multiple state and federal agencies,
and concluding that Honeywell had fulfilled its
obligations. App. 14a-16a
Perhaps the most ambiguous and confusing
portion of the Second Circuit’s decision relates to
Petitioners’ argument that Honeywell negligently
failed to conduct additional bench-scale tests to
predict emissions from the geotube dewatering
method, on the basis that such compliance would
subject Honeywell to potential state tort liability
and thus pose an obstacle to the accomplishment
and execution of Congress’ full purposes and
objectives. App. at 16a.
In fact, a careful analysis inescapably leads to
the conclusion that Petitioners’ common law tort
claims for damages do not conflict with CERCLA
at all and are not preempted simply because
Honeywell might be exposed to money damages
for Petitioners’ common law tort claims.
Indeed, as this Court held in Silkwood v. KerrMcGee Corp., in the context of a tort action
against a Nuclear facility governed by PriceAnderson Act, an award of damages does not
conflict with a federal remedial scheme under
which the
federal
regulatory
agency
is
authorized to impose civil penalties for violation
of federal standards (“paying both federal fines
and [money] damages for the same incident is
22
not physically impossible, nor does exposure to
[money] damages frustrate any purpose of the
federal remedial scheme”). 464 U.S. 257-258.
(internal citations omitted). As in Silkwood, a
claim and ultimate award of money damages to
Petitioners does not conflict or hinder CERCLA’s
purpose, which the Circuit Court explained is to
“to encourage settlements and the prompt
cleanup of contaminated sites,” and promote
“efficiency and regulatory expertise in effecting a
remedy,” especially given that the remediation
was complete over two years before the District
Court dismissed Petitioners Amended Complaint.
App. 11a.
Finally,
the
Second
Circuit’s
conflict
preemption analysis also ignored numerous other
circuit and district court decisions that have
explicitly
recognized
that
“CERCLA
contemplates actions brought under State law for
personal injury, or property damages[,]” Village
of Depue, Illinois v. Exxon Mobil Corp., 537 F.3d
775 (7th Cir. 2008); that “CERCLA’s savings
clauses (as well as other CERCLA provisions)
undoubtedly preserve a quantum of state
legislative and common law remedies related to
the release and cleanup of hazardous waste.”
State of New Mexico v. Gen. Elec. Co., 467 F.3d
1223 (10th Cir. 2006); and that “it is uniformly
recognized
that
in
enacting
CERCLA,
Congress expressly disclaimed an intent to
preempt state tort liability for damages caused
by the release of hazardous substances.” AbboBradley v. City of Niagara Falls, 2013 U.S. Dist.
LEXIS 1194134, *20-21 (W.D.N.Y. Aug 21, 2013),
citing PMC, Inc. v. Sherwin-Williams Co., 151
F.3d 610, 617 (7th Cir. 1998).
23
The Second Circuit’s conflict preemption
analysis also ignored recent decisions from the
Third and Sixth Circuits that held that common
law tort claims are not pre-empted under the
provisions Clean Air Act which has historically
been interpreted as being consistent with
CERCLA. See Bell v. Cheswick Generating
Station, 734 F.3d 188, 190-191 (3d Cir. 2013); see
also, Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015)( holding that the
Clean Air Act (CAA) did not preempt the state
law tort claims of a putative class of property
owners who alleged that a distillery’s ethanol
emissions
intruded
onto
their
property,
constituting trespass, nuisance, and negligence),
and Little v. Louisville Gas & Electric, 805 F.3d
695 (6th Cir. 2015).
CONCLUSION
It is respectfully requested, that this petition
for certiorari be granted.
Dated: August 23, 2018
Respectfully submitted,
McCALLION & ASSOCIATES LLP
By: Kenneth F. McCallion Esq.
Kristian K. Larsen, Esq.
100 Park Avenue – 16th Floor
New York, New York 10017
(646) 366-0884
Attorneys for Petitioners
APPENDIX
SUMMARY ORDER,
2ND CIR. CT. OF APPEALS . . . . . . . . . .1a
MEMORANDUM-DECISION
AND ORDER, N.D.N.Y. . . . . . . . . . . . . . .19a
1a
UNITED STATES COURT OF APPEALS
FOR THE S ECOND C IRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT
HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR
AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 25th
day of May, two thousand eighteen.
PRESENT:
R OBERT D. S ACK ,
D EBRA A NN L IVINGSTON ,
S USAN L. C ARNEY ,
Circuit Judges.
__________
17-1907-cv
__________
76052 • APP1SOURCE • APPENDIX part: 1
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2a
R OBERT B ARTLETT , C OLLEN B ARTLETT , W ILLIAM
B ARRINGTON , III, M ICHELLE B ARRINGTON , K IM
C ALVERASE , D ANIEL D ANTUONO , V ERUSKA
D ANTUONO , D AVID D EDO , J ULIETTE D EDO ,
T IMOTHY D ELANY , S ALLY D ELANY , B RIAN
DELLOW, TRACY DELLOW, RON GRYZLEC, BRENDA
C ARPENTER , D OUGLAS H ART , C HARLENE H ART ,
T HOMAS K SHYNA , K IMBERLY K SHYNA , M ATTHEW
L ICAMELI , T RACY L ICAMELI , J OHN M ARINELLI ,
K ATHLEEN M ARINELLI , W ILLIAM M ATHEWSON ,
STEPHANIE MATHEWSON, PETER MEDINA, JENAFER
M EDINA , B RYAN M IGNONE , E LAINE E VERITT ,
B RIAN M URPHY , K IMBERLY M URPHY , S COTT
M USEMECI , J ILL M USEMECI , J ERRY P ARZYCH ,
KRISTINA PARZYCH, JONATHAN PATCH, MARGARET
P ATCH , T IMOTHY P IEPER , S HARON P IEPER ,
F REDERICK P UCHTA , H EATHER P UCHTA , L YNORE
D E L A R OSA , M ARK D E L A R OSA , R OBERT S MITH ,
L ORI S MITH , J OEY S T . L OUIS , R OBERT V ERTUCCI ,
M EGAN V ERTUCCI , M ICHAEL W ADE , L YNDA
W ADE , D AVID C ORRENTE , G ARY C ORRENTE , L UCY
C ORRENTE , S ARAH M ARTINELLI , D EBORAH R OSS ,
individually and as the representative of the
E STATE OF E DWARD W ILBUR , T HOMAS G DULA ,
K IMBERLY G DULA , M ICHAEL K SHYNA , A LPHA
K SHYNA , M C K ENZIE Y OST ,
Plaintiffs-Appellants,
C AMILLUS C LEAN A IR C OALITION ,
Camillus Clean Air Coalition,
—v.—
H ONEYWELL I NTERNATIONAL , I NC .,
Defendant-Cross-Defendant-Appellee.
__________
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3a
For Plaintiffs-Appellants:
KENNETH F. MCCALLION (Kristian K. Larsen, on
the brief), McCallion & Associates LLP, New York,
New York.
For Defendant-Cross-Defendant-Appellee:
B R I A N D. I S R A E L (Andrea M. Broach, Robert
Leider, Kerry A. Dziubek, on the brief), Arnold &
Porter Kaye Scholer LLP, Washington, District of
Columbia, New York, New York.
Appeal from a judgment of the United States
District Court for the Northern District of New
York (Scullin, J.) entered May 19, 2017.
UPON DUE CONSIDERATION, IT IS
HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court
is AFFIRMED.
Plaintiffs-Appellants, residents and property
owners living near a waste disposal area known as
“Wastebed 13” at the Onondaga Lake Superfund
site (the “residents”), appeal from a May 19, 2017
judgment of the United States District Court for
the Northern District of New York (Scullin, J.)
granting the motion of Defendant-CrossDefendant-Appellee Honeywell International Inc.
(“Honeywell”) to dismiss the residents’ Amended
Complaint. Prior to oral argument, we directed
the parties to file supplemental briefing as to the
basis of our and the district court’s subject matter
jurisdiction. This appeal turns on whether we
have jurisdiction and, if so, whether the state tort
law claims alleged by the residents are preempted
by the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”),
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4a
Pub. L. No. 96-510, 94 Stat. 2767, codified as
amended, 42 U.S.C. §§ 9601 et seq. The district
court concluded that it had jurisdiction and the
state-law claims were preempted by CERCLA. We
agree. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case,
and the issues on appeal, which we reference only
as necessary to explain our decision to affirm.
I.
SUBJECT MATTER JURISDICTION
Although the parties did not dispute our or the
district court’s subject matter jurisdiction in their
original appellate briefs, “every federal appellate
court has a special obligation to satisfy itself not
only of its own jurisdiction, but also that of the
lower courts in a cause under review, even though
the parties are prepared to concede it.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)
(brackets omitted) (citations and internal quotation
marks omitted). In earlier proceedings, the
district court concluded that it had both federal
question and supplemental jurisdiction over the
residents’ claims, under 28 U.S.C. § 1331 and 28
U.S.C. § 1367, respectively, and declined to
address whether it had diversity jurisdiction,
under 28 U.S.C. § 1332. See Camillus Clean Air
Coal. v. Honeywell Int’l, Inc., No. 5:13-cv-365
(FJS) (DEP), 2013 WL 4774507, at *1–3 (N.D.N.Y.
Sept. 4, 2013). Upon review, we conclude that we
have subject matter jurisdiction as both federal
question and diversity jurisdiction are present.1
1
The district court suggested, in the alternative, that
even if federal question and diversity jurisdiction were absent,
76052 • APP1SOURCE • APPENDIX part: 1
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5a
A. FEDERAL QUESTION JURISDICTION
Under 28 U.S.C. § 1331, “[t]he district courts
shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331 (emphasis
added). The Supreme Court has explained that
“where a claim finds its origins in state rather
than federal law . . . we have identified a ‘special
and small category’ of cases in which arising
under jurisdiction still lies.” Gunn v. Minton, 568
U.S. 251, 258 (2013) (quoting Empire Healthchoice
Assurance, Inc. v. McVeigh, 547 U.S. 677, 699
(2006)). The Gunn Court noted that “federal
jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually
disputed, (3) substantial, and (4) capable of
resolution in federal court without disrupting the
federal-state balance approved by Congress.” Id.
For substantially the reasons stated by the
it could nonetheless exercise supplemental jurisdiction over
the residents’ state-law claims. See Camillus Clean Air
Coal., 2013 WL 4774507, at *2–3. We disagree. Our recent
precedent precludes the exercise of supplemental jurisdiction
where an action’s sole federal claim has been dismissed for
lack of subject matter jurisdiction. See Cohen v. Postal
Holdings, LLC, 873 F.3d 394, 399 (2d Cir. 2017) (“[W]hen a
district court correctly dismisses all federal claims for lack of
subject-matter jurisdiction . . . the district court is thereby
precluded from exercising supplemental jurisdiction over
related state-law claims.”); id. at 399 n.5 (collecting cases
demonstrating that “[e]very other federal court of appeals to
have considered the issue has also so held[]”). Of course,
nothing in this supplemental jurisdiction discussion alters
our determination that we possess subject matter jurisdiction
in this appeal on both federal question and diversity jurisdiction
grounds.
76052 • APP1SOURCE • APPENDIX part: 1
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6a
district court, we agree that the issues implicated
by the residents’ allegations – including whether
Honeywell has complied with a consent decree
approved by a federal district court and the
circumstances under which CERCLA might
preempt the residents’ state tort law claims –
raise disputed, substantial federal issues which
are amenable to federal court resolution without
interfering with the federal-state balance
approved by Congress. See Camillus Clean Air
Coal., 2013 WL 4774507, at *1–2. As the district
court persuasively observed, “under the
circumstances of this case, ‘a contrary holding
that the district court lacks jurisdiction could
allow litigants to use the state courts as a vehicle
to undermine a federal court’s ability to police its
consent decrees[.]’” Id. at *2 n.2 (quoting United
States v. City of Loveland, 621 F.3d 465, 472 (6th
Cir. 2010)). Accordingly, subject matter
jurisdiction is present because we have federal
question jurisdiction.
B. DIVERSITY JURISDICTION
Additionally, we have subject matter jurisdiction
for the independent reason that diversity jurisdiction’s requirements are satisfied. While the
district court declined to address whether the
district court had diversity jurisdiction under 28
U.S.C. § 1332, see id. at *3 n.3, we may affirm on
any ground supported in the record, see Shumway
v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d
Cir. 1997). Diversity jurisdiction is present when
there is complete diversity between the parties
and “the matter in controversy exceeds the sum or
value of $75,000.” 28 U.S.C. § 1332(a). Here, all
76052 • APP1SOURCE • APPENDIX part: 1
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7a
the requirements for diversity jurisdiction are
met. To focus first on the inception of the lawsuit,
there was complete diversity between all residents
and Honeywell both at the time the original
complaint was filed on March 18, 2013 and then
on April 2, 2013, when Honeywell removed the
action to federal court. All plaintiffs are and were
New York citizens and Honeywell was and
remains a corporation organized under Delaware
law, with its principal place of business in
Morristown, New Jersey.
The residents’ attempts to contend otherwise
are unavailing. First, they argue that because two
plaintiffs, Charlene and Douglas Hart, moved
from New York to New Jersey in January 2014
(and then back to New York around November
2015), diversity jurisdiction is defeated. However,
the move to New Jersey occurred after the original
complaint was filed and after Honeywell’s
removal. And it is well established that
“[j]urisdiction once acquired . . . is not divested by
a subsequent change in the citizenship of the
parties.” Wichita R.R. & Light Co. v. Pub. Utils.
Comm’n of the State of Kan., 260 U.S. 48, 54
(1922); see also OneWest Bank, N.A. v. Melina, 827
F.3d 214, 218 (2d Cir. 2016) (per curiam).
Next, the residents contend – contrary to settled
case law – that Honeywell should be considered a
citizen of New York because it uses an office in
upstate New York for purposes relating to the
Consent Decree. If, as the residents urge, we were
to deem Honeywell a New York citizen, its
purported New York citizenship would defeat
diversity jurisdiction since every plaintiff is a
76052 • APP1SOURCE • APPENDIX part: 1
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8a
citizen of New York. However, under 28 U.S.C. §
1332(c)(1), “a corporation shall be deemed to be a
citizen of every State and foreign state by which it
has been incorporated and of the State or foreign
state where it has its principal place of business.”
And the Supreme Court has held that a company’s
principal place of business can be only a “single”
state, Hertz Corp. v. Friend, 559 U.S. 77, 93
(2010), and “should normally be the place where
the corporation maintains its headquarters –
provided that the headquarters is the actual
center of direction, control, and coordination, i.e.,
the ‘nerve center,’ and not simply an office where
the corporation holds its board meetings,” id.
Here, both the residents’ Amended Complaint and
even their original complaint allege that
Honeywell is headquartered in New Jersey, not in
New York. In short, because every plaintiff is a
citizen of New York and Honeywell is a citizen of
Delaware (because it is incorporated there) and
New Jersey (because that is the location of its lone
principal place of business), complete diversity of
citizenship exists between all plaintiffs and
Honeywell.
As for the $75,000 jurisdictional threshold for
the value of the “matter in controversy,” 28 U.S.C.
§ 1332(a), the residents claim that each and every
plaintiff must meet the $75,000 threshold. But the
Supreme Court has explicitly rejected the
precedents relied upon by the residents for this
proposition. In Exxon Mobil Corp. v. Allapattah
Servs. Inc., the Supreme Court held that a
defendant must only establish a reasonable
probability that one (not all) of the plaintiffs’
76052 • APP1SOURCE • APPENDIX part: 1
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9a
claims exceeds $75,000. See 545 U.S. 546, 566–67
(2005). Here, based upon the allegations in the
pleadings, the Exxon Mobil standard – whether
there is a reasonable probability that the damages
sought by at least one plaintiff meet the $75,000
threshold – is satisfied. The residents have not
asserted an amount of monetary damages, so, in
these circumstances, we “may look outside those
pleadings to other evidence in the record” to
determine the amount in controversy. United Food
& Commercial Workers Union, Local 1919 v.
CenterMark Props. Meriden Square, Inc., 30 F.3d
298, 305 (2d. Cir. 1994). The residents do not deny
that at least one of their claims might exceed
$75,000. Instead, they focus on their out-of-date
legal argument that each and every plaintiff must
meet the $75,000 threshold, which is expressly
foreclosed by Exxon Mobil. And, regardless, the
residents’ allegations involve a wide range of
conduct likely to exceed the $75,000 threshold,
encompassing personal injury claims, property
damage, and loss of enjoyment. Moreover, the
residents never stipulated that they would limit
their recovery to less than $75,000 per plaintiff.
Thus, there is a reasonable probability that at
least one plaintiff meets the $75,000 jurisdictional
threshold. Accordingly, we conclude that diversity
jurisdiction is present.
II. CERCLA PREEMPTION
Turning to the merits, we conclude that
CERCLA preempts the residents’ state tort law
claims.
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10a
A. LEGAL FRAMEWORK
We review de novo a district court’s grant of a
motion to dismiss for failure to state a claim on
which relief can be granted, “accepting all factual
allegations in the complaint as true and drawing
all reasonable inferences in favor of the plaintiff.”
See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir.
2010). In resolving a motion to dismiss, “we may
consider any written instrument attached to the
complaint, statements or documents incorporated
into the complaint by reference, . . . and documents
possessed by or known to the plaintiff and upon
which it relied in bringing the suit.” ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87,
98 (2d Cir. 2007). “[W]here a conclusory allegation
in the complaint is contradicted by a document
attached to the complaint, the document controls
and the allegation is not accepted as true.”
Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671
F.3d 140, 147 (2d Cir. 2011) (per curiam). “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 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Although a court must accept as true
all the factual allegations in the complaint, that
requirement is “inapplicable to legal conclusions.”
Id. The plausibility standard “asks for more than
a sheer possibility that a defendant has acted
unlawfully.” Id. “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679.
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11a
Conflict preemption 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); see also In re Tribune Co. Fraudulent
Conveyance Litig., 818 F.3d 98, 110 (2d Cir. 2016)
(“Preemption is always a matter of congressional
intent, even where that intent must be inferred.”).
CERCLA was enacted in 1980 “in response to the
serious environmental and health risks posed by
industrial pollution.” United States v. Bestfoods,
524 U.S. 51, 55 (1998). “As its name implies,
CERCLA is a comprehensive statute that grants
the President broad power to command government
agencies and private parties to clean up hazardous
waste sites.” Id. (quoting Key Tronic Corp. v.
United States, 511 U.S. 809, 814 (1994)); see also
42 U.S.C. § 9604. In assessing conflict preemption
in the CERCLA context, we are mindful that two
of CERCLA’s purposes are “to encourage settlements and the prompt cleanup of contaminated
sites.” Town of Halfmoon v. Gen. Elec. Co., 105 F.
Supp. 3d 202, 219 (N.D.N.Y. 2015). As the Third
Circuit has explained, in enacting CERCLA,
Congress also stressed the importance of efficiency
and regulatory expertise in effecting a remedy.
See Clinton Cty. Comm’rs v. E.P.A., 116 F.3d 1018,
1021–24 (3d Cir. 1997) (en banc).
76052 • APP1SOURCE • APPENDIX part: 1
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B. DISCUSSION
The instant conflict preemption analysis focuses
on whether, under the circumstances of this
particular case, the Amended Complaint’s alleged
state tort law violations conflict with a CERCLA
remediation plan enforced by a federal consent
decree. That is, whether it is impossible for
Honeywell to comply with both state tort law and
CERCLA or whether the residents’ state-law
claims stand as an obstacle to the accomplishment
and execution of the full purposes and objectives
of Congress.
One of CERCLA’s provisions, 42 U.S.C.
§ 9622(e)(6), prohibits Honeywell from commencing
any remedial action except for those expressly
authorized in the consent decree:
When either the President, or a potentially
responsible party pursuant to an
administrative order or consent decree
under this chapter, has initiated a
remedial investigation and feasibility
study for a particular facility under this
chapter, no potentially responsible party
may undertake any remedial action at the
facility unless such remedial action has
been authorized by the President.
42 U.S.C. § 9622(e)(6) (emphasis added). For its
part, the district court determined that CERCLA
preempts the residents’ claims because the
allegations amount to nothing more than a belated
challenge to the adequacy of the consent decree
itself (as opposed to a failure by Honeywell to
comply with or properly implement the consent
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decree). See Bartlett v. Honeywell Int’l, Inc., 260 F.
Supp. 3d 231, 246 (N.D.N.Y. 2017). That is, the
district court reasoned, at bottom the residents
were impermissibly arguing, on a state tort law
theory, that Honeywell should have departed from
the consent decree’s terms by conducting
additional or different remedial action than that
mandated by CERCLA and the consent decree.
As to many of the Amended Complaint’s
allegations, we agree with the district court that
CERCLA preempts the residents’ claims because
the residents merely challenge the adequacy of the
consent decree itself. For instance, the residents
repeatedly protest Honeywell’s purported failure
to conduct the geotube process in a “closed
system.” J.A. 90–92. But this characterization of
the system as one that was supposed to have been
essentially hermetically sealed is misleading, as
statements from Honeywell, the United States
Environmental Protection Agency (“EPA”), and
the New York State Department of Environmental
Conservation (“DEC”) included in the seven
volumes of appendices attached to the residents’
Amended Complaint demonstrate that such
hermetic sealing was never anticipated under the
consent decree. See, e.g., id. at 327 (“The majority
of contaminants will remain trapped within the
sediments in the geotextile tubes; however, some
contaminants will be contained in the draining
water.” (emphases added)); id. at 1598 (describing
a “virtually closed system” and stating that the
system will be “enclosed, to the extent practicable”
(emphases added)). Similarly unavailing are the
residents’ allegations about purported deficiencies
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in Honeywell’s perimeter air monitoring system,
such as the system’s inability to detect certain
emissions. In fact, Honeywell publicly disseminated
the specifications of the allegedly insufficient
perimeter air monitoring system, the DEC and
EPA reviewed and approved this system, and the
system became part of the binding consent decree,
which Honeywell was obligated to follow. Put
simply, the residents’ perimeter air monitoring
system allegations also are undisguised attacks on
the consent decree’s terms. Thus, CERCLA
preempts many of the Amended Complaint’s
allegations because they transparently attack – on
the basis of state tort law – the consent decree
itself, and not its implementation.
Whether two other categories of the residents’
allegations are preempted, however, is a closer
call. Specifically, the residents allege that
Honeywell: (1) after the 2012 dredging shutdown,
violated the consent decree by not implementing
certain measures to cover the geotubes; and (2)
before commencing dredging, was negligent in not
conducting additional bench- scale tests of the
emissions implications of using geotubes rather
than open basins for sediment dewatering.
Although the district court did not directly
address these allegations in its opinion below, we
nonetheless conclude that, from the face of the
Amended Complaint and the seven volumes of
appendices attached to it, these allegations also
are preempted by CERCLA.
Taking these assertions in turn, the residents’
claim that Honeywell ran afoul of state tort law
(and violated the consent decree) by not covering
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some of the geotubes is implausible. Indeed,
documents attached to the Amended Complaint –
and fatal to this claim’s plausibility – plainly
reveal that (a) multiple state and federal expert
supervising government agencies acting within
their statutory authority, and (b) the federal
district court overseeing the consent decree’s
implementation, have extensively supervised
Honeywell’s conduct and determined that
Honeywell complied fully with its responsibilities
under CERCLA and the consent decree. See, e.g.,
id. at 269, 274–81, 284–86, 288, 294–301, 306–08
(consent decree mandating that the DEC oversee
the implementation of the CERCLA remedy,
imposing vast monitoring requirements on various
state and federal expert government agencies, and
vesting the district court with continuing
jurisdiction to enforce and interpret the consent
decree); id. at 288 (requiring that Honeywell
provide the DEC with on-site office space); id. at
831, 840, 857–67, 889 (describing, in painstaking
detail, certain of the extensive, real-time air
monitoring systems in place and obliging
Honeywell to relay various daily, monthly, and
quarterly submissions to state and federal expert
government agencies); id. at 1045 n.1 (June 25,
2014 letter from the EPA representing that
“[f]rom the onset, the New York State Department
of Health has . . . been very involved in the
Onondaga Lake project and works closely with
NYSDEC and the EPA on all human healthrelated matters pertaining to the project”); id. at
1046 (June 25, 2014 letter from the EPA affirming
that “[d]uring the period of dredging operations,
there has been no evidence of adverse impacts to
76052 • APP1SOURCE • APPENDIX part: 1
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16a
human health” and “the project is being
implemented in a manner which is fully protective
of public health”); id. (June 25, 2014 letter from
the EPA quoting the conclusion of the federal
district court overseeing the consent decree’s
implementation that “pursuant to the Court’s
oversight responsibility with regard to the
implementation of the Consent Decree, . . . the
Court [after inquiring of multiple experts] . . . is
satisfied that the methods and procedures that
[Honeywell] is employing in the cleanup present
no health risks to the surrounding communities”
(internal quotation marks omitted) (first ellipses
in original)).
As for the residents’ state law claims arising
from Honeywell’s purported negligence in failing
to conduct additional bench-scale tests assessing
the prudence of using geotubes rather than open
basins for sediment dewatering, we conclude that
subjecting Honeywell to potential state tort law
liability for this alleged conduct would pose an
obstacle to the accomplishment and execution of
Congress’s full purposes and objectives. Cf. New
Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1249–50
(10th Cir. 2006) (“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.”). In the particular circumstances
of this appeal (demonstrated in the voluminous
attachments to the Amended Complaint) – i.e., the
meticulously negotiated remediation of the
Onondaga Lake Superfund site which was the
product of approximately two decades of legal and
76052 • APP1SOURCE • APPENDIX part: 1
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technical efforts, including public notice and
comment and extensive supervision by a federal
court and state and federal expert agencies –
CERCLA preempts the residents’ attempts to
impose state tort law liability on Honeywell for
not going above and beyond a testing regime
which the EPA itself described as “extensive.” J.A.
637; see also id. (EPA explaining that “the local
community raised concerns pertaining to potential
odor generation using th[e] dewatering method[,]”
and “[i]n response to these community concerns,
an extensive evaluation comparing the geotextile
tube and settling basin dewatering methods based
on 10 site-specific dewatering objectives was
conducted . . . . Based on this evaluation, it was
determined that there are many site-specific
benefits of using geotextile tubes as compared to
settling basins[]”); id. at 637–38 (listing several
site-specific benefits of using geotubes rather than
open basins for sediment dewatering).
III.
LEAVE TO AMEND
We review a district court’s determination to
deny a party leave to amend its complaint for
abuse of discretion. See McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Below, the residents cursorily, at the end of their
opposition brief, requested leave to amend their
Amended Complaint. The district court denied the
request, noting “[t]o the extent that Plaintiffs
intended this discussion to serve as a motion for
leave to amend their amended complaint, it does
not comply with this [c]ourt’s Local Rules
regarding such motions; and, therefore, the [c]ourt
will not consider it.” Bartlett v. Honeywell Int’l,
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Inc., 260 F. Supp. 3d 231, 246 n.7 (N.D.N.Y. 2017)
(citing NDNY Local Rule 7.l(a)(4)). Likewise, on
appeal, the residents again throw in a perfunctory
request for leave to amend, raised in their opening
brief solely as their twentieth question presented
but with no argument explaining why the district
court erred, how any amendment would cure the
Amended Complaint’s deficiencies, and without
citation to any authority. Although they make a
faint attempt to support this contention in their
reply brief, the residents’ half-hearted efforts
constitute abandonment of any request on appeal
for leave to amend. See Fed. R. App. P. 28(a)(8)(A);
Diesel v. Town of Lewisboro, 232 F.3d 92, 110 (2d
Cir. 2000). And, in any event, the residents never
submitted a proposed amended pleading nor did
they indicate how any amendment would cure the
Amended Complaint’s shortcomings. We thus
conclude that the district court did not abuse its
discretion in rejecting the residents’ fleeting
request for leave to amend. See, e.g., Metz v. U.S.
Life Ins. Co. in City of N.Y., 662 F.3d 600, 603 (2d
Cir. 2011) (per curiam).
***
We have considered all of the residents’
remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of
the district court.
FOR THE COURT:
/s/
Catherine O’Hagan Wolfe, Clerk of Court
[SECOND CIRCUIT SEAL]
76052 • APP1SOURCE • APPENDIX part: 1
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19a
UNITED STATES DISTRICT COURT
N ORTHERN D ISTRICT OF N EW Y ORK
__________
5:13-CV-365
(FJS/DEP)
__________
R OBERT and C OLLEEN B ARTLETT ; W LLIAM and
M ICHELLE B ARRINGTON , III; K IM C ALVERASE ;
D ANIEL and V ERUSKA D ANTUONO ; D AVID and
J ULIETTE D EDO ; T IMOTHY and S ALLY D ELANY ;
B RIAN and T RACY D ELLOW ; R ON G RYZLEC ;
B RENDA C ARPENTER ; D OUGLAS and C HARLENE
H ART ; T HOMAS and K IMBERLY K SHYNA ;
M ATTHEW and T RACY L ICAMELI ; J OHN and
K ATHLEEN M ARINELLI ; W ILLIAM and S TEPHANIE
M ATHEWSON ; P ETER and J ENAFER M EDINA ;
B RYAN M IGNONE ; E LAINE E VERITT ; B RIAN and
K IMBERLY M URPHY ; S COTT and J ILL M USEMECI ;
J ERRY and K RISTINA P ARZYCH ; J ONATHAN and
M ARGARET P ATCH ; T IMOTHY and S HARON
P IEPER ; F REDERICK and H EATHER P UCHTA ;
L YNORE and M ARK de la R OSA ; R OBERT and L ORI
S MITH ; J OEY S T . L OUIS ; R OBERT and M EGAN
V ERTUCCI ; M ICHAEL and L YNDA W ADE ;
D AVID C ORRENTE ; G ARY C ORRENTE ; L UCY
C ORRENTE ; S ARAH M ARTINELLI ; D EBORAH
R OSS , individually and as the representative
of the Estate of Edward Wilbur; T HOMAS and
K IMBERLY G DULA ; M ICHAEL and A LPHA K SHYNA ;
and M C K ENZIE Y OST ,
Plaintiffs,
—v.—
H ONEYWELL I NTERNATIONAL , I NC .,
__________
76052 • APP1SOURCE • APPENDIX part: 2
Defendant.
AL 8/21/18
20a
APPEARANCES
OF COUNSEL
M C A LLION &
A SSOCIATES , LLP
100 Park Avenue –
16th Floor
New York, New York
10017
K ENNETH F.
M C C ALLION , E SQ .
Attorneys for Plaintiffs
L ARSEN A DVOCATES ,
P.C.
104 First Place
Brooklyn, New York
11231
K RISTIAN K. L ARSEN ,
E SQ .
Attorneys for Plaintiffs
A RNOLD & P ORTER
K AYE S CHOLER
601 Massachusetts
Avenue N.W.
Washington, District of
Columbia 20001
A NDREA M. B ROACH ,
E SQ .
B RIAN D. I SRAEL , E SQ .
G EOFFREY J.
M ICHAEL , E SQ .
Attorneys for Defendant
G ILBERTI , S TINZIANO , A NTHONY P.
H EINTZ & S MITH , P.C. R IVIZZIGNO , E SQ .
555 East Genesee Street
Syracuse, New York
13202
Attorneys for Defendant
76052 • APP1SOURCE • APPENDIX part: 2
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21a
O FFICE OF L ISA
D I P OALA H ABER
217 Montgomery Street
Syracuse, New York
13202
L ISA A. D I P OALA
H ABER , E SQ .
Attorneys for Defendant
S CULLIN , Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court is Defendant’s motion
to dismiss Plaintiffs’ amended complaint pursuant
to Rule 12(b)(6) and (7) of the Federal Rules of
Civil Procedure. See generally Dkt. No. 109.
II. BACKGROUND1
In 1989, New York State sued Allied-Signal Inc.,
seeking to compel Allied-Signal to undertake the
cleanup of Onondaga Lake under the Comprehensive
Environmental Response, Compensation, and
Liability Act (“CERCLA”). In 1992, Allied-Signal
Inc. and New York State entered into a consent
decree requiring Allied-Signal to undertake a
remedial investigation and feasibility study for
the Onondaga Lake Superfund Site in compliance
with the regulations promulgated under CERCLA.
See 42 U.S.C. § 9605. Defendant is the successor
to Allied-Signal Inc.
1
The Court has drawn much of the following background
information from its previous Memorandum-Decision and
Order. See Dkt. No. 49.
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22a
In 1993, the United States Environmental
Protection Agency (“EPA”) and New York State
Department of Environmental Conservation
(“DEC”) entered into a cooperative agreement
pursuant to CERCLA § 104(d), 42 U.S.C. § 9604(d),
with respect to the Onondaga Lake Superfund Site
(“Cooperative Agreement”). The Cooperative
Agreement provided that DEC would be the lead
agency with respect to the site and would prepare,
subject to EPA’s approval, draft records of decisions
setting forth the proposed remedial actions for each
of the subsites of the Onondaga Lake Superfund
Site, including the Onondaga Lake Bottom Subsite
(“Site”), which is the subject of this action.
In 2004, following the completion of a Remedial
Investigation and Feasibility Study (“RI/FS”),
DEC issued a proposed cleanup plan for the Site
(“Proposed Plan”), which DEC determined to be
“protective of human health and the environment.”
The Proposed Plan called for dredging up to 2.65
million cubic yards of sediment from the lake
and transporting those sediments to a sediment
consolidation area that Defendant would construct
on its property in the Town of Camillus. The
Proposed Plan was subject to public comment from
November 29, 2004, until March 1, 2005, and,
after the concurrence of EPA, again from April 1,
2005, until April 30, 2005.
Following public comment, in accordance with
CERCLA’s requirements, EPA and DEC issued a
joint record of decision (“ROD”) for the Site that
set forth the selected remedy for the Site. Among
other things, the ROD required dredging an
estimated 2.65 million cubic yards of sediment
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23a
from the lake bottom. In addition, the ROD required
that dredged sediment be transported via pipeline
to a sediment contamination area (“SCA”) located
in the Town of Camillus for treatment and storage.
The ROD stated that EPA and DEC had determined
that the selected remedy met the requirements set
forth in CERCLA § 121, 42 U.S.C. § 9621, because,
among other things, it was “protective of human
health and the environment.”
In 2006, Defendant and DEC agreed to enter
into a proposed consent decree requiring Defendant
to conduct the selected remedy for the Site set
forth in the ROD that the DEC and EPA had
issued. The proposed consent decree was subject
to public comment from October 12, 2006, to
November 13, 2006. On January 4, 2007, this
Court entered the proposed consent decree (“Consent
Decree”) as an Order of the Court. The Statement
of Work, Appendix C to the Consent Decree, required
that Defendant make good faith efforts to design
and construct the SCA within five years of entry
of the Consent Decree and complete dredging
operations within four years of construction.
Following entry of the Consent Decree, pursuant
to its Cooperative Agreement with EPA, DEC
retained primary oversight authority for the Site.
Notably, DEC retained authority to review and
approve Defendant’s technical submittals prior to
the start of dredging. Following DEC approval, all
submittals were “incorporated into and bec[a]me
an enforceable part of [the] Consent Decree.”
Throughout the design of the SCA, Defendant
submitted to DEC for approval a range of documents
regarding a variety of technical issues at the SCA,
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24a
including those relevant to the health and safety of
the project. In 2012, DEC approved the Community
Health and Safety Plan for the project (“CHASP”),
which detailed health and safety measures
integrated into the project for the protection of the
community and required the implementation of a
comprehensive air monitoring program. Later that
year, DEC approved the Quality Assurance Project
Plan for the Air Quality Monitoring Program
(“QAPP”), which detailed the air monitoring
program for the SCA, including the air quality
standards established for the Site. Pursuant to its
obligations under the Consent Decree, Defendant
initiated dredging of the lake bottom and transporting dredged materials to the SCA in 2012.
On March 18, 2013, Plaintiffs filed their original
complaint in this action in New York Supreme
Court, Onondaga County. In their complaint,
Plaintiffs asserted four causes of action grounded
on the following theories: (1) negligence, (2) nuisance,
(3) premises liability, and (4) trespass. In their
complaint, Plaintiffs also asked for injunctive
relief.
This Court subsequently granted Defendant’s
motion to dismiss Plaintiffs’ claims for injunctive
relief because it concluded that “it [did] not have
subject matter jurisdiction over” those claims.
Camillus Clean Air Coal. v. Honeywell Int’l, Inc.,
947 F. Supp. 2d 208, 216 (N.D.N.Y. 2013).
After additional motion practice regarding
remand, Defendant filed a motion for judgment on
the pleadings. See Dkt. No. 101. After conferring
with Plaintiffs, Defendant withdrew its motion
and allowed Plaintiffs to file an amended complaint,
76052 • APP1SOURCE • APPENDIX part: 2
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25a
which Plaintiffs thereafter filed on April 13, 2015.
See Dkt. No. 107.
In their amended complaint, Plaintiffs assert
three causes of action: (1) Defendant failed to employ
reasonable care under the circumstances in
implementing and in choosing the various methods
for remediation at the Site, see id. at ¶¶ 254-269;
(2) Defendant maintained a dangerous condition
on its property that created a private nuisance, see
id. at ¶¶ 271-274; and (3) Defendant’s actions “caused
toxic chemical particulates, both visible and
invisible, to be released into the air in the form of
vapor and dust which then landed on Plaintiffs’
real property and persons,” see id. at ¶ 276.
Defendant subsequently filed the pending
motion to dismiss based on the following grounds:
(1) Plaintiffs lacked standing to challenge the
Consent Decree; (2) CERCLA § 122(e)(6) preempted
Plaintiffs’ claims; (3) DEC was an indispensable
party that could not be joined because of sovereign
immunity; and (4), regardless of the merits of the
first three grounds, Plaintiffs failed to allege any
plausible state-law causes of action. See generally
Dkt. No. 109.
III. DISCUSSION
A. Standard of review
Courts use a two-step inquiry when addressing
a Rule 12(b)(6) motion. “First, they isolate the
moving party’s legal conclusions from its factual
allegations.” Hyman v. Cornell Univ., 834 F. Supp.
2d 77, 81 (N.D.N.Y. 2011). Second, courts must
accept factual allegations as true and “determine
76052 • APP1SOURCE • APPENDIX part: 2
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26a
whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A pleading must contain more than a “blanket
assertion[ ] of entitlement to relief.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 n.3 (2007). Thus, to
withstand a motion to dismiss, a pleading must be
“plausible on its face” such that it contains “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
(citation omitted).
Furthermore, when addressing a Rule 12(b)(6)
motion, a court may “consider documents attached
to or incorporated by reference in [a] complaint[.]”
Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)
(citation omitted). Even where “‘a plaintiff chooses
not to attach to the complaint or incorporate by
reference a [document] upon which it solely relies
and which is integral to the complaint,’ the court
may . . . take the document into consideration in
deciding the defendant’s motion to dismiss,
without converting the proceeding to one for
summary judgment.” Int’l Audiotext Network, Inc.
v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)
(quotation omitted).
In this case, the Court has considered Plaintiff’s
amended complaint as well as the documents
appended to the complaint.
B. Conflict preemption
1.
The parties’ positions
Defendant argues that Plaintiffs’ amended
complaint alleges that “certain choices in designing
and implementing the Onondaga Lake remediation
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27a
were made in error and give rise to State common
law claims, even though these choices were
thoroughly considered and approved by DEC and
are enforceable requirements under the Consent
Decree.” See Dkt. No. 109-1 at 7. More specifically,
Defendant characterizes Plaintiffs’ amended
complaint as resting “upon the premise that
[Defendant] should have undertaken remedial
actions other than those thoroughly considered
and authorized by DEC, such as using a different
sediment containment strategy or a different air
monitoring plan.” See id. at 9. However,
Defendant contends that CERCLA § 122(e)(6), 42
U.S.C. § 9622(e)(6), explicitly prohibits it from
undertaking any remedial actions other than
those that the Consent Decree authorizes. See id.
(quoting 42 U.S.C. § 9622(e)(6))
According to Defendant, “Congress left no
question here -- potentially responsible parties
(“PRPs”) such as [Defendant] must act in accordance
with agency direction and may not engage in remedial activity that is not authorized by the agency.”
See id. at 10. Therefore, according to Defendant,
“[a]llowing Plaintiffs’ claims to proceed would
contravene not only the plain text of § 122(e)(6),
but also its purpose -- to reinforce administrative
agency authority over the implementation of a
CERCLA remedy by prohibiting remedial actions
that have not been approved by the agency through
the formal remedial plan procedures of CERCLA.”
See id. Defendant further asserts that § 122(e)(6)
serves “‘to promote the policy of environmentally
sound and cost effective clean up through governmental, community and private party input into
the decisionmaking process.’“ See id. (quoting
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28a
Allied Corp. v. Acme Solvents Reclaiming, Inc.,
691 F. Supp. 1100, 1110 (N.D. Ill. 1988)). Indeed,
Defendant contends that “unauthorized remedial
actions would undermine the public participation
and input that occurred during this formal decisionmaking process.” See id. (citing United States v.
Drum Serv. Co. of Fla., 109 F. Supp. 2d 1348,
1357-59 (M.D. Fla. 1999)).
In essence, Defendant argues that Plaintiffs
base their common-law claims on Defendant’s failure
to take remedial action that the overseeing agencies
never authorized. See id. at 11. Accordingly,
Defendant asserts that “Plaintiffs cannot, through
the imposition of state common law liability, force
[Defendant] to pay damages for failure to undertake
remedial actions that would have been contrary to
the authorized, carefully considered remedy in the
cleanup plan and Consent Decree.” See id.
Defendant further contends that CERCLA
§ 302(d), 42 U.S.C. § 9652(d), one of CERCLA’s
savings clauses, “does not necessarily operate to
preserve any and all state law claims.” See Dkt.
No. 115 at 4 (citing New Mexico v. Gen. Elec. Co., 467
F.3d 1223 (10th Cir. 2006)). In that vein, Defendant
asserts that state-law claims are preempted if they
request relief that is inconsistent with the mandates
of CERCLA. See id. (citing New Mexico, 467 F.3d
at 1244). Defendant explains that, “[i]n New Mexico,
the Tenth Circuit found that CERCLA preempted
plaintiffs’ state law claims because the natural
resource damages plaintiffs sought were duplicative
of damages available under CERCLA, and if those
damages had been sought under CERCLA, rather
than state law, their post-awarded uses would be
more restricted.” See id. According to Defendant,
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29a
the Tenth Circuit’s rationale was “that if state law
damages sought by a plaintiff directly conflict
with some other mandate within CERCLA, those
claims cannot proceed.” See id. at 5.
Defendant argues that, in this case, Plaintiffs
seek damages premised on its failure to perform
remediation activities that the Consent Decree did
not approve. See id. Defendant contends that
“[a]llowing Plaintiffs’ claims to proceed would
mean that a CERCLA responsible party . . . could
be faced with the untenable choice between either:
(a) violating CERCLA § 122(e)(6); or (b) violating
state law.” See id.
Finally, Defendant asserts that CERCLA’s
savings clause was not meant to preserve the type
of claims that Plaintiffs bring in this suit.
According to Defendant, “the congressional intent
behind CERCLA was to ‘provide a vehicle for
cleaning up . . . improperly disposed of hazardous
substances,’ and the purpose of the Savings
Clause was ‘merely to nix an inference that the
statute in which it appears is intended to be the
exclusive remedy for harms caused by the violation
of the statute.’” See id. (internal citation omitted).
In other words, the savings clause “is intended to
preserve state law claims relating to the underlying
contamination CERCLA was enacted to address
(i.e., the contamination of the sediment in Onondaga
Lake), and not those relating to remediation
activities mandated by a consent decree.” See id. at
6. Thus, Defendant argues that the savings clause
does not give Plaintiffs a right to bring state-law
claims for alleged harms arising out of activities
that it was required to perform pursuant to a
CERCLA remedial order. See id.
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30a
Plaintiffs description of the nature of their
claims is, not surprisingly, very different than
Defendant’s. In this regard, Plaintiffs assert that
their “Amended Complaint clearly alleges that
[Defendant’s] actions give rise to a tort action,
both independent of, and in connection with [its]
negligent performance of its obligations under the
Consent Decree.” See Dkt. No. 113 at 8. According
to Plaintiffs, Defendant was obligated to ensure that
emissions of toxic substances from the remediation
site would not be harmful to the surrounding
community. See id. Plaintiffs argue that they are
not seeking to “challenge” or “enforce” the provisions
of the Consent Decree. See id. Rather, Plaintiffs
contend that they are merely bringing common law
claims based on Defendant’s negligent remediation.
See id. at 9. Thus, Plaintiffs argue that Defendant’s
“attempt to use the Consent Decree as a shield
against common law liability must fail.” See id. at
10. In other words, according to Plaintiffs, “the
Consent Decree does not immunize [Defendant]
for the grievous injuries inflicted on Plaintiffs,
and Plaintiffs have standing to redress these
wrongs.” See id.
Furthermore, Plaintiffs assert that CERCLA
§ 122(e)(6) does not preempt their claims. See id.
According to Plaintiffs, Defendant’s argument
blatantly ignores “the plain language of CERCLA
§ 302(d), which provides that
[n]othing 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
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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.
See id. (quoting 42 U.S.C. § 9652(d)).
Furthermore, Plaintiffs point to two additional
CERCLA provisions that they contend show that
their claims are not preempted. For example,
CERCLA § 309(a)(1), 42 U.S.C. § 9658(a)(1),
provides for when the state statute of limitations
applies to personal injury claims brought under
state law. See id. (citing 42 U.S.C. § 9658(a)(1)).
Moreover, CERCLA § 301(e)(1), 42 U.S.C.
§ 9651(e)(1), which is entitled “Adequacy of existing
common law remedies,” authorized a study “‘to
determine the adequacy of existing common law
and statutory remedies in providing legal redress
for harm to man and the environment caused by
the release of hazardous substances.’“ See id.
(quoting 42 U.S.C. § 9651(e)(1)).
In further support of their position, Plaintiffs
cite Abbo-Bradley v. City of Niagara Falls, No. 13CV-487, 2013 WL 4505454 (W.D.N.Y. Aug. 22,
2013), for the proposition that “‘Congress
expressly disclaimed an intent to preempt state
tort liability for damages caused by the release of
hazardous substances.’” See id. at 11 (quoting
Abbo-Bradley, 2013 WL 4505454 at *6). Furthermore, Plaintiffs argue that Vill. of DePue, Ill. v.
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Exxon Mobil Corp., 537 F.3d 775 (7th Cir. 2008),
“explicitly recognized that CERCLA contemplates
‘action[s] brought under State law for personal
injury, or property damages.’” See id. (quoting DePue,
537 F.3d at 786 [(quoting 42 U.S.C. § 9652(d))]).
Additionally, Plaintiffs assert that Defendant’s
reliance on New Mexico is inappropriate because
“‘CERCLA’s savings clauses (as well as other
CERCLA provisions) undoubtedly preserve a
quantum of state legislative and common law
remedies related to the release and cleanup of
hazardous waste.’” See id. (quoting New Mexico,
467 F.3d at 1246). Furthermore, Plaintiffs attempt
to distinguish New Mexico because it involved “a
state plaintiff’s attempt to seek natural resource
damages (‘NRD’) under duplicative and conflicting
CERCLA and state public nuisance and negligence
theories of recovery, while the plaintiffs here seek
damages for personal injuries and property
damages available only under common law.” See
id.
In that regard, Plaintiffs assert that their
“common law claims for personal injuries and
property damages are neither duplicative of other
claims under nor ‘contrary to the authorized,
carefully considered remedy in the cleanup plan
and the Consent Decree.’” See id. at 12 (quoting
Dkt. No. 109-1 at 11). Plaintiffs argue that they
“do not challenge the DEC or the EPA’s regulatory
authority to choose and authorize remedial
actions, or any other provisions of the Consent
Decree; nor are Plaintiffs’ claims contrary to
Congress’ objectives in enacting CERCLA.” See id.
In fact, Plaintiffs assert that
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the gravamen of [their] claims are that
[Defendant], through its failure to
perform and use due care in performing
the required APA and other procedures,
as mandated by the Consent Decree,
CERCLA, the NCP, the ECL, and the
DEC-approved Work Plans, and through
its inaccurate representations to the DEC,
the EPA and the public, circumvented the
authority of the DEC and the EPA and the
right of the public to meaningfully
participate in the remedial decision
making process.
See id.
2.
Analysis
The Supremacy Clause of Article VI of the
United States Constitution allows Congress to
enact laws that preempt state or local law.
Federal preemption can operate in one of three
ways. See Bedford Affiliates v. Sills, 156 F.3d 416,
426 (2d Cir. 1998) (overruled on other grounds)
(citations omitted).
First, Congress may in express terms
declare its intention to preclude state
regulation in a given area. . . . Second,
preemption may be implied when federal
law is “sufficiently comprehensive to make
reasonable the inference that Congress
‘left no room’ for supplementary state
regulation.” . . . Third, state law may be
preempted to the extent that it actually
conflicts with a valid federal statute.” . . .
Id. (internal quotations and citation omitted).
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With respect to the first form, known as
“express preemption,” it is well established that
CERCLA does not expressly preempt state law.
See State of N.Y. v. Shore Realty Corp., 759 F.2d
1032, 1041 (2d Cir. 1985) (citation omitted). As to
the second form, known as “field preemption,” the
courts have held that Congress did not intend
“that CERCLA be a comprehensive regulatory
scheme occupying the entire field of hazardous
wastes[.]” Bedford, 156 F.3d at 426.
Therefore, in this case, whether CERCLA preempts
Plaintiffs’ state-law claims for negligence, private
nuisance, and trespass turns on the third form,
“conflict preemption.” Conflict preemption occurs
where “‘compliance with both federal and state
[law] is a physical impossibility’” or where state
law “‘stands as an obstacle to the accomplishment
and execution of the full purposes and objectives
of Congress.’” Id. (quotations omitted).
Defendant contends that CERCLA § 122(e)(6)
explicitly prohibits it from undertaking any remedial
actions other than those that the Consent Decree
authorizes. Specifically, CERCLA § 122(e)(6)
provides that,
[w]hen either the President, or a
potentially responsible party pursuant to
an administrative order or consent decree
under this chapter, has initiated a
remedial investigation and feasibility
study for a particular facility under this
chapter, no potentially responsible party
may undertake any remedial action at the
facility unless such remedial action has
been authorized by the President.
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42 U.S.C. § 9622(e)(6).2
In essence, Defendant argues that Plaintiffs seek
to hold it liable for damages allegedly resulting
from activities that were consistent with the
Consent Decree, on a theory that Defendant
should have conducted additional or different
remediation. However, Defendant contends that it
would have violated CERCLA § 122(e)(6) had it
engaged in any alternative remedial measures.
Accordingly, Defendant argues that Plaintiffs’
claims directly conflict with CERCLA because it is
impossible for Defendant to comply with federal
law (the Consent Decree and CERCLA § 122(e)(6))
2
Section 122(e)(6) “serve[s] to promote the policy of
environmentally sound and cost effective clean up through
governmental, community and private party input into the
decisionmaking process.” Allied Corp. v. Acme Solvents
Reclaiming, Inc., 691 F. Supp. 1100, 1110 (N.D. Ill. 1988). In
Allied Corp, the court held that a defendant could not argue
that EPA approved its remediation plan by “passive
acquiescence.” See id. The court further stated that,
[i]n by-passing the safeguards of Section 122, passive
acquiescence would serve to undermine this policy.
Surely Congress did not intend under Section
122(e)(6) that, once the EPA initiates a remedial
investigation and feasibility study, PRP’s are free to
undertake their own chosen form of remedy and then
recover costs in federal court under the theory, “the
agency didn’t tell us we couldn’t!” Authorization
under Section 122(e)(6) cannot be proved by a
showing of Agency passive acquiescence.
Id.
Thus, the policy underpinning CERCLA § 122(e)(6) is to
create a careful partnership between the PRP and the
responsible agency to ensure the appropriate remedial action
is taken.
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and also avoid potential exposure to state
common-law claims.
A number of courts have held that consent
decrees entered into pursuant to environmental
laws sufficiently conflict with state law to warrant
preemption. For example, in Feikema v. Texaco,
Inc., 16 F.3d 1408 (4th Cir. 1994), a group of
property owners sued a defendant alleging
nuisance and trespass as a result of the release of
toxic substances on their property. See id. at 1411.
Prior to the plaintiffs’ suit, EPA -- under the
authority of the Resource Conservation and
Recovery Act (“RCRA”) -- entered into a consent
decree whereby the defendant agreed to undertake
a specific clean-up plan. See id. Similar to
Defendant here, the defendant in Feikema,
“argue[d] that homeowners are, through their
state law actions for nuisance and trespass,
seeking injunctive relief that would conflict with
the existing Consent Order between [defendant]
and the EPA.” Id. at 1415. The defendant argued
“further that complying with any court order
based on state law would force [the defendant] to
violate the Consent Order’s requirement that any
corrective action be submitted to and approved by
the EPA.” Id. After holding that the consent
decree carried the same weight as any other
federal law, the Fourth Circuit ultimately held
that the injunctive relief that the plaintiffs
requested “would conflict with the remedial
measures selected and supervised by the EPA.” Id.
at 1416.
In his concurring opinion in Feikema, Judge
Murnaghan stated that, “[b]ecause it apparently
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would be impossible for [the defendant] to comply
with both orders, we hold that, so long as the
(federal-law) Consent Order remains in effect, it
preempts the (state-law) injunctive order that
plaintiffs have requested.” Id. at 1418 (Murnaghan,
J., concurring). Judge Murnaghan further concluded
that the analysis is the same with regard to
damages claims.3 In that vein, he stated that the
court “would not allow the plaintiffs to gain
indirectly, through the threat of monetary
damages, what [the court has] expressly prevented
them from gaining directly through an injunction -mandatory clean-up measures that are incompatible
with those already approved by the EPA.” Id. He
stressed that, whatever the relief sought, a “claim
is preempted only to the extent that it may
actually conflict with the EPA’s Consent Order
and only while that Order remains in effect.” Id.
The Fourth Circuit later addressed Feikema in
Cavallo v. Star Enter., 100 F.3d 1150 (4th Cir.
1996), and held that a PRP “cannot be held liable
for activities in conformity with the EPA Orders.”
Id. at 1156. In doing so, the court recognized that
Feikema allowed the plaintiffs’ damages claims to go
forward but only to the extent, as Judge Murnaghan
alluded to, that they do not conflict with the
Consent Order. See id. The court then determined
that “[d]amages claims conflict with EPA Orders
only if the allegedly tortious activities (1) were
required, directed, or supervised by the EPA, and
3
The majority opinion held that the damages claims
were not preempted because the Consent Order did not provide
for damages payments to homeowners, thus, awarding
damages to the plaintiffs would not conflict with the Consent
Order. See Feikema, 16 F.3d at 1417-18.
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(2) were performed properly.” Id. In discussing the
plaintiffs’ claims in that case, the court advised
that “incidents of improper operation, supervision,
management, design, installation, repair, and
updating of the [waste site or its equipment] may
be actionable if not compelled by the EPA Orders.”
Id. at 1157.
Two district court cases in the Second Circuit
involve somewhat analogous factual situations.
First, in Town of Halfmoon v. Gen. Elec. Co., 105
F. Supp. 3d 202 (N.D.N.Y. 2015), the plaintiffs
sought damages for the defendants’ allegedly
negligent dredging operation that was undertaken
in conformance with a court-ordered Consent
Decree. See id. at 217. The court recognized that
the CERCLA savings clauses may allow for
common law claims that concern the original
hazardous waste deposit, but plaintiffs were
instead attacking “the dredging project and the
environmental and health threats stemming
therefrom.” Id. at 218. The court found that “[i]t is
impossible for [the defendant] to comply with the
requirements of the Consent Decree without
subjecting itself to liability under state statutory
and common law, which is an obstacle to the
execution of the dredging project.” Id. at 217-18.
Ultimately the court concluded that the “plaintiffs’
state law claims interfere with the implementation
of a remedial action ordered by a federal agency
(EPA), per federal law (CERCLA), approved by
this federal court.” Id. at 218. Furthermore, the
court rejected the plaintiffs’ argument that they
only sought monetary damages. See id. (citing
New Mexico, 467 F.3d at 1249-50).
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Similarly, in Coastline Terminals of Conn., Inc.
v. USX Corp., 156 F. Supp. 2d 203 (D. Conn.
2001), the court held that the plaintiffs’ “state law
actions pursuant to [a state statute] and common
law negligence related to hazardous waste releases
disrupt[ed] CERCLA’s settlement incentive
scheme by providing a potential avenue for
recovery against a potentially responsible party
that has settled a CERCLA action.” Id. at 208.
Therefore, the court held that “the state law
claims based on allegations of hazardous waste
releases [were] preempted.” Id. at 209
In addition, in New Mexico, the Tenth Circuit
held that “CERCLA’s comprehensive NRD scheme
preempts any state remedy designed to achieve
something other than the restoration, replacement,
or acquisition of the equivalent of a contaminated
natural resource.” Id. at 1247. The Tenth Circuit
reasoned that allowing the state to by-pass
CERCLA’s statutory scheme to collect NRD damages
based on negligence and nuisance theories would
conflict with CERCLA because it could lead to
double-recovery. See id. at 1248.
The Tenth Circuit went on to dismiss the
plaintiff’s common-law claims arguing that the
site cleanup was inadequate, stating that “[a]ny
relief provided the State would substitute a
federal court’s judgment for the authorized
judgment of both the EPA and NMED (lest we
forget an arm of the State) that the cleanup is not
only comprehensive but flexible and dynamic,
readily adjusting as new data is received.” Id. at
1249-50 (citation omitted). The court further
stated that it would “not permit the State to
achieve indirectly through the threat of monetary
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damages, . . . what it [could not] obtain directly
through mandatory injunctive relief incompatible
with the ongoing CERCLA-mandated remediation.”
Id. at 1250 4 (citing Feikema v. Texaco, Inc., 16
F.3d 1408, 1418-19 (4th Cir. 1994) (Murnaghan,
J., concurring)) (other citations omitted).
Plaintiffs rely on Abbo-Bradley v. City of
Niagara Falls, No. 13-CV-487-JTC, 2013 WL
4505454 (W.D.N.Y. Aug. 22, 2013), for the
proposition that “it is uniformly recognized that,
in enacting CERCLA, Congress expressly disclaimed an intent to preempt state tort liability for
damages caused by the release of hazardous
substances.” Id. at *6. However, that statement
and the case as a whole only addressed express
preemption while considering a district court’s
decision to remand a case back to state court. See
id.
Furthermore, Plaintiffs allege that Vill. of
DePue, Ill. v. Exxon Mobil Corp., 537 F.3d 775
(7th Cir. 2008), “explicitly recognized that
CERCLA contemplates ‘action[s] brought under
State law for personal injury, or property damages,
which are caused or contributed to by exposure to
4
The Tenth Circuit’s discussion cited in this section
addressed a CERCLA jurisdictional requirement, which
provides that “[n]o Federal Court shall have jurisdiction . . .
under State law . . . to review any challenges to removal or
remedial action selected. . . .” 42 U.S.C. § 9613(h). The court
dismissed those claims that challenged aspects of the
selected remedy because the remediation was not completed.
See New Mexico, 467 F.3d at 1250. The court reasoned that,
“§ 9613(h) reflects Congress’s judgment that residual injury,
if any . . . be addressed at the conclusion of the EPA-ordered
remediation.” Id. (citation omitted).
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any hazardous substance, or pollutant or
contaminant, released into the environment from
a facility.’” See Dkt. No. 113 at 11 (quoting DePue,
537 F.3d at 786). However, the text in DePue to
which Plaintiffs refer simply quotes CERCLA’s
savings clause without any analysis. See DePue,
537 F.3d at 786 (quoting 42 U.S.C. § 9658(a)(1)).
Thus, DePue only “recognized” the uncontroversial
reality that CERCLA does not expressly preempt
all state law. The court in DePue declined to
decide whether conflict preemption existed in that
case because the defendant had not shown that
there was any federal law that conflicted with the
plaintiffs’ claims. See id.
Finally, Plaintiffs contend that CERCLA § 302(d)’s
plain language expressly allows their claims.
CERCLA § 302(d) provides that “[n]othing 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.” 42 U.S.C. § 9652(d)
(emphasis added). However, as is clear from the
Second Circuit’s decision in Bedford, as well as
many of the above-cited cases, CERCLA’s Savings
Clause does not contemplate that any and all
common-law claims can go forward. Further, as
Defendant persuasively argues, “[t]he logical
reading of the Savings Clause is that it is intended
to preserve state law claims relating to the
underlying contamination CERCLA was enacted
to address (i.e., the contamination of the sediment
in Onondaga Lake), and not those relating to
remediation activities mandated by a consent
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decree.” See Dkt. No. 115 at 6; accord Town of
Halfmoon, 105 F. Supp. 3d at 217.
Based on the foregoing, several principles
appear. First, state-law claims that create an
actual conflict with CERCLA are preempted.
Second, consent decrees entered into pursuant to
CERCLA, which require a PRP to undertake
specific action or contravene CERCLA § 122(e)(6),
qualify as federal law that can conflict with state
law. Third, preemption may apply if the plaintiffs’
claims merely allege activity that is consistent
with a consent decree, regardless of the damages
that plaintiffs seek, i.e., injunctive relief or
monetary damages. In sum, these principles track
the test the court articulated in Cavallo, that
“[d]amages claims conflict with [a consent decree
and, are thus preempted,] only if the allegedly
tortious activities (1) were required, directed, or
supervised by the EPA, and (2) were performed
properly.” Cavallo, 100 F.3d at 1156. Thus, the
Court adopts these principles to analyze Plaintiffs’
claims.
Plaintiffs assert that
the gravamen of [their] claims are that
[Defendant], through its failure to
perform and use due care in performing
the required APA and other procedures,
as mandated by the Consent Decree,
CERCLA, the NCP, the ECL, and the
DEC-approved Work Plans, and through
its inaccurate representations to the DEC,
the EPA and the public, circumvented the
authority of the DEC and the EPA and
the right of the public to meaningfully
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participate in the remedial decision
making process.
See Dkt. No. 113 at 12.
A closer examination of Plaintiffs’ amended
complaint, however, reveals that each of Plaintiffs’
claims is based exclusively on the premise that
Defendant should have conducted a more robust
cleanup effort than the Consent Decree mandated.
The amended complaint first outlines each of
the individual Plaintiffs’ health and safety
concerns, see Dkt. No. 107 at ¶¶ 3-86, and then
explains in detail the alleged deficiencies in
Defendant’s implementation of the measures
agreed upon in the Consent Decree to manage the
Site (a/k/a “Wastebed 13”).
First, Plaintiffs allege that Defendant’s Community Health and Safety Plan (“CHASP”) “described
the Remedy selection and design as reducing or
eliminating health hazards, including, but not
limited to, use of a closed system, double containment, and geotextile tubes.” See id. at ¶ 106.
However, according to Plaintiffs, Defendant
“negligently and/or falsely represented in its
CHASP” that Wastebed 13 was a “closed system.”
See id. at ¶ 107. Furthermore, Plaintiffs maintain
that Defendant negligently and/or misleadingly
reported that the method selected (pumping dredged
sediments into geotextile tubes) would minimize
the amounts of contaminants that are exposed to
the atmosphere. See id. at ¶ 109. Plaintiffs add that,
“[w]hen the highly contaminated slurry reached
Wastebed 13, it was pumped and dewatered into
and through porous geotextile tubes (or ‘geotubes’).
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The removed water was treated, and the geotubes
were placed in onsite impoundments while they
‘cured,’ sequestering the contaminants (in theory)
until such time the geotubes were dry enough for
the impoundment to be capped.” See id. at ¶ 112.
Furthermore, Plaintiffs allege that an Air Pathways Analysis (“APA”) must be performed at any
Superfund site. See id. at ¶ 114. However, Plaintiffs
maintain that Defendant “ultimately failed to
conduct and/or supervise a complete and proper
[APA] to quantify potential emissions of [compounds of interest (“COIs”)] from the sediment
dewatering system component of the Remediation,
as required under the Consent Decree and
Defendant’s own work plans.” See id. at ¶ 118. In
that vein, Plaintiffs allege that, after Defendant
completed a Phase I bench-scale emissions testing,
which tested the emissions of 21 COIs, it stopped
testing for ten of twenty-one original COIs. See id.
at ¶ 128. According to Plaintiffs, Defendant should
have never discontinued its study because further
testing showed that there was a significant
amount of these COIs in the dredged sediment.
See id. at ¶ 134. Thus, Plaintiffs contend that,
“[a]t the very least, additional bench-scale testing
should have been performed[.]” See id. at ¶ 136.
Furthermore, Plaintiffs allege that “all benchscale testing was discontinued” after Defendant
“decided to eliminate the open basin in lieu of the
geotubes[.]” See id. at ¶ 139.
Moreover, Plaintiffs claim that Defendant
shifted the focus of its studies “from quantifying
and controlling hazardous emissions to controlling/
mitigating ‘odors’ from only those compounds that
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reached detectable odor thresholds.” See id. at ¶ 144.
As a result, Plaintiffs allege that “the potential
release into the air of dangerous chemical
compounds known to be present in the Lake
sediment to be dredged, such as mercury and
hexachlorobenzene, was not even tested.” See id.
at ¶ 145.
Additionally, Plaintiffs assert that Defendant’s
decision to begin using geotubes coincided with its
decision to discontinue further bench-scale
testing. See id. at ¶¶ 150-155. Furthermore,
Plaintiffs allege that Defendant,
[i]n an ill-conceived and failed effort to
prove that its geotube dewatering method
was safe, in May 2010, proposed a risk
assessment method (the “Risk Assessment
Method”) which, instead of relying on
actual measured data, improperly assumed
the existence of contaminant “safe levels”
at the SCA perimeter (assigned previously
by the EPA and DEC), and then assumed
that these safe-level concentrations were
then diluted as the airborne contaminants
were carried to the nearby residential
community where the Plaintiffs lived.
See id. at ¶ 156.
In short, according to Plaintiffs, “once the decision
was made to abandon the open-basin dewatering
system in favor of the geotube system, [Defendant]
abandoned the APA process altogether.” See id. at
¶ 159.
Plaintiffs also contend that Defendant’s Perimeter
Air Monitory System (“PAM”) was “incapable of
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detecting hazardous emissions from Wastebed
13[.]” See id. at ¶ 160. Thus, Plaintiffs assert that
Defendant improperly relied on the results of the
PAM to determine that the emissions levels were
safe. See id. at ¶¶ 161-162.
Plaintiffs additionally allege that Defendant
knew that Wastebed 13 was actively emitting
high-levels of toxic chemicals into the air and
consequently that DEC “ordered (or strongly
suggested to [Defendant])” that the site be shut
down. See id. at ¶ 165. Plaintiffs contend, “upon
information and belief,” that the shut-down was
required because data was showing toxic quantities
of VOCs, mercury, and hydrogen sulfide. See id. at
¶ 166. Plaintiffs further claim that Defendant
subsequently issued its
“Odor Mitigation Plan” which identified
[that] actively filling geotubes as having
the greatest potential for emissions and
recommended supplemental control
measures, including, but not limited, to
a comprehensive and integrated, nonpermeable geotube covering system, wind
screens, reduced water flow to the SCA,
an odor-control additive, large capacity
fans, and an expansion of the misting
system.
See id. at ¶ 225.
However, Plaintiffs maintain that they continued
to experience odor after Defendant implemented
the mitigation strategies. See id. at ¶ 228.
Furthermore, Plaintiffs describe a study, which
the Town of Camillus commissioned, that alleges
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that there were toxic amounts of mercury and
other chemicals in and around Wastebed See id. at
¶¶ 68-73. This study was apparently based on data
received that was part of Defendant’s safety
monitoring for its employees. See id. at ¶ 169.
However, Plaintiffs contend that Defendant never
tested for several of these toxic chemicals in its
PAM monitoring and thus never knew that Plaintiffs
were being exposed to toxic fumes emanating from
Wastebed 13. See generally id. at ¶¶ 168-180.
Moreover, Plaintiffs assert that Defendant
variously misrepresented its cleanup efforts and
falsely assured that
(i) extensive testing had been performed in
order to predict potential emissions, including bench-scale testing, wind-tunnel testing,
flux-chamber testing, odor characterization,
collection of site-specific meteorological data,
and dispersion modeling; (ii) air monitoring
would be conducted during SCA operations to
ensure protection in the event any emissions
levels were exceeded; and (iii) contingency
plans, such as covering the geotubes or
reducing or ceasing dredging operations,
would be implemented to correct the problem,
should it be found that the SCA (Wastebed
13) was generating ‘nuisance’ odors.
See id. at ¶ 195.
In addition, Plaintiffs allege that Defendant
was “negligent, reckless and/or intentionally
misrepresenting” that the geotube system in place
would be a “closed” system. See id. at ¶ 199.
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Next, Plaintiffs contend that Defendant’s risk
assessment method was flawed and that EPA
erroneously concluded that “geotextile dewatering
operations at the SCA would be safe.” See id. at ¶¶
205-208. Further, Plaintiffs argue that the
“number and spacing of monitors comprising the
PAM system were incapable of detecting
contaminant plumes in excess of the safe limits.”
See id. at ¶ 217. Consequently, Plaintiffs allege,
upon information and belief, [Defendant’s]
air monitoring program had grossly
inadequate “sampling densities,” resulting
in the following: (a) it had very little chance
of ever capturing the highest 1-houraveraged concentrations; and (b) it would
require a duration far longer than the
Remediation time-frame itself before
enough data could be collected to facilitate
a reasonable assessment of annual exposure.
See id. at ¶ 221.
In addition, Plaintiffs assert that Defendant never
considered whether emissions could be coming from
“streams of pressurized contaminated water.” See
id. at ¶ 235. Finally, Plaintiffs allege that Defendant
was negligent in performing the remediation in the
following ways: (1) Defendant should have known
that geotubes were not closed systems, see id. at
¶ 244; (2) Defendant should have known that the
hazardous chemicals did not remain in the sediment
but instead were emitted onto Plaintiffs’ properties
from the air pathway and through “aerosolized
spray/vapor,” see id. at ¶¶ 245, 246; and (3)
Defendant “failed to discover that geotubes were not
capable of containing the emissions of the hazardous
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chemicals and thus failed to implement mitigative
measures,” see id. at ¶ 247.5
Based on the above, Plaintiffs alleged three
common-law claims against Defendant: (1)
Defendant failed to employ reasonable care in
implementing and in choosing the various methods
of remediation at Wastebed 13, see id. at ¶¶ 254269; (2) Defendant maintained a dangerous
condition on their property that created a private
nuisance, see id. at ¶¶ 271-274; and (3) Defendant’s
actions “caused toxic chemical particulates, both
visible and invisible, to be released into the air in
the form of vapor and dust which then landed on
Plaintiffs’ real property and persons,” see id. at ¶ 276.
In essence Plaintiffs’ claims are based on the theory
that the EPA- and DEC-approved remediation
plan was inadequate and resulted in their alleged
damages. Specifically, Plaintiffs’ allegations,
which the Court has to accept as true at this stage
of the litigation, amount to an argument that
Defendant should not have used geotubes to
contain the dredged sediment and should have
conducted additional air testing. In other words,
Plaintiffs’ allegations are based on activities that
“were required, directed, or supervised by the
EPA” and DEC. Cavallo, 100 F.3d at 1156.
Furthermore, nothing in Plaintiffs’ Amended
Complaint plausibly alleges that the selected
remedy was not “performed properly.” Id. Although
Plaintiffs make conclusory allegations that
5
Furthermore, Plaintiffs allege that the Site
continues, and will continue, to be a source of hazardous
chemical emissions despite Defendant’s plan to place a
permanent cap over the site. See Dkt. No. 107 at ¶¶ 250-253.
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Defendant negligently performed its remediation
duties, all of the factual allegations that form the
basis for Plaintiffs’ claims relate to actions that
were clearly contemplated in the Consent Decree.6
In other words, Plaintiffs fail to allege facts that
plausibly give rise to an inference that Defendant
executed the Consent Decree negligently; rather,
at best, they merely assert that the chosen remedy
was inadequate. Similarly, Plaintiffs’ nuisance and
trespass claims simply allege damages based on
actions that were consistent with the Consent
Decree.
Thus, Plaintiffs are attempting to hold
Defendant liable for activities consistent with the
Consent Decree on the theory that Defendant
should have conducted additional remediation
that would have violated CERCLA § 122(e)(6).
Accordingly, the Court finds that Plaintiffs’ claims
conflict with CERCLA and the Consent Decree
and are, therefore, preempted. Thus, the Court
grants Defendant’s motion to dismiss.7
6
In its amicus brief to this Court filed in support of
Defendant’s original motion to dismiss, the State of New
York represented that Defendant had complied with the
Consent Decree. See generally Dkt. No. 31.
7
At the end of their memorandum of law in opposition
to Defendant’s motion to dismiss, Plaintiffs state that, “[i]n
the event the Court determines any portion of the Amended
Complaint to be legally insufficient, Plaintiffs request leave
to amend their Amended Complaint, pursuant to Fed. R. Civ.
P. 15. Plaintiffs should be given the opportunity to replead.”
See Dkt. No. 113 at 25. To the extent that Plaintiffs intended
this discussion to serve as a motion for leave to amend their
amended complaint, it does not comply with this Court’s
Local Rules regarding such motions; and, therefore, the
Court will not consider it. See L. R. 7.1(a)(4).
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IV. CONCLUSION
Having reviewed the entire file in this matter,
the parties’ submissions, and the applicable law,
and for the above-stated reasons, the Court hereby
ORDERS that Defendant’s motion to dismiss,
see Dkt. No. 109, is GRANTED; and the Court
further
ORDERS that the Clerk of the Court shall
enter judgment in favor of Defendant and close
this case.
IT IS SO ORDERED.
Dated: May 19, 2017
Syracuse, New York
/s/
Frederick J. Scullin, Jr.
Senior United States District Judge
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