The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court Buffalo, New York
Plaintiffs, residents of the Village of Middleport, Niagara County, New York, commenced this citizen suit on April 30, 2004, asserting claims under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901 et seq., the Clean Water Act (CWA), 33 U.S.C. §§ 1251, et seq., and the common law of the State of New York. They seek injunctive relief, damages, and the imposition of civil penalties against Defendant FMC Corporation for its alleged violations of federal environmental law on real property located in the Village of Middleport.
Presently before the Court is FMC's Motion to Preclude Plaintiffs' Expert and for Summary Judgment. (Docket No. 85.)*fn1 Plaintiffs oppose the motion.*fn2 For the reasons stated below, FMC's motion is granted in its entirety.
It is noted at the outset that Plaintiffs did not file the requisite response to FMC's Local Rule 56.1 statement of undisputed facts. Thus, unless FMC's stated facts are unsupported, they are deemed admitted. The facts below are taken from the pleadings, to the extent they are in agreement, and from FMC's Rule 56.1 statement and supporting documents.
1. The Site and Surrounding Areas
FMC owns and operates a pesticide formulations facility (the Facility) situated on approximately 91 acres in Middleport, New York. The northern portion of the Facility (comprising approximately 52 acres) was used for the manufacture and/or formulation of pesticide products beginning in the 1920s.*fn3 (Docket No. 8, Ex. 3 at 030112, 030131.) As a result of pre-1974 waste handling practices, soils and groundwater in the northern half of the Facility were extensively contaminated. (Id. at 030065.) Investigations have identified 54 solid waste management units (SWMUs) at the Facility. (Docket Nos. 1 ¶ 27;4 ¶ 27*fn4 ; 84 Ex. 3 at 030121-22, 030390-91.) Of particular concern in this litigation is the potential migration of, and harm from, arsenic present at the Facility.
Situated on the northern half of the Facility are, among other things, buildings used for formulating and storing pesticides, a water treatment plant and associated holding tanks, a western surface impoundment area, a former central surface impoundment area, and an eastern surface impoundment area. (Id. at 030112, 030531.)
Adjacent to the Facility's northern boundary is a former Conrail right-of-way, running in an east-west direction, which FMC acquired in or about 2000. (Id. at 030531; and Pldgs. ¶ 131.) There are ditches on each side of the railroad bed and tracks-the "North Ditch" and the "South Ditch"-which together are referred to as the "Northern Ditches." (Pldgs. ¶ 132.) The Royalton-Hartland (Roy-Hart) Junior Senior High School and Elementary School are located to the north and northeast of the Facility, immediately north of the former Conrail right-of-way. (Docket No. 84, Ex. 3 at 030111.) To the west of Roy-Hart, and also immediately north of the former Conrail right-of-way, are eight separately owned parcels of land which together comprise the "Area 2 North Commercial Area." (Docket Nos. 1 ¶ 89; 91 ¶¶ 3-8.) Residential properties are adjacent to the Facility's western boundary. (Id.)
2. The Administrative Order on Consent
In 1991, the United States Environmental Protection Agency (EPA), the New York State Department of Environmental Conservation (DEC),*fn5 and FMC entered into an Administrative Order on Consent (AOC) pursuant to Section 3008(h) of RCRA and Section 71-2727(3) of the New York State Environmental Conservation Law (ECL). (Docket No. 4, Ex. B (the AOC).) The purpose of the AOC is "to protect human health and the environment from releases of hazardous waste . . . and hazardous constituents . . . at or from [FMC's] Facility" in Middleport, New York, and it "requires, at a minimum, Interim Corrective Measures, and the performance by [FMC] of a RCRA Facility Investigation (RFI), to determine fully the nature and extent of any release(s) of hazardous waste and/or hazardous constituents from the Facility into the environment and to gather necessary data to support the Corrective Measures Study, if one is deemed necessary." (AOC at 5.) In addition, the AOC requires the development and implementation of a groundwater monitoring program. It provides for use of the western surface impoundment as an interim corrective measure and postpones closure of the eastern and western surface impoundments pending completion of the RFI and, if necessary, the CMS. (AOC at 6.)
In or about January 1999, the EPA accepted an RFI prepared by consultants for FMC, the stated objectives of which were to determine the nature and extent of releases of hazardous wastes or hazardous constituents from regulated units, SWMUs, and other source areas at the Facility and to gather all necessary data to support the Corrective Measures Study, if one is determined to be necessary. (Pldgs. ¶¶ 56-57.)
3. Relevant Remediation Activities and Status
FMC has performed and/or contracted for a number of studies and remedial actions under the AOC. What follows is not a complete discussion of those activities. Rather, the focus is on the particular properties and areas referenced in the Complaint.
a. The Three Surface Impoundments
In 1985, DEC notified FMC that the Facility's three surface impoundment areas were considered RCRA-regulated hazardous waste management units. (Docket Nos. 84, Ex. 3 at 030178-79; 90 ¶ 15.) In 1986, FMC submitted to the DEC a plan of closure for the three impoundment areas, which now are covered by the corrective action program being performed pursuant to the 1991 AOC. (Id.)
The western surface impoundment (SWMU #4) was closed as a hazardous waste management unit in 1988, and retrofitted for use as a surface water management impoundment. (Docket No. 84, Ex. E at 030179-81.) The AOC now provides for continued use of the retrofitted western impoundment as an interim corrective measure (ICM) for the collection and storage of stormwater runoff from the northern portion of the Facility. (Id. at 030180; AOC § VI(6)(j).)
The central surface impoundment (SWMU #49) was closed as a hazardous waste management unit in 1989 by excavating contaminated soil, replacing it with clean fill, and constructing a low permeability cover which is maintained as part of a site cover operation and maintenance program. (Docket Nos. 84, Ex. 3 at 030181-83; 90 ¶ 16.)
FMC ceased using the eastern surface impoundment (SWMU #50) as a surface water management unit in 1987. The Agencies approved the use of the eastern impoundment area for the temporary management of contaminated soils generated from off-Facility ICMs. (Id. Ex. 3 at 030183; Ex. 4 at 28-29.) As of August 16, 2007, FMC and the Agencies were discussing whether the eastern impoundment should be designated as a corrective action management unit (CAMU), which is a specially designated area used for the long-term management of corrective action waste generated by other parts of the project. (Docket No. 90 ¶ 16.)
Final status of the impoundment areas will be determined through the AOC and any CMS performed. (Id.) FMC has complied with the financial assurance requirements applicable to the estimated closure and post-closure care of the three impoundment areas, and the DEC has accepted FMC's financial assurance mechanism. (Id. ¶17.)
In 1996, the bleacher area of the Roy-Hart school property was remediated by removing soil to a depth of approximately 2 feet. (Docket No. 84, ex. 4 at 125.) The Roy-Hart football field, track, and school bus garage areas were remediated between June 1999 and September 2000 by removing soil from a depth of .5 feet to 14 feet and constructing new athletic fields. (Docket No. 84, Ex. 3 at 032955, 032962.) In total, soil was removed from approximately 8.5 acres. (Docket No. 84, Ex. 17 at GE0007234-36.)
By letter to the Roy-Hart Superintendent of Schools dated May 26, 2000, the DEC, on behalf of itself, the EPA, and the New York State Department of Health (DOH), advised that "the entire school yard is suitable for both athletic and non-athletic uses by all school children in terms of their exposure to known schoolyard soil arsenic levels." (Docket No. 162-4 at 5-6 (emphasis in original).) In response to an inquiry from Plaintiffs' counsel, the Agencies, in October 2005, restated their May 2000 assessment and advised that no new information had been received that would cause the agencies to alter the prior risk assessment. (Docket No. 84, Ex. 17 at GE0007234-36.) By letter to the Roy-Hart School Board, dated November 3, 2009, the agencies again advised that they "continue to stand by that original [May 2000] determination, and we have no new information that would cause us to alter it with respect to the school children's exposure to school yard soil arsenic levels." (Docket No. 162-4 at 1-2.)
However, the agencies went on to note that certain soil samples taken from the unremediated portions of school property exceed the 20 parts per million (ppm) arsenic background level expected in Middleport soils absent a contamination source. (Id. at 2.) For that reason, the school property will be included in FMC's CMS. The CMS will evaluate what, if any, unremediated areas will require corrective measures and the type of corrective measures FMC will be required to perform. (Id.)
When this action was commenced, stormwater from the North Ditch and the eastern portion of the South Ditch flowed into Culvert 105, which drains into Tributary One of Jeddo Creek, then into Jeddo Creek, a perenially flowing stream which joins Johnson Creek. Johnson Creek, in turn, drains to Lake Ontario. (Id. ¶¶ 101, 120, 132, 156.)
The area designated as the Northern Ditches was fully remediated in 2005 as an interim corrective measure pursuant to the AOC, with the Agencies' oversight. (Docket Nos. 84, Ex. 24 at 2-2 to 2-4; 90 ¶¶ 4-5.) As a result, contaminants historically associated with conditions along the Northern Ditches' banks and in its sediments have been removed and/or covered under an engineered cover system, and permanent erosion and sediment control structures were installed. (Docket Nos. 84, Ex.4 at 36; 90 ¶ 5.) Since completion, no surface water originating on the Facility flows to the Northern Ditches. (Docket No. 90 ¶ 5.) d. Stormwater Stormwater from the northern portion of the Facility is funneled to the western surface impoundment via a drainage swale system. (Id.) FMC has a State Pollutant Discharge Elimination System (SPDES) Permit for its Middleport Facility. (Pldgs. ¶ 163.) Stormwater collected in the western impoundment is treated and discharged to Tributary One via a point source discharge pursuant to the Facility's SPEDES permit. (Id. ¶ 154; Docket No. 84, Ex. 3 at 030113, 030147.) From time to time, SPEDES permit exceedances have occurred due to overflows from the western surface impoundment during particularly heavy rainfall or snow melt events. (Docket No. 90, ¶¶12-14.) FMC began upgrading its treatment plant in 2007 to, among other things, maximize flow rate and operational efficiency. The upgrades were nearing completion as of July 2009. (Docket No. 162-2 at 2.)
e. Residential Properties
In 2003, an interim corrective measure was taken with regard to 14 residential properties immediately to the west of the Facility which resulted in the excavation of approximately 15,000 cubic yards of soil. (Docket No. 84, Ex. 4 at 31, 37.) Ten of the properties are adjacent to the western boundary of the Facility's northern half, and four are located immediately west of those adjacent properties, between Main Street and So. Vernon Street. (Id. at 55 and Appdx. D at 22-23.) The ICM also included a right-of-way along So. Vernon Street and a 10 foot buffer area east of the remediated So. Vernon Street properties. (Id.) A former outfall sewer line, which had carried treated water from the Facility to Tributary One, also was removed. (Id. at 55-56.)
Plaintiffs' properties are located to the west of the Facility, but are not within the geographic area covered by the 2003 ICM. (Id. at 8, 51.).
On August 6, 2007, early action remedial work began on the parcel of land at the easternmost end of Area 2, pursuant to a work plan approved by the Agencies. (Docket No. 90 ¶¶ 6-8.) As of August 16, 2007, FMC and the Agencies remained in discussions regarding appropriate corrective actions to be taken on the remainder of Area 2, with work expected to begin in or after the Summer of 2008. (Id. ¶9.)
Plaintiffs commenced this action on April 30, 2004, asserting the following nine claims: (1) contamination from FMC presents an imminent and substantial endangerment to human health and the environment, (2) FMC is violating DEC regulations with regard to its three surface impoundment areas and such violations constitute open dumping prohibited by RCRA, (3) FMC is disposing of solid waste within "Area 2" and the "Northern Ditches" in violation of RCRA's open dumping prohibition, (4) FMC is allowing and has allowed the discharge of polluted storm waters from Area 2 and the Northern Ditches into waters of the United States in violation of the CWA, (5) FMC's discharge of polluted storm waters from the Northern Ditches has occurred without a permit in violation of the CWA, (6) FMC has exceeded the effluent limitation for arsenic established in its SPDES permit in violation of the CWA, (7) contaminants migrating from FMC onto Plaintiffs' real property interfere with their reasonable use and enjoyment, thereby constituting a private nuisance, (8) contaminants migrating from FMC into overburden and groundwater threaten the health of humans, animals and wildlife, thereby constituting a public nuisance, and (9) Plaintiffs have sustained personal injuries, and the value of their real and personal property has been diminished, due to FMC's contamination and other acts and omissions.
FMC retained four experts in connection with this lawsuit:
* Dr. Neil Ram obtained his Ph.D in environmental engineering in 1979, and has been retained to provide opinions on (a) the adequacy and timeliness of responsive actions taken by FMC at its Middleport Facility, (b) the opinions proferred by Plaintiffs' expert, and (c) FMC's alleged violations of its SPDES permit for discharges to Tributary One (Docket No. 86, ¶¶ 1, 7)
* Dr. Rosalind Schoof obtained her Ph.D. in toxicology in 1982, and has been retained to provide opinions concerning Plaintiffs' allegations of adverse health effects resulting from releases of arsenic and other chemicals from FMC's Middleport Facility (Docket No. 87, ¶¶ 1,3)
* Dr. Teresa S. Bowers obtained her Ph.D. in geochemistry in 1982, and has been retained to provide opinions on the typical background levels of arsenic in soil, and to compare site contamination with background levels (Docket No. 88, ¶¶ 1, 3)
* James R. Bird, a residential real estate appraiser certified in the State of New York, has been retained to conduct appraisals and prepare reports relative to the market values of four properties in Middleport owned by certain plaintiffs (Docket No. 89, ¶¶ 1,3).
Plaintiffs retained one expert: * Dr. Dharmarajan R. Iyer obtained his Ph.D. in civil and environmental engineering in 1984, and has been retained to provide "fact and opinion testimony on various facets of this litigation" (Docket No. 134, ¶¶ 1, 3).
Relying on, inter alia, declarations and reports from its experts, FMC seeks an order precluding Dr. Iyer's testimony and granting summary judgment dismissing this action in its entirety. In opposition, Plaintiffs submitted a declaration from Dr. Iyer relative to his expertise and opinions, and a memorandum responding to certain of FMC's arguments.
Both sides have filed supplemental briefing, as well. The preclusion issue will be considered first.
In connection with this litigation, Dr. Iyer has prepared: (1) a memorandum dated October 31, 2006, regarding "Soil/Groundwater Sampling at 44. S. Vernon Road, Middleport, NY" (the S. Vernon Memo), (2) a written report under Fed. R. Civ. P. 26, dated January 31, 2007 (the 2007 Report), (3) a memorandum dated March 31, 2007, regarding "Review of SPDES Discharge Monitoring Reports" (the SPDES Memo) (4) a memorandum dated March 31, 2007, regarding "FMC's Spring 2006 Downstream Sediment Sampling Data" (the Sediment Memo) and (5) a memorandum dated March 31, 2007, regarding "Chronology of FMC's Remedial Activities and Expected Cleanup Duration" (the Cleanup Memo).*fn6 (Docket No. 84, Exs. 11-15.) Dr. Iyer was deposed and has filed a responding declaration. (Id. Ex. 16; Docket No. 134).
FMC has moved to preclude Dr. Iyer's testimony, memoranda, and report from consideration under the Daubert*fn7 line of cases on the grounds that: (1) he is not qualified to offer expert testimony in this case, (2) his submissions do not meet the threshold requirements set forth in the Federal Rules of Civil Procedure, and (3) his stated opinions rest on factual errors, unsubstantiated generalizations, speculative hypotheses, and subjective evaluations that render the opinions unreliable. FMC does not address every opinion advanced by Dr. Iyer, but argues that the totality of the deficiencies it identifies invalidates his opinions in their entirety. Plaintiffs have responded with Dr. Iyer's declaration dated January 28, 2008.
Under Rule 26(a)(2)(B) of the Federal Ruled of Civil Procedure, an expert's written report must contain, among other things: "(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; [and] (iii) any exhibits that will be used to summarize or support them." FED. R. CIV. P. 26(A)(2)(B); see Major v. Astrazeneca, Inc., NO. 5:01-CV-618, 2006 U.S. Dist. LEXIS 65225, at *9 (N.D.N.Y. Sept. 13, 2006). Parties have a duty to supplement their Rule 26(a) ...