CAMILLUS CLEAN AIR COALITION; ROBERT and COLLEEN BARTLETT; WILLIAM and MICHELLE BARRINGTON, III; KIM CALVERASE; DANIEL and VERUSKA DANTUONO; DAVID and JULIETTE DEDO; TIMOTHY and SALLY DELANY; BRIAN and TRACY DELLOW; RON GRYZIEC; BRENDA CARPENTER; DOUGLAS and CHARLENE HART; THOMAS and KIMBERLY KSHYNA; MATTHEW and TRACY LICAMELI; JOHN and KATHLEEN MARINELLI; WILLIAM and STEPHANIE MATHEWSON; PETER and JENAFER MEDINA; BRYAN MIGNONE; ELAINE EVERITT; BRIAN and KIMBERLY MURPHY; SCOTT and JILL MUSEMECI; JERRY and KRISTINA PARZYCH; JONATHAN and MARGARET PATCH; TIMOTHY and SHARON PIEPER; FREDERICK and HEATHER PUCHTA; LYNORE and MARK de la ROSA; ROBERT and LORI SMITH; JOEY ST. LOUIS; ROBERT and MEGAN VERTUCCI; and MICHAEL and LYNDA WADE, Plaintiffs,
HONEYWELL INTERNATIONAL, INC., Defendant.
CMCCALLION & ASSOCIATES, LLP, KENNETH F. MCCALLION, ESQ., New York, New York, Attorneys for Plaintiffs.
GILBERTI STINZIANO HEINTZ & SMITH ANTHONY P. RIVIZZIGNO, ESQ., MICHAEL A. FOGEL, ESQ., Syracuse, New York, Attorneys for Defendant.
ARNOLD & PORTER LLP, BRIAN D. ISRAEL, ESQ., CHRISTOPHER A. JAROS, ESQ., GEOFFREY J. MICHAEL, ESQ., ANDREA MASSELLI, ESQ., Washington, D.C., Attorneys for Defendant.
OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL ANDREW J. GERSHON, AAG, New York, New York 10271, Attorneys for Amicus Curia.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., Senior District Judge.
Currently before the Court are Defendant's motion to dismiss Plaintiffs' claims for injunctive relief pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure and Plaintiffs' motion for a preliminary injunction. The Court held a hearing with respect to these motions on May 15, 2013. At the conclusion of that hearing, the Court rendered an oral decision and advised counsel that the Court would issue a written decision setting forth its reasoning. The following constitutes the Court's written disposition of the pending motions.
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.
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 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 sediments 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, 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 the complaint in this action in the Supreme Court of the State of New York, 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. See Dkt. No. 1-1. In addition to ...