United States District Court, N.D. New York
ROBERT and COLLEEN BARTLETT; WLLIAM and MICHELLE BARRINGTON, III; KIM CALVERASE; DANIEL and VERUSKA DANTUONO; DAVID and JULIETTE DEDO; TIMOTHY and SALLY DELANY; BRIAN and TRACY DELLOW; RON GRYZLEC; 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; MICHAEL and LYNDA WADE; DAVID CORRENTE; GARY CORRENTE; LUCY CORRENTE; SARAH MARTINELLI; DEBORAH ROSS, individually and as the representative of the Estate of Edward Wilbur; THOMAS and KIMBERLY GDULA; MICHAEL and ALPHA KSHYNA; and MCKENZIE YOST, Plaintiffs,
HONEYWELL INTERNATIONAL, INC., Defendant.
MCALLION & ASSOCIATES, LLP Attorneys for Plaintiffs
ADVOCATES, P.C. Attorneys for Plaintiffs
& PORTER KAYE SCHOLER Attorneys for Defendant
GILBERTI, STINZIANO, & SMITH, P.C. Attorneys for
OF LISA DIPOALA HABER Attorneys for Defendant
KENNETH F. MCCALLION, ESQ., KRISTIAN K. LARSEN, ESQ., ANDREA
M. BROACH, ESQ., BRIAN D. ISRAEL, ESQ., GEOFFREY J. MICHAEL,
ESQ., ANTHONY P. RIVIZZIGNO, ESQ., LISA A. DIPOALA HABER,
MEMORANDUM-DECISION AND ORDER
Frederick J. Scullin, Jr. Senior United States District
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.
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.
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
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.
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
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."
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
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."
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.
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.
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).
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,
which Plaintiffs thereafter filed on April 13, 2015.
See Dkt. No. 107.
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.
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.
Standard of review
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 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
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)
case, the Court has considered Plaintiff's amended
complaint as well as the documents appended to the complaint.
The parties' positions
argues that Plaintiffs' amended complaint alleges that
"certain choices in designing and implementing the
Onondaga Lake remediation 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. §
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 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 decision-making process." See Id.
(citing United States v. Drum Serv. Co. of Fla., 109
F.Supp.2d 1348, 1357-59 (M.D. Fla. 1999)).
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.
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 ...