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Bartlett v. Honeywell International, Inc.

United States District Court, N.D. New York

May 19, 2017

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,
v.
HONEYWELL INTERNATIONAL, INC., Defendant.

          MCALLION & ASSOCIATES, LLP Attorneys for Plaintiffs

          LARSEN ADVOCATES, P.C. Attorneys for Plaintiffs

          ARNOLD & PORTER KAYE SCHOLER Attorneys for Defendant

          GILBERTI, STINZIANO, & SMITH, P.C. Attorneys for Defendant

          OFFICE 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, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Frederick J. Scullin, Jr. Senior United States District Judge.

         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. BACKGROUND[1]

         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 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 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 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, 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 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 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 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)).

         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 ...


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