448 F.3d 138 (2nd Cir. 2006), 04-4865, Building and Const. Trades Council of Buffalo, New York and Vicinity v. Downtown Development, Inc.

Docket Nº:04-4865-CV.
Citation:448 F.3d 138
Party Name:BUILDING AND CONSTRUCTION TRADES COUNCIL OF BUFFALO, NEW YORK AND VICINITY, Plaintiff-Appellant, v. DOWNTOWN DEVELOPMENT, Inc., Erie County Industrial Development Agency, and Krog Corporation, Defendants-Appellees, City of Buffalo, New York, Defendant.
Case Date:May 05, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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448 F.3d 138 (2nd Cir. 2006)

BUILDING AND CONSTRUCTION TRADES COUNCIL OF BUFFALO, NEW YORK AND VICINITY, Plaintiff-Appellant,

v.

DOWNTOWN DEVELOPMENT, Inc., Erie County Industrial Development Agency, and Krog Corporation, Defendants-Appellees,

City of Buffalo, New York, Defendant.

No. 04-4865-CV.

United States Court of Appeals, Second Circuit.

May 5, 2006

Argued: Nov. 28, 2005.

Final Submission: April 19, 2006.

Appeal from a decision and order of the United States District Court for the Western District of New York (John T. Elfvin, Judge) dismissing the plaintiff's claims for violations of the Resource Conservation and Recovery Act and the Clean Water Act for lack of standing.

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David J. Seeger, Buffalo, NY, for Plaintiff-Appellant.

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Craig A. Slater, Harter, Secrest & Emery LLP, Buffalo, NY, for Defendant-Appellee Downtown Development, Inc.

Joseph D. Picciotti, Harris Beach LLP, (Laura W. Smalley, of counsel), Pittsford, NY, for Defendant-Appellee Krog Corporation.

Andrea Schillaci, Hurwitz & Fine, P.C., Buffalo, NY, for Defendant-Appellee Erie County Industrial Development Agency.

Before: McLAUGHLIN and SACK, Circuit Judges, and KOELTL, District Judge. [*]

SACK, Circuit Judge.

This appeal primarily concerns standing under Article III of the Constitution and interpretation of the pre-suit requirements of the Resource Conservation and Recovery Act.

The plaintiff-appellant Building and Construction Trades Council of Buffalo, New York and Vicinity (the "Trades Council") appeals from a judgment of the United States District Court for the Western District of New York (John T. Elfvin, Judge) dismissing all claims against the defendants-appellees for lack of standing. The Trades Council, a labor organization affiliated with the AFL-CIO, brought suit against various defendants alleging violations of the Resource Conservation and Recovery Act and the Clean Water Act, based on activities the defendants allegedly undertook in connection with the redevelopment of a 113-acre parcel of land adjacent to the Union Ship Canal in western New York State.

The defendants moved to dismiss all claims against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court decided that the Trades Council had failed to establish its standing, under Article III of the Constitution, to bring the suit in federal court, because it did not allege sufficient injury in fact on behalf of its members, and because the interests at stake in the litigation were not germane to the Trades Council's organizational purpose. The district court also concluded that, in any event, the Trades Council lacked standing to assert its Clean Water Act claim because the alleged violation upon which the claim was premised had been rectified by the time the Trades Council filed its amended complaint. The court therefore dismissed all of the Trades Council's claims and entered judgment for the defendants.

We conclude that the Trades Council sufficiently alleged the requirements of Article III standing, but we also conclude that the Trades Council failed to comply with certain pre-suit notice provisions of the Resource Conservation and Recovery Act and the Clean Water Act. We therefore vacate the district court's judgment and remand to the district court with instructions to dismiss the complaint without prejudice.

BACKGROUND

The "Hanna Furnace site" is a 113-acre "brownfield"1 surrounding a portion of the Union Ship Canal in western New York State. Starting in 1998, the City of Buffalo sought to redevelop the site for mixed use, including light industry and public recreation. During the time period relevant

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to this appeal, there was one significant construction project underway at the Hanna Furnace site -- a project undertaken by The Krog Corporation, a general contractor and construction management firm, for use by the CertainTeed Corporation. Development of this area, known as "the CertainTeed site," allegedly entailed, among other things, the excavation, removal, and redepositing of soils contaminated by lead, mercury, arsenic, and other toxic substances.

Proceedings in the District Court

On April 23, 2004, the Trades Council, a professional labor organization affiliated with the AFL-CIO, brought suit in the United States District Court for the Western District of New York against Downtown Development, Inc. ("DDI"), Erie County Industrial Development Agency ("ECIDA"), The Krog Corporation, and the City of Buffalo, invoking the court's federal question jurisdiction. In its complaint, the Trades Council asserted three causes of action arising out of alleged activities at the Hanna Furnace site: (1) a violation of the Resource Conservation and Recovery Act ("RCRA") brought under 42 U.S.C. § 6972(a)(1)(B), premised on the alleged disposal of solid and hazardous waste contaminating groundwater, surface waters, soil, residences, and air;(2) a violation of RCRA, 42 U.S.C. § 6945, based on the alleged open dumping of solid waste into waters of the United States; and (3) a violation of the Clean Water Act, 33 U.S.C. §§ 1311 & 1342, premised on the alleged discharge of polluted water without a permit.

In May 2004, the defendants moved to dismiss all the plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing, inter alia, that the Trades Council lacked standing to bring the suit in federal court under Article III of the Constitution.

On July 2, 2004, the Trades Council filed an amended complaint that asserted the same three causes of action and added further allegations relevant to the standing issue. The Trades Council alleged, inter alia, that some of its members had worked at the CertainTeed site, and had been exposed to contaminated soil and waste materials while working there. The Trades Council also alleged that: (1) many of its members reside and work near the Hanna Furnace site; (2) many of its members drink water from public water supplies drawn from Lake Erie that are being polluted by water migrating through the Hanna Furnace Site; and (3) many of its members use Lake Erie and the area surrounding the Hanna Furnace Site for recreation and enjoy the aesthetic value of the area.

On July 23, 2004, after the City of Buffalo was dismissed as a defendant with the consent of the Trades Council, and after further briefing, the district court, in a brief order, stated that the defendants' motions to dismiss were moot. Bldg. & Constr. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., No. 04-CV-0318E(F), slip op. at 1 (W.D.N.Y. July 23, 2004). The court then concluded that the Trades Council's amended complaint failed to allege facts which, if proven, would establish standing for the plaintiff to bring the lawsuit in federal court under Article III of the Constitution. See id. at 3-4. The court reasoned that the Trades Council had failed to allege sufficient injury in fact on behalf of individual members for standing purposes and that the interests at stake in the litigation were not germane to the Trades Council's purposes as an organization. See id. The district court also ruled that, in any event, the Trades Council lacked standing to bring its Clean Water Act claim because the alleged violation upon which the claim was based

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had been rectified by the time the Trades Council filed its amended complaint. Id. at 4.

The Trades Council appeals.

DISCUSSION

I. Standard of Review

"Because 'standing is challenged on the basis of the pleadings, we accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.' " Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 114 (2d Cir.) (quoting United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998)), cert. denied, 537 U.S. 878, 123 S.Ct. 77, 154 L.Ed.2d 133 (2002). On appeal from a judgment entered pursuant to Federal Rule of Civil Procedure 12(b)(1), we review conclusions of law de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

II. Associational Standing

The Trades Council has standing as an association to bring suit in its own name on behalf of its members if: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see also N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 325 (2d Cir. 2003).

A. Individual Standing of Trades Council Members

The first requirement for associational standing, then, is that the members "have standing to sue in their own right." To establish individual standing, a plaintiff must show that: "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also N.Y. Pub. Interest Research Group, 321 F.3d at 325. The defendants do not dispute that the amended complaint adequately alleges "traceability" and "redressability." They argue only that the Trades Council has not sufficiently alleged "injury in fact" on behalf of some or all of its members.

1. Failure of the Complaint To Set Forth...

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