Abbo-Bradley v. City of Niagara Falls

• Decision Date: 21 August 2013
• Parties: JOANN ABBO-BRADLEY, et al., Plaintiffs, v. CITY OF NIAGARA FALLS, et al., Defendants.
• Court: U.S. District Court — Western District of New York

JOANN ABBO-BRADLEY, et al., Plaintiffs, v. CITY OF NIAGARA FALLS, et al., Defendants.

13-CV-487-JTC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: August 21, 2013

In this action, three families who own homes and reside in the vicinity of the Love Canal Landfill (the "Landfill") in the City of Niagara Falls, New York, have sued several municipal and corporate entities for damages and equitable relief based on personal injury and property damage allegedly caused by releases of toxic chemicals from the Landfill. See Item 1-1 (First Amended Complaint). The case was originally filed in New York State Supreme Court, Niagara County, on April 10, 2012, and was removed to this court on May 8, 2013, pursuant to 28 U.S.C. §§ 1331 and 1441, upon entry of a Notice of Removal consented to by all defendants, on the basis of original federal jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. Item 1. Plaintiffs then moved pursuant to 28 U.S.C. § 1447(c) to remand the case to state court for lack of subject matter jurisdiction, and for an award of attorneys' fees incurred as a result of improper removal. Item 61.

For the reasons that follow, plaintiffs' motion for remand is granted. The request for attorneys' fees is denied.

BACKGROUND

The original complaint in this action was brought against the City of Niagara Falls ("City"), the Niagara Falls Water Board ("NFWB"), Glenn Springs Holdings, Inc. ("GSH"), and Conestoga-Rovers & Associates, Inc. ("CRA"),¹ seeking damages and equitable relief based upon an alleged "sudden and accidental" discharge of hazardous chemicals, including " 'signature' contaminants that can be directly linked to the Love Canal Superfund Site," during an excavation of underground sanitary sewer pipe in the area of Colvin Boulevard and 96^th Street on January 11, 2011. See Item 3-5, ¶ 13. The complaint, consisting of 15 pages containing 52 numbered paragraphs, set forth six causes of action based on common law negligence, abnormally dangerous activity, nuisance, and trespass, seeking "compensatory and punitive damages for personal injuries, lost quality of life, economic losses, and property value diminution, as well as equitable relief to remediate the contamination of their properties and establish a medical monitoring trust fund on their behalf ...." Id. at ¶ 1.

On March 26, 2013, upon retention of new counsel, plaintiffs were granted leave by the state court to file a First Amended Complaint, consisting of 45 pages and 237 numbered paragraphs. See Item 1-1. As a result, the scope of the litigation was significantly expanded to encompass ten causes of action setting forth claims against the Occidental Chemical Corporation ("OCC"), Miller Springs Remediation Management, Inc.("MSRM"), GSH (referred to collectively as the "Occidental Defendants"),² CRA,³ the City, Sevenson Environmental Services, Inc. ("Sevenson"), and CECOS International, Inc. ("CECOS") for negligent design, implementation, operation, and maintenance of the remediation and containment system at the Landfill (see id. at ¶¶ 77-113); claims against the NFWB, Op-Tech Environmental Services, Inc. ("Op-Tech"), Scott Lawn Yard, Inc. ("Scott Lawn"), Roy's Plumbing, Inc. ("Roy's Plumbing"), Gross PHC, Inc. ("Gross"), and Kandey Company, Inc. ("Kandey"), for negligent performance of the "Sewer Remediation Program" which allegedly caused the January 11, 2011 discharge of hazardous substances that was the focus of the original complaint (see id. at ¶¶ 114-133); and reiterating the demand for compensatory damages, punitive damages, and "equitable relief in the form of complete remediation of the contamination within, around, and under [plaintiffs'] properties ...." Id. at ¶ 6.

Defendants then removed the case to this court on the ground that the claims as pleaded present controversies arising under CERCLA, over which federal courts have "exclusive original jurisdiction." 42 U.S.C. § 9613(b). According to defendants, by demanding equitable relief in the form of an "abatement order" as a remedy for nuisance and trespass (see Item 1-1, ¶¶ 184, 188, 208, 212), plaintiffs have directly challenged the sufficiency and effectiveness of the remediation at the Landfill that was implemented-and continues to be operated, maintained and monitored-pursuant to a series of ConsentDecrees/Judgments entered between OCC, the United States Environmental Protection Agency ("USEPA") and the New York State Department of Environmental Conservation ("NYSDEC"), approved by this court as a component of the prior litigation in U.S. v. Hooker Chemicals & Plastics Corp., No. 79-CV-990C.

The history of the Hooker litigation is well known, and will not be recounted in great detail here. Suffice it to say for present purposes that the Hooker case was brought in this court in December 1979 by the United States (on behalf of USEPA), joined later by the State of New York (on behalf of NYSDEC), against Hooker Chemicals & Plastics Corp. (corporate predecessor to OCC) and other defendants under several federal statutes, seeking injunctive relief and reimbursement of cleanup costs relating to the remediation of the Landfill, which had been utilized by Hooker for several years as a disposal site for toxic chemical wastes. In 1953, Hooker covered the Landfill with soil and deeded it to the City of Niagara Falls Board of Education, and the City soon built an elementary school on the property. In the years following, the surrounding area was extensively developed and populated, and problems with odors and residues in basements and backyards became commonplace, prompting investigations of the soils and groundwater in the area. In August 1978, both the state and federal governments issued health emergency declarations, and in 1980 the federal government issued a further emergency declaration, eventually resulting in the evacuation and relocation of approximately 950 families. See generally U.S. v. Hooker Chemicals & Plastics Corp., 850 F. Supp. 993 (W.D.N.Y. 1994); U.S. v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988); see alsoItem 116-5 (Hogan Aff., Exh. D (September 2008 USEPA Five-Year Review Report, Love Canal Superfund Site)).

Remediation of the Landfill was begun by NYSDEC in 1978, and-following the enactment of CERCLA in 1980- was conducted jointly by USEPA and NYSDEC pursuant to a cooperative agreement entered in 1982.⁴ The components of the remedy, selected by means of a series of administrative determinations and regulatory decisions, consisted primarily of a 40-acre, high-density polyethylene cap covered by 18 inches of clean soil and seeded for grass; a deep drain tile perimeter trench for leachate collection; a leachate pump and treatment system; soil and sediment excavation from various properties, creeks, and sewers surrounding the landfill; land use restrictions imposed on certain other areas; provisions for ongoing operation, maintenance, and monitoring ("OM&M") of the remedial components; and long-term studies of the environmental conditions in the surrounding neighborhoods and the health of current and former residents. See Item 116-1 (Hogan Aff.), ¶ 14. These remedial components were implemented in several stages over the course of many years, pursuant to the Consent Decrees/Judgments approved by this court and entered on the record in the Hooker litigation. See Items 1-2 (1996 Consent Decree); 1-3 (1994 Consent Judgment); 1-5 (1989 Partial Consent Decree); see also 69 Fed. Reg. 12609-11.

On February 23, 1988, this court found OCC jointly and severally liable under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for the costs incurred by the state andfederal governments in responding to the emergency. See 680 F. Supp. at 556-59. In March 1994, following a lengthy trial, the court found that OCC could not be held liable for an award of punitive damages under the laws in force at the time of the conduct alleged. See 850 F. Supp. at 1069. The remaining claims and cross-claims for response costs were eventually resolved by settlement,⁵ and the case was closed upon entry of final judgment in May 1998. See Case No. 79-CV-990, Items 1520-24.

In September 1999, USEPA issued a Preliminary Close-Out Report, followed by a Final Close-Out Report in March 2004, reflecting its determination that the remedy at the Love Canal Landfill Site was complete and was protective of human health and the environment, as required by CERCLA. See Item 116-5 (Five-Year Report); 69 Fed. Reg. 12609. Later in 2004, USEPA removed the Site from the NPL, based on its determination that no further remedial actions were required, the remedy was protective of human health and the environment, and the OM&M⁶ would continue to confirm that the remedy was protective of human health and the environment. 69 Fed. Reg. 58322-23; Item 116-7.

Meanwhile, in 1988, NYSDOH issued a "Love Canal Emergency Declaration Area ("EDA") Habitability Decision," finding certain specific areas of the EDA habitable for residential use, with certain other areas deemed suitable only for commercial and/or light industrial use. Since that time, largely as a result of the efforts of the Love Canal AreaRevitalization Agency ("LCARA"), more than 260 formerly abandoned homes in the EDA have been rehabilitated and sold to new residents, repopulating the neighborhood under the new name "Black Creek Village." Item 1-1, ¶¶ 104-110; see also www.health.ny.gov/environmental/investigations/love_canal/lcdec88.

As related above, three of the families currently residing in the Black Creek Village area brought the current action in state court alleging personal injury, property damage, and loss of companionship caused by exposure to "certain 'signature' Love Canal contaminants" (Item 1-1, ¶ 124) released onto their property and into their homes as a result of, inter alia, defendants' negligent performance of the remedial program and OM&M...