Amw Materials Testing, Inc. v. Town of Babylon

• Decision Date: 19 October 2009
• Docket Number: Docket No. 08-1731-cv.
• Citation: 584 F.3d 436
• Parties: AMW MATERIALS TESTING, INC., Anthony Antoniou, Plaintiffs-Counter-Defendants-Appellants, v. TOWN OF BABYLON, Defendant-Counter-Claimant-Cross-Defendant-Appellee, North Amityville Fire Company, Inc., Defendants-Counter-Claimants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

584 F.3d 436

AMW MATERIALS TESTING, INC., Anthony Antoniou, Plaintiffs-Counter-Defendants-Appellants, v.TOWN OF BABYLON, Defendant-Counter-Claimant-Cross-Defendant-AppelleeNorth Amityville Fire Company, Inc., Defendants-Counter-Claimants-Appellees.

Docket No. 08-1731-cv.

United States Court of Appeals, Second Circuit.

Argued: August 7, 2009.

Decided: October 19, 2009.

Joan M. Ferretti(Robert M. Lustberg, on the brief), Lustberg & Ferretti, Glens Falls, NY, for Appellants.

Richard F. Ricci(Priya Rebecca Masilmani, on the brief), Lowenstein Sandler, Roseland, NJ; Steven C. Shahan, Tadeo & Shahan, Syracuse, NY, for Appellees.

Before: LAUGHLIN, POOLER, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

PlaintiffsAMW Materials Testing, Inc., and its owner Anthony Antoniou appeal a judgment entered in favor of defendants, the Town of Babylon and the North Amityville Fire Company, after a jury trial in the United States District Court for the Eastern District of New York(Arthur D. Spatt, Judge).The case arises from defendants' emergency response to a 2000 fire that destroyed the AMW building in North Amityville, in the course of which hazardous materials stored in the building were released into the environment.Plaintiffs sued defendants under federal law, specifically, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., as well as under New York tort law and New York Navigation Law § 181(1), to recover costs incurred in responding to this release.

In appealing the judgment entered on March 24, 2008, in favor of defendants on the CERCLA claims, plaintiffs raise various challenges falling into two general categories.First, plaintiffs submit that defendants were "operators" of the AMW facility at the time the hazardous materials at issue were released and, therefore, are liable for cleanup costs under 42 U.S.C. § 9607(a).Second, plaintiffs assert that emergency response actions pursuant to 42 U.S.C. § 9607(d)(2) cannot constitute an affirmative defense to § 9607(a) liability.Our ability to address these arguments is somewhat complicated by the fact that the district court's inquiries to the jury and its own findings of fact and conclusions of law focused primarily on the affirmative defense, with no findings made on the operator question.Plaintiffs nevertheless submit that the trial record permits the operator question to be answered in their favor as a matter of law.We are not persuaded.Moreover, we reject plaintiffs' argument that § 9607(d)(2) cannot afford an affirmative defense to their § 9607(a) claims.We further reject plaintiffs' various challenges to the judgment in favor of defendants on their state law claims.

Accordingly, we affirm the judgment in favor of defendants.

I.Background

We begin with a brief summary of the facts, providing further details of the trial evidence as necessary in our discussion of plaintiffs' particular challenges on appeal.

A.The Fire

In 2000, plaintiffs owned an industrial facility in North Amityville, New York, where they engaged in metal finishing for the aerospace industry.Pursuant to permits, plaintiffs stored various "hazardous substances,"see42 U.S.C. §§ 9601(14),9602(a), in the AMW facility for use in their work.

Sometime before 3:00 p.m. on October 9, 2000, a fire broke out in plaintiffs' facility, which Antoniou and an AMW employee unsuccessfully attempted to extinguish.Meanwhile, individual callers and an automatic alarm system in the AMW facility alerted defendantNorth Amityville Fire Company("Fire Company") — a volunteer association — to the fire.Within minutes, members of the Fire Company responded to the scene.

Fire Company Chief Willie Tutt initially ordered firefighters into the AMW building to fight the blaze from within.Almost immediately, the firefighters were compelled to withdraw by the extremely high heat and thick smoke that they encountered.Soon after their exit, the front wall and roof of the building collapsed.As a result, the Fire Company decided to employ defensive firefighting techniques, using a deck gun and a tower ladder to suppress the fire.Chief Tutt testified that, at the time, he understood that the building was likely lost.After firefighters thus extinguished the accessible portions of the fire, Chief Tutt instituted an "overhaul" phase in which payloaders removed portions of the collapsed roof so that firefighters could gain access to the fire that continued to smolder underneath.

As a result of the fire and the subsequent building collapse, hazardous substances stored in plaintiffs' facility were released into the surrounding environment.During and after the fire, plaintiffs took various steps to contain, remove, and remediate these hazardous substances.

B.Plaintiffs' Lawsuit and the Initial Award of Summary Judgment

On June 22, 2001, plaintiffs commenced this action against the Fire Company and the Town of Babylon,¹ seeking compensation under federal and state law for costs incurred in dealing with the released hazardous substances.On December 20, 2004, the district court granted summary judgment in favor of defendants on all claims.On appeal, a panel of this court summarily affirmed the award on plaintiffs' CERCLA contribution claims, see42 U.S.C. § 9613, but reversed it on the CERCLA restitution claims, seeid.§ 9607(a), as well as the state negligence and Navigation Law claims, seeN.Y. Nav. Law § 181(1).SeeAMW Materials Testing, Inc. v. Town of Babylon,187 Fed. Appx. 24(2d Cir.2006).

C.The Trials

On remand, the first trial of plaintiffs' claims ended in a hung jury and mistrial.At a retrial in 2007, the district court used a verdict sheet to pose certain questions to the jury relating to plaintiffs' claims.As to plaintiffs' state law claims, the jury answered all questions in favor of defendants.As to plaintiffs' CERCLA claims, the jury's responses were more ambiguous.²Having previously determined that plaintiffs had no right to a jury trial on their CERCLA restitution claims, the district court treated the jury's responses on those claims as only advisory.SeeFed. R.Civ.P. 39(c)(1).Making its own findings of fact and conclusions of law with respect to CERCLA, and following the jury's findings with respect to the state law claims, the district court entered a final judgment in favor of both defendants on all plaintiffs' claims.SeeFed.R.Civ.P. 52(a)(1).

Plaintiffs filed this timely appeal.

II.Discussion

A.The CERCLA Claims

1.Statutory Background

Preliminary to discussing plaintiffs' particular challenges to the judgment entered in favor of defendants on the CERCLA claims, we discuss the relevant statutory scheme.Congress enacted CERCLA in 1980"to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination."Burlington N. & Santa Fe Ry. Co. v. United States,___ U.S. ___, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812(2009)(internal quotation marks omitted).The statute seeks to accomplish this goal through three cost-shifting provisions: CERCLA§ 107(a),42 U.S.C. § 9607(a), which permits recovery of cleanup and prevention costs;id.§ 113(f)(1),42 U.S.C. § 9613(f)(1), which creates a right of contribution for parties who have been compelled to clean up a site by a court or administrative body; and id.§ 113(f)(3)(B),42 U.S.C. § 9613(f)(3)(B), which creates a similar right of contribution for parties that have resolved the issue of liability to the United States by a settlement agreement.See generallyConsolidated Edison Co. of N.Y., Inc. v. UGI Utils., Inc.,423 F.3d 90, 94(2d Cir.2005)(discussing statutory framework).³This court having affirmed the award of summary judgment in favor of defendants on plaintiffs' contribution claim, seeAMW Materials Testing, Inc. v. Town of Babylon,187 Fed.Appx. at 26, only CERCLA§ 107(a),42 U.S.C. § 9607(a), providing for restitution, is relevant to this appeal.

a. Section 9607(a) Liability

Title 42 U.S.C. § 9607(a) defines four classes of "covered persons" subject to liability for "response costs,"i.e., the costs "of cleaning up and preventing future contamination at a site" onto which hazardous materials have been released.Consolidated Edison Co. of N.Y., Inc. v. UGI Utils., Inc.,423 F.3d at 94-95.For purposes of this appeal, we focus on § 9607(a)(2), the provision relied on by plaintiffs in suing defendants for restitution.Section 9607(a)(2) states that "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of" is a "covered person" for purposes of CERCLA.Although plaintiffs were undoubtedly the owners of the AMW facility from which the hazardous materials at issue in this case were released, they submit that defendants are liable under § 9607(a)(2) as the effective operators of the facility throughout the time they fought the fire at the site.

b. Section 9607 Defense Provisions

The introductory language of § 9607(a) states that "[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section," persons "covered" under the subsection are strictly liable.Subsection (b), which is not at issue in this case, affords an affirmative defense to a covered person who can demonstrate that the damages attributable to the release or threatened release of a hazardous substance were caused "solely" by an act of God, war, or a third party unrelated to the covered person.42 U.S.C. § 9607(b).

In a 1986amendment to CERCLA codified at 42 U.S.C. § 9607(d), Congress provided a further defense that is here at issue.Specifically, § 9607(d)(2) states as follows:

No State or local government shall be liable under this subchapter[⁴] for costs or damages as a result of actions taken in response to an emergency...