Bellafaire v. Town of Wheatfield

• Decision Date: 05 August 2019
• Docket Number: Case No. 1:18-cv-00560
• Citation: 401 F.Supp.3d 405
• Parties: Alicia BELLAFAIRE, et al., Plaintiffs, v. TOWN OF WHEATFIELD, Occidental Chemical Corporation, Bell Helicopter Textron, Inc., Crown Beverage Packaging, LLC, Greif, Inc., Republic Services, Inc., and Honeywell International Inc., Defendants.
• Court: U.S. District Court — Western District of New York

401 F.Supp.3d 405

Alicia BELLAFAIRE, et al., Plaintiffs,

v.TOWN OF WHEATFIELD, Occidental Chemical Corporation, Bell Helicopter Textron, Inc., Crown Beverage Packaging, LLC, Greif, Inc., Republic Services, Inc., and Honeywell International Inc., Defendants.

Case No. 1:18-cv-00560

United States District Court, W.D. New York.

Signed August 5, 2019

Lilia Factor, Tate James Kunkle, Napoli Shkolnik PLLC, Melville, NY, Ashley M. Liuzza, Michael G. Stag, Stag Liuzza, LLC, New Orleans, LA, Louise R. Caro, Paul J. Napoli, Napoli Shkolnik PLLC, New York, NY, for Plaintiffs.

Charles D. Grieco, Dennis K. Schaeffer, Bond, Schoeneck & King, PLLC, Kevin M. Hogan, Andrew P. Devine, Deena Katherine Mueller-Funke, Joel A Blanchet, Phillips Lytle LLP, Joseph J. Welter, Susan E. VanGelder, Goldberg Segalla LLP, Laurie Styka Bloom, Nixon Peabody LLP, Brian Clinton Mahoney, Harris Beach LLP, John G. Horn, Harter, Secrest and Emery LLP, Buffalo, NY, Robert M. Rosenthal, Greenberg Traurig, LLP, Albany, NY, for Defendants.

OPINION AND ORDER GRANTING MOTIONS TO DISMISS FILED BY DEFENDANTS TOWN OF WHEATFIELD, OCCIDENTAL CHEMICAL CORPORATION, BELL HELICOPTER TEXTRON, INC., CROWN BEVERAGE PACKAGING, LLC, GREIF, INC., REPUBLIC SERVICES, INC., AND HONEYWELL INTERNATIONAL INC.

Christina Reiss, District Judge

Plaintiffs are current or previous owners or renters of residential properties in North Tonawanda, New York and the surrounding area who have lived in that area for at least one year (collectively, "Plaintiffs"). They seek to bring a class action suit against the Town of Wheatfield (the "Town"), Occidental Chemical Corporation, Bell Helicopter Textron, Inc., Crown Beverage Packaging, LLC, Greif, Inc., Republic Services, Inc., and Honeywell International Inc. (collectively, "Defendants") arising out of Plaintiffs' alleged exposure to toxic and hazardous substances emanating from the Town's Nash Road landfill (the "Site").

In their Amended Complaint, Plaintiffs assert the following claims: Count One: response costs incurred or to be incurred by Plaintiffs in connection with the Site pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"); Count Two: contribution for response costs under Section 113(f) of CERCLA; Count Three: declaratory relief as to future costs under Section 113(g)(2), (4) of CERCLA; Count Four: the Town's violation of Plaintiffs' substantive due process rights for a state-created danger pursuant to 42 U.S.C. § 1983 ; Count Five: the Town's violation of Plaintiffs' substantive due process rights to bodily integrity pursuant to 42 U.S.C. § 1983 ; Count Six: state law negligence; Count Seven: state law strict liability; and Count Eight: state law trespass. Plaintiffs' Amended Complaint is virtually identical to the complaint the court dismissed in Andres v. Town of Wheatfield , 2019 WL 2491949 (W.D.N.Y. June 14, 2019). The court therefore incorporates and adopts portions of its ruling herein. See id. at * 1-11.

I. Factual Background.

The Site is a closed, unlined, uncapped landfill on twenty-five acres of real property located at 7415 Nash Road, Wheatfield, New York, immediately north of the City of North Tonawanda and east of Nash Road. At all times relevant to this action, the Town owned the Site, which was operated by the Niagara Sanitation Company between 1964 and 1968 for the disposal of municipal and industrial waste.

Prior to its closure, the Site was used by the Niagara Falls Air Force Base, Bell Aerospace, Carborundum Corporation, Frontier Chemical, Graphite Specialties, Continental Can, and Greif Brothers, as well as local municipalities, to dispose of municipal, industrial, and hazardous waste. In 1968, approximately 1,600 cubic yards of waste from the Love Canal Landfill, including material from the Hooker Chemical and Plastics Corporation, was deposited at the Site. Shortly thereafter, waste disposal activities at the Site ended. The nature of the hazardous waste within the Site was not disclosed to the surrounding neighbors. There is no fencing around it or signage limiting access to the Site which appears to be a forest and is located adjacent to Plaintiffs' residences.

Plaintiffs allege that, for decades, they have used the Site for recreational purposes including walking, bike riding, riding of all-terrain vehicles and motorized dirt bikes, fishing, hunting, trapping, and dog-walking. Plaintiffs assert that the use of bikes and motorized vehicles created "airborne migration material from the Site during dry conditions[,]" (Doc. 16 at 10, ¶ 35) and that during wet conditions, hazardous material was carried off-site via shoes, vehicles, and pets.

In 1981, the Niagara County Department of Health investigated the Site and concluded that "the potential for migration of chemicals off-site is present." Id. at 11, ¶ 36 (internal quotation marks and alteration omitted). The Department of Health recommended that the Town conduct an abatement and required that the Site be properly closed. According to Plaintiffs, "[t]his was not done." Id.

In 1988, the Environmental Protection Agency ("EPA") determined that "hazardous waste excavated from the Love Canal Landfill was disposed of at the Site in a trench of soft, layered clay and that no engineered barriers were installed." Id. at 11, ¶ 37. The excavated materials were allegedly placed at the northeast end of the Site and then covered with soil. Plaintiffs allege that water samples taken at the Site "revealed benzene at 4500 mg/L, chlorobenzene at 590mg/L, toluene at 14,000 mg/L, and acetone at 2,300 mg/L[,]" id. , and that lead samples ranged from 67 to 20,000 parts per billion.

The 1988 EPA Site Inspection Report (the "1988 Report") indicates that the Site was flat, drainage was poor, and prior to its use as a landfill, the Site was a swamp. The 1988 Report further notes that: (1) groundwater was contaminated and that the surrounding population could potentially be affected; (2) surface water and soils were rusty in appearance and methylene chloride, total organic halogens, and toluene were detected; (3) soil samples contained metal and organic contamination; (4) the Site was used by local residents as a play area and some local residents were believed to draw water from the contaminated aquifer; and (5) the Site included pools of orange-tinted standing water as well as rubbish protruding from the ground.

In 1989, the New York State Department of Environmental Conservation ("NYSDEC"), Division of Hazardous Waste Remediation performed a "Phase II Investigation[.]" Id. at 11, ¶ 39. NYSDEC's recommendations allegedly revealed that shallow groundwater at the Site contained "significant contamination of toxic organic compounds and metals and that there was a potential for the contaminants to migrate [off-Site]." Id. at 12, ¶ 39. NYSDEC recommended that additional work be performed to determine the potential for off-Site migration and whether migration was presently occurring, including a soil-vapor survey and review of off-Site wells. To limit public access to the Site, NYSDEC advised that the Site be capped, and a fence constructed. Finally, NYSDEC recommended an investigation of whether the disposal trenches dug for the Love Canal waste had breached the clay layer and exposed the regional aquifer beneath the Site to contamination.

Plaintiffs allege that, despite the EPA's Report and NYSDEC's investigation, "no action was taken[,] ... none of the recommendations were performed[,]" and the Site "remained just as it was." Id. at 12, ¶ 40. The adjacent community was not informed of any findings or directives, or warned of any potential danger to persons or property, and residents continued to use the Site for recreational activities.

On December 21, 2015, NYSDEC issued a Public Notice with regard to the Site pursuant to New York's Superfund Program, entitled "Inactive Hazardous Waste Disposal Site Classification Notice[,]" which stated in relevant part:

As of the date of this notice, [the Site] ... presents a significant threat to public health and/or the environment for the following reason(s): The [S]ite is a former municipal and industrial landfill that accepted waste from multiple sites, including Niagara Falls Air Force Base, Bell Aerospace, Carborundum, Frontier Chemical, Graphite Specialties, Continental Can, and Gr[ei]f Brothers. Site contaminants include metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyls, pesticides, caustics, and plating tank sludge. The landfill does not have a Part 360 cap or access restrictions. Both conditions indicate a concern for potential exposures to people who enter the [S]ite. This exposure concern has been documented as people are using the landfill as a jogging and play area. Dirt bike trails are evident throughout the [S]ite and use of such has resulted in landfill materials becoming exposed at the surface. Therefore, the [S]ite represents a significant threat to the environment and public health. If you own property adjacent to this [S]ite and are renting or leasing your property to someone else, please share this information with them.

Id. at 12-13, ¶ 41.

With regard to the Town's involvement, Plaintiffs allege that Town officials and private agents with decision-making authority, including but not limited to former City Supervisor Stanley Brzezinski, landfill operator Angelo Zino, and Peace Justice Fred Lemke, affirmatively acted to create and exacerbate toxic contamination at the Site. In support of this claim, Plaintiffs assert that in or around 1968, Town officials, including but not limited to Peace Justice Lemke and Supervisor Brzezinski, actively sought or approved of the disposal of highly toxic chemicals from the Love Canal at the Site. In or around September 1968, the Department of Health requested the Town take immediate steps to prepare the Site for permanent closure, but Town officials allegedly continued to encourage the Site's use and operation. Town...