Brooklyn Union Gas Co. v. Exxon Mobil Corp.
| Decision Date | 13 August 2020 |
| Docket Number | 17-CV-7476 (MKB) |
| Citation | 478 F.Supp.3d 417 |
| Parties | The BROOKLYN UNION GAS COMPANY d/b/a National Grid NY, Plaintiff, v. EXXON MOBIL CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
James M. Showalter, Bradley Scott Rochlen, Pro Hac Vice, Robert Middleton, Pro Hac Vice, Russell Bertram Selman, Pro Hac Vice, Schiff Hardin LLP, Chicago, IL, Edward Karl Roggenkamp, Nossaman LLP, Washington, DC, for Plaintiff.
John B. McCusker, McCusker, Anselmi, Rosen, Carvelli, New York, NY, Rosemarie DaSilva, McCusker Anselmi Rosen & Carvelli, Florham Park, NJ, David Edelstein, Pro Hac Vice, Archer & Greiner, P.C., Haddonfield, NJ, for Defendant.
Plaintiff The Brooklyn Union Gas Company, doing business as National Grid NY, commenced the above-caption action on December 22, 2017, against Defendant ExxonMobil Corporation asserting that Defendant's historic disposal of hazardous waste presents an "imminent and substantial endangerment" under section 6972 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(A) and (B) ("RCRA"), and seeking declaratory and injunctive relief and civil penalties. (Compl. 1, Docket Entry No. 1.) On May 28, 2019, Defendant filed an Answer to the Complaint asserting one counterclaim pursuant to RCRA section 6972(a)(1)(B) and twenty-three affirmative defenses. (Answer, Docket Entry No. 40.)
Plaintiff now moves to dismiss Defendant's RCRA counterclaim for lack of subject matter jurisdiction and to strike nine of the affirmative defenses pursuant to Rules 12(b)(1) and 12(f) of the Federal Rules of Civil Procedure, respectively. (Pl. Mot. to Dismiss & to Strike ("Pl. Mot."), Docket Entry No. 55; Pl. Mem. in Supp. of Pl. Mot. ("Pl. Mem."), Docket Entry No. 55-1.) Defendant opposes the motion. (Def. Mem. in Opp'n to Def. Mot. ("Def. Opp'n"), Docket Entry No. 56.) For the reasons discussed below, the Court (1) grants the motion to dismiss Defendant's RCRA counterclaim for lack of subject matter jurisdiction; (2) grants the motion to strike as to the seventh, ninth, sixteenth, eighteenth, and nineteenth affirmative defenses; and (3) denies the motion to strike as to the fourth, fifth, sixth, tenth, and twentieth affirmative defenses.
(Id. ¶ 6.)
The Refinery Site began operating in the 1860s and Defendant continued its operation for several decades, causing or contributing to the handling, treatment, and disposal into the environment of solid and hazardous substances that remain on, and adjacent to, Defendant's former property.
(Id. ¶¶ 7–10, 27–45.) Plaintiff's Williamsburg Works Manufactured Gas Plant (the "MGP Site") was adjacent to and bordered on two sides by the Refinery Site. (Id. ¶ 11.)
Plaintiff alleges that hazardous substances at the Refinery Site "are consistent with those associated with kerosene refineries" and "petroleum bulk storage terminals." (Id. ¶¶ 20, 26.) Compounds from hazardous substances such as volatile organic compounds ("VOCs") and semi-volatile organic compounds ("SVOCS") were located on or near the Refinery Site. (Id. ¶ 9.) In the early 1930s, Standard Oil, a predecessor of Exxon, installed six-inch steam piping running across the [MGP Site]. (Id. ¶ 35.) According to Plaintiff, "upon information and belief ... non-marketable petroleum wastes associated with the ... Refinery and other hazardous substances ... remain upon, and in the vicinity of, the Refinery ... in a manner that may present an imminent and substantial endangerment to health or the environment." (Id. ¶ 45.) Solid waste and hazardous substances from the Refinery Site have migrated and continue to migrate onto the [MGP Site] and have prevented Plaintiff from "fully and meaningfully remediating the former MGP site until Exxon investigates, characterizes, and remediates the Refinery Site." (Id. ¶¶ 49–50.)
Plaintiff alleges that the New York State Department of Environmental Conservation (the "NYSDEC") "has requested that [Defendant] investigate and remediate the Refinery Site," but Defendant has refused to do so. .) Plaintiff further alleges that "[u]nless and until [Defendant] investigates and remediates the Refinery Site, Plaintiff will be forced to investigate and remediate contamination that has migrated from the Refinery ... to the [MGP Site]" or pay NYSDEC investigative and remedial costs at the MGP Site. (Compl. ¶ 53.) Plaintiff also alleges that "[c]hemicals of concern" remain "onsite" and "may present an imminent and substantial endangerment to health or the environment." (Id. ¶ 54.)
On or about September 21, 2017, Plaintiff served a notice of endangerment under RCRA section 7002(b)(2)(a) dated September 21, 2017 on "U.S. Environmental Protection Agency (‘EPA’) Administrator Scott Pruitt, EPA Region 2 Acting Administrator Catherine McCabe, Attorney General Jefferson Sessions, [NYSDEC] Commissioner Basil Seggos, New York State Assistant Attorney General Joseph Kowalczyk, and Defendant." (Id. ¶ 66.)
On November 27, 2017, the NYSDEC sent a letter to Plaintiff in regard to Plaintiff's notice of intent to file a citizen's suit. (2017 NYSDEC Letter.) The 2017 NYSDEC Letter identified Plaintiff as a responsible party liable for contamination at Block 2277, Block 2287, or Block 2294. (Id. ) The letter further states that the NYSDEC will "conduct an investigation on Block 2277 using Oil Spill Fund money" and "will be providing notice to the identified [potentially responsible parties], including [Plaintiff], requesting that they agree to conduct an investigation of Block 2287, and if they fail to do so, the [NYSDEC] will conduct the investigation using State Superfund money." (Id. ) The letter also states that the NYSDEC conducted "some investigatory work" at Block 2294 and that "a structure impede[ed] further investigation" but that the NYSDEC had sufficient information from previous investigatory work and therefore did not intend to perform any additional investigations. (Id. )
On December 22, 2017, Plaintiff filed the Complaint, alleging that Defendant's historic disposal of hazardous waste presents an "imminent and substantial endangerment" under RCRA section 6972 and seeking declaratory and injunctive relief and civil penalties. (See Compl.)
On March 13, 2018, Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim or, in the alternative, for the Court to abstain from exercising jurisdiction over this action pursuant to the Primary Jurisdiction Doctrine. (Def. Mot. to Dismiss, Docket Entry No 21; Def. Mem. in Supp. of Def. Mot. to Dismiss, Docket Entry No. 21-1.) In its opposition to Defendant's motion, Plaintiff withdrew its request for civil penalties. (Pl. Opp'n to Def. Mot. to Dismiss ("Pl. Opp'n to Mot. to Dismiss") 4 n.3, Docket Entry No. 23.)
On March 26, 2019, the Court heard oral argument on Defendant's motion and denied the motion in its entirety. (Min. Entry dated Mar. 26, 2019.)
On May 28, 2019, Defendant filed an Answer to the Complaint asserting one counterclaim pursuant to RCRA section 6972(a)(1)(B) and twenty-three affirmative defenses. (See generally Answer.) In support of its RCRA counterclaim, Defendant alleges that contaminants at the MGP Site migrated to the Block 2277 of the Refinery Site and that "[t]o the extent this Court finds that contamination exists and is unremediated and might pose an imminent and substantial endangerment," that endangerment "is a result of [Plaintiff's] ownership" such that Plaintiff is required to investigate and remediate the MGP Site and other impacted properties." (Id. at 14 ¶¶ 14, 26–27.)
Plaintiff moves to dismiss Defendant's RCRA counterclaim and to strike ten of the twenty-three affirmative defenses asserted in the Answer. (Pl. Mem.; Pl. Mot.) Defendant opposes the motion. (Def. Opp'n.)
i. 12(b)(1)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ); see also Chau v. S.E.C. , 665 F. App'x 67, 70 (2d Cir. 2016). "[T]he party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co., LLC , 720 F. App'x 52, 53 (2d Cir. 2018). In evaluating whether a plaintiff has met that burden, " ‘[t]he court must...
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