Brooklyn v. Brooklyn Transfer LLC

• Decision Date: 26 April 2018
• Docket Number: No. 17-cv-05621 (NG) (RER),17-cv-05621 (NG) (RER)
• Parties: CLEANUP NORTH BROOKLYN, JENNIFER CHANTRTANAPICHATE, OSIRIS ARIAS, MAGDA ECOBAR BELTRAN, ZALMEN LABIN, SANDERS MENDEZ, JOSE MANUEL RODRIGUEZ, TEGHVIR SETHI, MERCEDES TAPIA, BIENVENIDO TORRES, BENJAMIN WEINSTEIN, Plaintiff, v. BROOKLYN TRANSFER LLC, NINO TRISTANI, ANTHONY TRISTANI, GPB WASTE NY LLC, GPB CAPITAL HOLDINGS LLC, Defendants.
• Court: U.S. District Court — Eastern District of New York

CLEANUP NORTH BROOKLYN, JENNIFER CHANTRTANAPICHATE,OSIRIS ARIAS, MAGDA ECOBAR BELTRAN, ZALMEN LABIN, SANDERS MENDEZ,JOSE MANUEL RODRIGUEZ, TEGHVIR SETHI, MERCEDES TAPIA, BIENVENIDO TORRES,BENJAMIN WEINSTEIN, Plaintiff, v. BROOKLYN TRANSFER LLC, NINO TRISTANI, ANTHONY TRISTANI, GPB WASTE NY LLC,GPB CAPITAL HOLDINGS LLC, Defendants.

No. 17-cv-05621 (NG) (RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: April 27, 2018

April 26, 2018

OPINION and ORDER

GERSHON, United States District Judge:

On August 30, 2017, Cleanup North Brooklyn (a grassroots community group that seeks to restore the health of North Brooklyn) and its individual members (collectively, "plaintiffs") filed suit in New York State Supreme Court, Kings County, against Brooklyn Transfer LLC, Nino Tristani, Anthony Tristani, GPB Waste NY LLC, and GPB Capital Holdings LLC ("defendants"). Plaintiffs allege public nuisance, private nuisance, and nuisance per se under New York State common law based on defendants' operation of a solid waste transfer station located at 105-115 Thames Street in Brooklyn ("Trash Facility"). Defendants timely removed this matter to the Eastern District of New York.¹ Plaintiffs move to remand. As there is no basis for subject matter jurisdiction, I remand this action to state court.

I. Discussion

On a motion to remand, the party seeking to sustain the removal bears the burden of demonstrating that removal is proper. Bellido-Sullivan v. American Intern. Group, Inc., 123 F.Supp.2d 161, 163 (S.D.N.Y. 2000). Thus, defendants in this case bear the burden of establishing federal question jurisdiction.

Generally, such a question must appear on the face of the plaintiff's well-pleaded complaint, and a suit seeking recovery under state law is not transformed into a suit "arising under" federal law merely because, to resolve it, the court may need to interpret federal law. Sullivan v. American Airlines, 424 F.3d 267, 271 (2005); Bellido-Sullivan, 123 F.Supp.2d at 163.

However, three situations exist in which a complaint, like the Complaint here, that does not allege a federal claim may nonetheless arise under federal law for purposes of subject matter jurisdiction: first, if Congress expressly provides, by statute, for removal of state law claims; second, if the state law claims are completely preempted by federal law; and third, if the vindication of a state law right necessarily turns on a question of federal law. Fracasse v. People's United Bank, 747 F.3d 141, 144 (2d Cir. 2014) (internal quotations omitted); see also Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1, 13 (1983)("original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is 'really' one of federal law.").

The third possibility, invoked by defendants here, is an "extremely rare exception" that has been defined as conferring federal court jurisdiction over a state law claim where the federal issueis: (1) necessarily raised; (2) actually disputed; (3) substantial; and (4) capable of resolution in federal court without disrupting the federal-state balance. Gunn v. Minton, 568 U.S. 251, 258 (2013) (internal parentheses omitted); Fracasse, 747 F.3d at 144. "The mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986); Finance and Trading, Ltd. v. Rhodia S.A., 2004 WL 2754862, at *6 (S.D.N.Y. 2004).

Here, defendants argue that plaintiffs' claims necessarily raise federal questions under the Resource Recovery and Conservation Act ("RCRA"), 42 U.S.C. §§ 6962 et seq. and its implementing regulatory scheme. Defendants identify a litany of federal statutory and regulatory provisions and summarily argue that these create the "world" of solid waste management and that plaintiffs' "broad" allegations require their adjudication. Def. Mem. of Law at 4.²

Defendants' arguments are unpersuasive. First, RCRA contains a savings clause expressly permitting common law remedies with respect to solid waste management:

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency).

42 U.S.C. § 6972(f). In passing RCRA, Congress thus anticipated the continuing viability of state law claims in the area of solid waste management. Further, RCRA's Congressional findings expressly state that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies." 42 U.S.C. § 6901(a)(4). While RCRAacknowledges that waste disposal problems require Federal "assistance" and "leadership," 42 U.S.C. § 6901(a)(4), and that the Environmental Protection Agency ("EPA") should "develop" and "suggest" guidelines for solid waste management, 42 U.S.C. § 6907(a), RCRA does not displace state and local control of solid waste management. Nor does it create the standards for a common law claim sounding in state law. Far from creating a federal "world" of solid waste management, RCRA is replete with provisions calling for federal-state collaboration as to solid waste management. See, e.g., 42 U.S.C. § 6902(a)(7) ("establishing a viable Federal-State partnership to carry out the purposes of this chapter"); 42 U.S.C. § 6902(a)(11) ("establishing a cooperative effort among the Federal, State, and local governments" to recover energy from solid waste); 42 U.S.C. § 6942(b) (setting forth federal guidelines for state plans for waste management, after consultation with state and local authorities). Finally, at no point does RCRA disturb established precedent in this Circuit that "control over the regulation of garbage collection is a classic example of municipal police powers reserved to the state and local governments." Sanitation & Recycling Indus., Inc. v. City of New York, 928 F. Supp. 407, 410 (S.D.N.Y. 1996), aff'd, 107 F.3d 985 (2d Cir. 1997).

Defendants' reliance on the EPA regulations promulgated under RCRA, 40 C.F.R. Part 243, is similarly unavailing. Indeed, "the EPA has explicitly said that 'No federal regulations exist that are specifically applicable to transfer stations.'" Paskar v. City of New York, 3 F. Supp. 3d 129, 135 (S.D.N.Y. 2014) (emphasis in original) (noting that transfer stations are regulated by New York state authorities). Defendants also admit that the regulations merely recommend procedures to State and local governments; they do not require States to abide by particular procedures. See 40 C.F.R. § 243.100(c) (emphasis added). I am thus unpersuaded that plaintiffs will necessarily have to rely on RCRA or its related regulations to establish their nuisanceclaims. In any event, the mere referencing of federal law is not sufficient to confer federal jurisdiction. Finance, 2004 WL 2754862, at *8.

Defendants' reliance on Stanley v. Amalithone Realty, Inc., 31 Misc.3d 995 (Sup. Ct. N.Y. Cty 2011) and Merrick Gables Ass'n, Inc. v. Town of Hempstead, 691 F. Supp. 2d 355, 365 (E.D.N.Y. 2010) also is unavailing. Both cases involve plaintiffs bringing state law nuisance claims alleging that radiation from nearby cellular towers caused them harm. The courts in each of these cases acknowledged the broad reach of the Federal Telecommunications Act ("FTA"), Pub.L. No. 104-104, 110 Stat. 56, and the district court in Merrick Gables specifically observed that "the FTA prevents state and local governments from regulating the placement of []equipment based on perceived fears about the health risks of radio frequency emissions." Merrick Gables Ass'n, 691 F. Supp. 2d at 365 (citing 47 U.S.C. § 332(c)(7)(B)(iv)). RCRA does not limit the role of state and local governments in the manner of the FTA. Further, the Federal Communications Commission regulated the cellular towers in both cases, and defendants' operation of the Trash Facility is not governed by any such federal authority. In fact, defendant concedes that its only permits are state and local. Def. Mem. of Law at 15.

Finally, defendants suggest that plaintiffs' nuisance claims are better brought as a citizen suit under § 6972 of RCRA. Def. Mem. of Law at 23-24. Whether or not such a suit is...