Cannistra Realty, LLC v. United States Envtl. Prot. Agency
| Docket Number | 19-CV-3558 (CS) |
| Decision Date | 27 December 2021 |
| Parties | CANNISTRA REALTY, LLC, Plaintiff/Counterclaim Defendant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant/Counterclaim Plaintiff, MICHAEL S. REGAN, in his official capacity as Administrator of the United States Environmental Protection Agency, and PAT EVANGELISTA, in his official capacity as Director of the Superfund and Emergency Management Division of the United States Environmental Protection Agency, Region 2, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Keane & Beane, P.C.
White Plains, New York
Counsel for Plaintiff/Counterclaim Defendant
Jennifer C. Simon
Assistant United States Attorney
Southern District of New York
New York, New York
Counsel for Defendants/Counterclaim Plaintiff
Before the Court are cross-motions for summary judgment filed by:
1) Plaintiff/Counterclaim Defendant Cannistra Realty, LLC (“Cannistra”); and
2) Defendant/Counterclaim Plaintiff United States Environmental Protection Agency (“EPA”) and Defendants Michael S. Regan and Pat Evangelista, in their official capacities as EPA Administrator and Director of Region 2 of the EPA Superfund and Emergency Management Division, respectively (collectively, “Defendants”). (ECF Nos. 103, 110.) For the following reasons, Defendants' motion is GRANTED and Cannistra's motion is DENIED.
The following facts are undisputed except where noted.[1]
1. The Cannistra Property
In 1996, Cannistra purchased a parcel of real property, slightly smaller than one acre, located at 115-125 Kisco Avenue, Mt. Kisco, NY 10549 (the “Cannistra Property”). (P's 56.1 Stmt. ¶ 1.) The Cannistra Property consists of a two-story building and a parking lot, which take up “essentially the entire parcel, such that there is virtually no undeveloped land at the site.” (Id. ¶¶ 1, 4.) Beginning on August 15, 2013, Cannistra signed a long term, exclusive lease with Tesla to rent out the property as a sales and service center (the “Tesla Dealership”). (Id. ¶¶ 6, 10.)
The Tesla Dealership sales showroom is open Monday through Friday from 10:00 a.m. to 7:00 p.m., Saturday from 10:00 a.m. to 6:00 p.m., and Sunday from 11:00 a.m. to 6:00 p.m., and the service center is open Monday through Friday from 8:00 a.m. to 6:00 p.m., and Saturday from 8:00 a.m. to 4:00 p.m. (Id. ¶¶ 16-17.) The Tesla Dealership ranks fifth highest in the country in terms of volume of new car deliveries for Tesla, (id. ¶ 11), and “[o]n its busiest days, the Tesla Dealership is visited by approximately 400-500 persons for various reasons, including customers returning with cars that need service, and individuals shopping for a new car, ” meaning the parking lot is “packed with parked vehicles, ” (id. ¶¶ 20, 27).
2. The CanRad Superfund Site
From approximately 1943 to 1966, the Canadian Radium and Uranium Corporation (“CanRad”) extracted uranium, radium, and other radioactive elements from uranium-bearing sludge, watch dials, and other materials at a facility in Mt. Kisco. (P's 56.1 Resp. ¶¶ 5-6.) After the facility closed in 1966, the CanRad facility's buildings (a two-story concrete block building and two smaller one-story concrete block buildings) were demolished, and the former facility and surrounding areas were scraped. (Id. ¶ 7.) Today, the former site of the CanRad facility is a non-NPL[2] CERCLA[3] site (the “CanRad site”), although the precise borders and location of the site are not known, as the area was extensively redeveloped. (Id. ¶¶ 5, 7.) The Cannistra Property is located adjacent to the CanRad site.[4] (Id. ¶ 14.)
Investigations at the CanRad site performed in the 1970s, 1980s and 1990s indicated “that elevated levels of radiation remained in soils at the former CanRad facility.” (Id. ¶ 8.) Investigation by EPA in the 1990s and early 2010s found that measurable residual radiological contamination remained at the CanRad site, but no further action was required. (Id. ¶¶ 9-10.) In 2015 the current owners of the CanRad site asked EPA to perform additional sampling and testing to determine if a CERCLA removal action was warranted. (Id. ¶ 11.) EPA conducted a number of tests on the CanRad site from 2015 to 2017, which found “significantly elevated levels of radium-226” that were “significantly higher than EPA's site-specific action level, ” along with “elevated gamma readings in the northeast portion of the former CanRad facility property at the border with the Cannistra Property.” (Id. ¶ 13.)
3. EPA's Attempts to Inspect the Cannistra Property
Based on the assessment done at the former CanRad Site and the known history of the facility, EPA believed that the Cannistra Property might be contaminated with radioactive substances. (Id. ¶ 15.) Accordingly, EPA determined it was necessary to investigate at the Cannistra Property to learn the extent of any release of hazardous radioactive materials and whether there were risks to the environment and human health that would require a response from EPA. (Id.)
EPA planned to perform three investigatory activities at the Cannistra Property. The first was radon sampling, to determine whether radiological contamination might be impacting indoor air quality and presenting a public health concern to occupants of the building at the Cannistra Property. (Id. ¶ 16.) This sampling would involve “plac[ing] hockey puck-sized, radon canisters indoors in the building at the Cannistra Property and [leaving] the canisters, undisturbed, for 72 hours, ” after which EPA would collect the canisters and have them analyzed by a laboratory. (Id. ¶ 17.) The second planned investigatory activity involved radiological screening outside the building, in order to identify any locations and levels of potential radiological concern. (Id. ¶ 16.) “EPA anticipated utilizing a gamma probe attached to a computer and a geographical positioning system device that would both be mounted on top of a mobile unit (it was anticipated that this mobile unit would be approximately the size of a baby-jogging stroller) and pushed by hand in open areas of the Cannistra Property.” (Id. ¶ 18.) EPA planned to analyze the results to confirm appropriate soil sampling locations. (Id.) The third activity would involve soil sampling, conducted via a direct-push “Geoprobe” soil sampling device, roughly the size of a small car, which would collect soil samples down to eight feet in depth. (Id. ¶¶ 16, 19.) EPA initially planned to collect soil from ten locations throughout the Cannistra Property, with each boring taking up to two hours to complete. (Id. ¶ 19.)
EPA's standard practice for response activities under CERCLA is to first seek access to a property with consent of that property's owner. (Id. ¶ 23.) Typically, an on-scene coordinator (“OSC”) assigned to a site contacts the owner to explain the need for access and provides a standardized form, which may be modified to include certain site-specific information and circumstances, and requests that the property owner sign the form to grant EPA access to the property on consent. (Id.)
On May 10, 2018, the designated OSC for the CanRad site, Daniel Gaughan, placed a phone call to Cannistra's principal to discuss EPA's need for access to the Cannistra Property, and provided Cannistra with documents and other relevant data. (Id. ¶ 24.) On May 18, Gaughan and EPA Assistant Regional Counsel Margo Ludmer spoke with Cannistra's representatives, again explaining the need for access to the Cannistra Property. (Id.) Three days later, EPA provided Cannistra with EPA's standardized Consent for Access to Property form, which was modified to specify that EPA would be “Performing radiological survey activities; Collecting radon samples from within site buildings; and Collecting environmental samples” at the Cannistra Property. (Id. ¶ 25.) Ludmer followed up with Cannistra's counsel by email on May 31, requesting that Cannistra advise EPA as soon as possible whether it would grant access or not. (Id.) In addition, Ludmer advised Cannistra that the matter was time sensitive, as EPA sought to perform the work in June of 2018, and arrangements would need to be made with EPA's contractor. (Id.)
During these initial communications, Cannistra expressed concerns about the impact of EPA's work on the business operations of the Tesla Dealership, including that Tesla could terminate the lease because of these disruptions. (Id. ¶ 26.) In response, by email dated June 7, EPA advised Cannistra that EPA could potentially perform “some or all of the work during non-business hours, dependent upon the dealership's hours of operation and EPA availability/payment of overtime compensation.” (Id.) In the same email, EPA also advised, in response to a possibility raised by Cannistra, that “EPA does not make funds available to compensate property owners in [Cannistra's] position, nor would EPA indemnify [Cannistra]” for losses it might suffer as a result of the work. (Id. ¶ 27; see ECF No. 109-2 at 456.)
In a June 12, 2018, email, “Cannistra proposed to grant access to EPA for one day only, July 4, 2018, when the Tesla dealership would be closed for the holiday.” (Id. ¶ 28.) Cannistra advised EPA that the dealership was “very busy and . . . the parking lot is occupied with a number of vehicles that are stored, are waiting to be serviced or are customers' vehicles visiting the site.” (Id.) Because of the various activities that needed to be completed, EPA advised Cannistra, by email dated June 15, that access could not be limited to one day. (Id.) Although EPA told Cannistra that it “may be possible for EPA to arrive at the property a few hours before the dealership opens to complete a portion of the work (e.g., placement/collection...
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