Lewis v. Fmc Corp..

• Decision Date: 29 March 2011
• Docket Number: No. 04–CV–331S.,04–CV–331S.
• Citation: 786 F.Supp.2d 690
• Parties: Forest LEWIS, Deborah Lewis, Kellie Kretchmer, Victor Baker, Judith Baker, Anthony Gagliardi and Jane Gagliardi, individually and as Parents of Tyler Gagliardi, infant, Gregory Rydza, Susan Rydza, Ashley Rydza, Jeremy Rydza and Jessie Dipirro, Plaintiffs,v.FMC CORPORATION, Defendant.
• Court: U.S. District Court — Western District of New York

786 F.Supp.2d 690

Forest LEWIS, Deborah Lewis, Kellie Kretchmer, Victor Baker, Judith Baker, Anthony Gagliardi and Jane Gagliardi, individually and as Parents of Tyler Gagliardi, infant, Gregory Rydza, Susan Rydza, Ashley Rydza, Jeremy Rydza and Jessie Dipirro, Plaintiffs,

v.FMC CORPORATION, Defendant.

No. 04–CV–331S.

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

March 29, 2011.

David J. Seeger, Law Office of David J. Seeger, Brenda J. Joyce, Charles D. Grieco, Dennis P. Harkawik, Jaeckle Fleischmann & Mugel LLP, Buffalo, NY, for Plaintiffs.Hugh M. Russ, III, Jeffrey C. Stravino, Robert B. Conklin, Hodgson Russ LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

Plaintiffs, residents of the Village of Middleport, Niagara County, New York, commenced this citizen suit on April 30, 2004, asserting claims under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901 et seq., the Clean Water Act (CWA), 33 U.S.C. §§ 1251, et seq., and the common law of the State of New York. They seek injunctive relief, damages, and the imposition of civil penalties against Defendant FMC Corporation for its alleged violations of federal environmental law on real property located in the Village of Middleport.

Presently before the Court is FMC's Motion to Preclude Plaintiffs' Expert and for Summary Judgment. (Docket No. 85.) ¹ Plaintiffs oppose the motion.² For the reasons stated below, FMC's motion is granted in its entirety.

II. BACKGROUND

A. Facts

It is noted at the outset that Plaintiffs did not file the requisite response to FMC's Local Rule 56.1 statement of undisputed facts. Thus, unless FMC's stated facts are unsupported, they are deemed admitted. The facts below are taken from the pleadings, to the extent they are in agreement, and from FMC's Rule 56.1 statement and supporting documents.

1. The Site and Surrounding Areas

FMC owns and operates a pesticide formulations facility (the Facility) situated on approximately 91 acres in Middleport, New York. The northern portion of the Facility (comprising approximately 52 acres) was used for the manufacture and/or formulation of pesticide products beginning in the 1920s. ³ (Docket No. 8, Ex. 3 at 030112, 030131.) As a result of pre–1974 waste handling practices, soils and groundwater in the northern half of the Facility were extensively contaminated. ( Id. at 030065.) Investigations have identified 54 solid waste management units (SWMUs) at the Facility. (Docket Nos. 1 ¶ 27; 4 ¶ 27 ⁴; 84 Ex. 3 at 030121–22, 030390–91.) Of particular concern in this litigation is the potential migration of, and harm from, arsenic present at the Facility.

Situated on the northern half of the Facility are, among other things, buildings used for formulating and storing pesticides, a water treatment plant and associated holding tanks, a western surface impoundment area, a former central surface impoundment area, and an eastern surface impoundment area. ( Id. at 030112, 030531.)

Adjacent to the Facility's northern boundary is a former Conrail right-of-way, running in an east-west direction, which FMC acquired in or about 2000. ( Id. at 030531; and Pldgs. ¶ 131.) There are ditches on each side of the railroad bed and tracks—the “North Ditch” and the “South Ditch”—which together are referred to as the “Northern Ditches.” (Pldgs.¶ 132.) The Royalton–Hartland (Roy–Hart) Junior Senior High School and Elementary School are located to the north and northeast of the Facility, immediately north of the former Conrail right-of-way. (Docket No. 84, Ex. 3 at 030111.) To the west of Roy–Hart, and also immediately north of the former Conrail right-of-way, are eight separately owned parcels of land which together comprise the “Area 2 North Commercial Area.” (Docket Nos. 1 ¶ 89; 91 ¶¶ 3–8.) Residential properties are adjacent to the Facility's western boundary. ( Id.)

2. The Administrative Order on Consent

In 1991, the United States Environmental Protection Agency (EPA), the New York State Department of Environmental Conservation (DEC),⁵ and FMC entered into an Administrative Order on Consent (AOC) pursuant to Section 3008(h) of RCRA and Section 71–2727(3) of the New York State Environmental Conservation Law (ECL). (Docket No. 4, Ex. B (the AOC).) The purpose of the AOC is “to protect human health and the environment from releases of hazardous waste ... and hazardous constituents ... at or from [FMC's] Facility” in Middleport, New York, and it “requires, at a minimum, Interim Corrective Measures, and the performance by [FMC] of a RCRA Facility Investigation (RFI), to determine fully the nature and extent of any release(s) of hazardous waste and/or hazardous constituents from the Facility into the environment and to gather necessary data to support the Corrective Measures Study, if one is deemed necessary.” (AOC at 5.) In addition, the AOC requires the development and implementation of a groundwater monitoring program. It provides for use of the western surface impoundment as an interim corrective measure and postpones closure of the eastern and western surface impoundments pending completion of the RFI and, if necessary, the CMS. (AOC at 6.)

In or about January 1999, the EPA accepted an RFI prepared by consultants for FMC, the stated objectives of which were to determine the nature and extent of releases of hazardous wastes or hazardous constituents from regulated units, SWMUs, and other source areas at the Facility and to gather all necessary data to support the Corrective Measures Study, if one is determined to be necessary. (Pldgs. ¶¶ 56–57.)

3. Relevant Remediation Activities and Status

FMC has performed and/or contracted for a number of studies and remedial actions under the AOC. What follows is not a complete discussion of those activities. Rather, the focus is on the particular properties and areas referenced in the Complaint.

a. The Three Surface Impoundments

In 1985, DEC notified FMC that the Facility's three surface impoundment areas were considered RCRA-regulated hazardous waste management units. (Docket Nos. 84, Ex. 3 at 030178–79; 90 ¶ 15.) In 1986, FMC submitted to the DEC a plan of closure for the three impoundment areas, which now are covered by the corrective action program being performed pursuant to the 1991 AOC. ( Id.)

The western surface impoundment (SWMU # 4) was closed as a hazardous waste management unit in 1988, and retrofitted for use as a surface water management impoundment. (Docket No. 84, Ex. E at 030179–81.) The AOC now provides for continued use of the retrofitted western impoundment as an interim corrective measure (ICM) for the collection and storage of stormwater runoff from the northern portion of the Facility. ( Id. at 030180; AOC § VI(6)(j).)

The central surface impoundment (SWMU # 49) was closed as a hazardous waste management unit in 1989 by excavating contaminated soil, replacing it with clean fill, and constructing a low permeability cover which is maintained as part of a site cover operation and maintenance program. (Docket Nos. 84, Ex. 3 at 030181–83; 90 ¶ 16.)

FMC ceased using the eastern surface impoundment (SWMU # 50) as a surface water management unit in 1987. The Agencies approved the use of the eastern impoundment area for the temporary management of contaminated soils generated from off-Facility ICMs. ( Id. Ex. 3 at 030183; Ex. 4 at 28–29.) As of August 16, 2007, FMC and the Agencies were discussing whether the eastern impoundment should be designated as a corrective action management unit (CAMU), which is a specially designated area used for the long-term management of corrective action waste generated by other parts of the project. (Docket No. 90 ¶ 16.)

Final status of the impoundment areas will be determined through the AOC and any CMS performed. ( Id.) FMC has complied with the financial assurance requirements applicable to the estimated closure and post-closure care of the three impoundment areas, and the DEC has accepted FMC's financial assurance mechanism. ( Id. ¶ 17.)

b. The Roy–Hart Property

In 1996, the bleacher area of the Roy–Hart school property was remediated by removing soil to a depth of approximately 2 feet. (Docket No. 84, ex. 4 at 125.) The Roy–Hart football field, track, and school bus garage areas were remediated between June 1999 and September 2000 by removing soil from a depth of .5 feet to 14 feet and constructing new athletic fields. (Docket No. 84, Ex. 3 at 032955, 032962.) In total, soil was removed from approximately 8.5 acres. (Docket No. 84, Ex. 17 at GE0007234–36.)

By letter to the Roy–Hart Superintendent of Schools dated May 26, 2000, the DEC, on behalf of itself, the EPA, and the New York State Department of Health (DOH), advised that “the entire school yard is suitable for both athletic and non-athletic uses by all school children in terms of their exposure to known schoolyard soil arsenic levels.” (Docket No. 162–4 at 5–6 (emphasis in original).) In response to an inquiry from Plaintiffs' counsel, the Agencies, in October 2005, restated their May 2000 assessment and advised that no new information had been received that would cause the agencies to alter the prior risk assessment. (Docket No. 84, Ex. 17 at GE0007234–36.) By letter to the Roy–Hart School Board, dated November 3, 2009, the agencies again advised that they “continue to stand by that original [May 2000] determination, and we have no new information that would cause us to alter it with respect to the school children's exposure to school yard soil arsenic levels.” (Docket No. 162–4 at 1–2.)

However, the agencies went on to note that certain soil samples taken from the unremediated portions of school property exceed the 20 parts per million (ppm) arsenic background level expected in Middleport soils absent a contamination source. ( Id. at 2.) For that reason, the school property will be included in FMC's CMS. The CMS will evaluate what, if any, unremediated areas will require corrective...