Long Island Pure Water Ltd. v. Cuomo

• Decision Date: 22 March 2019
• Docket Number: 2:18-cv-727 (DRH)(ARL)
• Citation: 375 F.Supp.3d 209
• Parties: LONG ISLAND PURE WATER LTD., Plaintiff, v. Governor Andrew M. CUOMO, State of New York, N.Y. State Dep't of Envtl. Conservation, United States of America, United States Dep't of the Navy, Basil Seggos, in his official capacity as Commissioner of the N.Y. State Dep't of Envtl. Conservation, Martin Brand, in his official capacity as Deputy Commissioner of the N.Y. State Dep't of Envtl. Conservation, and Carrie Meek Gallagher, in her official capacity as Regional Director for Region 1 of the N.Y. State Dep't of Envtl. Conservation, Defendants.
• Court: U.S. District Court — Eastern District of New York

375 F.Supp.3d 209

LONG ISLAND PURE WATER LTD., Plaintiff,

v.Governor Andrew M. CUOMO, State of New York, N.Y. State Dep't of Envtl. Conservation, United States of America, United States Dep't of the Navy, Basil Seggos, in his official capacity as Commissioner of the N.Y. State Dep't of Envtl. Conservation, Martin Brand, in his official capacity as Deputy Commissioner of the N.Y. State Dep't of Envtl. Conservation, and Carrie Meek Gallagher, in her official capacity as Regional Director for Region 1 of the N.Y. State Dep't of Envtl. Conservation, Defendants.

2:18-cv-727 (DRH)(ARL)

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

Signed March 22, 2019

RIGANO LLC, 538 Broad Hollow Rd., Suite 217, Melville, NY 11747, By: Nicholas Charles Rigano, Esq., James P. Rigano, Esq., Attorneys for Plaintiff.

NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL, 28 Liberty Street, New York, NY 10005, By: Andrew G. Frank, Esq., Norman Spiegel, Esq., Attorneys for State Defendants.

U.S. ATTORNEY'S OFFICE FOR THE EASTERN DISTRICT OF N.Y., 610 Federal Plaza, Central Islip, NY 11722, By: Robert W. Schumacher, II, Attorney for Federal Defendants.

MEMORANDUM AND ORDER

Denis R. Hurley, Unites States District Judge

INTRODUCTION

Plaintiff Long Island Pure Water Ltd. ("Plaintiff") brought this action seeking injunctive relief and damages for violations of the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERLA") against Defendants Governor Andrew M. Cuomo, the State of New York, the New York State Department of Environmental Conservation ("NYSDEC"), Basil Seggos in his official capacity as Commissioner of the New York State Department of Environmental Conservation, Martin Brand in his official capacity as Deputy Commissioner of the N.Y. State Department of Environmental Conservation, and Carrie Meek Gallagher, in her official capacity as Regional Director for Region 1 of the N.Y. State Department of Environmental Conservation (all together the "State Defendants"), and the United States of America and the United States Department of the Navy ("Navy," together with the United States of America, "Federal Defendants," and together with the State Defendants, "Defendants").

Presently before the Court are the State Defendants' motion to dismiss pursuant to Fed. R. Civ. P ("Rule") 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim, as well as the Federal Defendants' motion to dismiss pursuant Rule 12(b)(1). For the reasons explained below, both the State Defendants' and the Federal Defendants' motions are granted and the matter is dismissed.

BACKGROUND

The following relevant facts are taken from the Amended Complaint ("Am. Compl.") and are assumed true for purposes of this decision.

This action concerns activities that commenced in the early 1940's on approximately 605 acres in Bethpage, New York (the "Bethpage Facilities"). (Am. Compl. ¶ 35.) The Navy operated the Naval Weapons Industrial Reserve Plant ("NWIRP") on 105 of the 605 acres. (Id. ¶ 36.) The NWIRP was government-owned and occupied, but contractor-operated. (Id. ) The remaining 500 acres were owned by Northup Grumman, formerly Grumman Aerospace Corporation and Grumman Aircraft Engineering Corporation ("Grumman"). (Id. ¶ 37.) Operations at the Bethpage Facilities included, "among other things, research, prototyping, testing, design engineering, fabrication, and primary assembly of military aircraft." (Id. ¶ 38.)

During many decades of operations at the Bethpage Facilities, Grumman and Defendant Navy "used, spilled, and/or otherwise discarded hazardous materials into the surrounding soils." (Id. ¶ 39.) Apparently, these hazardous materials eventually reached the groundwater, which spread the pollutants over a wide area creating a "Plume." (Id. ¶ 43.) Defendants do not dispute the existence of the Plume, or that it contains perchloroethene (tetrachloroethylene), trichloroethene, dichloroethenes, vinyl chloride, 1,1,1 trichloroethane. (Id. ¶ 45.) "Several public drinking water supply wells are known to be threatened by the Plume." (Id. ¶ 53.)

In 1983, the NYSDEC listed the Bethpage Facilities as a New York State Inactive Hazardous Waste Site. (Id. ¶ 46.) In 1993, the NYSDEC divided the Bethpage Facilities into the Grumman site and the 105-acre Navy NWIRP site. (Id. ¶ 47.) The Bethpage Facilities are currently listed as Class 2 Inactive Hazardous Waste Sites, meaning "the disposal of hazardous waste has been confirmed and the presence of such hazardous waste or its components or breakdown products represents a significant threat to public health or the environment." (Id. ¶ 48.)

Radium is a radioactive metal that exists in thirty four isotopes and is a hazardous waste when disposed. The maximum contaminant level ("MCL"), which is the legal threshold limit, for Radium-226 and Radium-228 is five picocuries per liter ("pCi/L"). (Id. ¶¶ 62–65.) Quantities exceeding this MCL in the drinking water supply are hazardous to human health and the environment. (Id. ) Radium has not been found to exceed the MCL naturally on Long Island. (Id. ¶ 67.) Apparently, Defendants have never released sampling results for Radium-226 or Radium-228 from the Plume. (Id. ¶ 77.)

The Bethpage local water district's public drinking water supply well 4-1 is located southeast of the Bethpage Facilities and in the direction of the groundwater flow. (Id. ¶ 69.) On August 4, 2012, the local water district detected Radium in well 4-1 at 4.72 pCi/L, just below the MCL of 5 pCi/L. (Id. ¶ 71.) In or around May 2013, the local water district shut down well 4-1 from service due to the detection of elevated Radium that was continuing to rise. (Id. ¶ 74.) On December 7, 2015, Radium was detected at well 4-1 at 5.92 pCi/L and 5.21 pCi/L. (Id. ¶ 76.)

In June 2017, the Bethpage School District released sampling results from three groundwater monitoring wells at Bethpage High School showing Radium detected at levels ranging from 10.46 pCi/L to 24.74 pCi/L. (Id. ¶ 82.) In August 2017, the Bethpage School District released sampling results from three groundwater monitoring wells at the High School showing Radium detected at levels ranging from 9.63 pCi/L to 23.95 pCi/L. (Id. ¶ 83.) Also in August, the Bethpage School District released sampling results from three groundwater monitoring wells at Central Boulevard Elementary School showing Radium detected at levels ranging from 12.19 pCi/L to 32.18 pCi/L. (Id. ¶ 84.) Plaintiff alleges that there are at least twelve additional samples taken in the Bethpage area from 2013 to 2016 detecting Radium levels ranging from 5.23 pCi/L to 8.59 pCi/L. (Id. ¶ 85.)

In addition to contaminating groundwater, Radium-226 decays to the radioactive gas Radon-222, which is a known carcinogen that "can move upwardly through soil and may impact indoor air quality[.]" (Id. ¶¶ 90, 91.) Radon generally occurs on Long Island at levels below 2.0 pCi/L. (Id. ¶ 99.) The recommended indoor air action level for Radon is 4.0 pCi/L. (Id. ¶ 100.) The Bethpage School District conducted isolated Radon sampling at the Bethpage High School and the Central Boulevard Elementary School, which revealed Radon levels of 3.8 pCi/L and 3.9 pCi/L, just below the threshold of 4.0 pCi/L. (Id. ¶ 103.) Plaintiff does not make any comment on the risks of Radon at level of 3.9 pCi/L, if any, but anything at or above 4.0 pCi/L would be a danger to human health and the environment. (See id. ) "Defendants have failed to formally investigate Radon contamination in the Bethpage area." (Id. ¶ 112.) Plaintiff also contends that the State Defendants contributed to the endangerment of the public and the environment by failing to take action required by law. (See, e.g. , id. ¶¶ 250–253.)

Plaintiff brought the instant action on February 1, 2018, and filed the Amended Complaint on April 12, 2018. The Amended Complaint sets forth three causes of action. The first claim is brought against all Defendants for violations of RCRA. (Id. ¶¶ 420–428.) The second claim is brought against the Federal Defendants for violations of CERCLA. (Id. ¶¶ 429–439.) The third claim is brought against all Defendants for injunctive relief "preventing Defendants from continuing the current violations" and seeking for Plaintiff's counsel to be appointed to oversee the cleanup efforts and to receive a commission equal to five percent (5%) of the total funds allocated for the Bethpage Facilities. (See id. ¶¶ 440–446.)

DISCUSSION

I. The State Defendants' Motion to Dismiss

a. Rule 12(b)(1) Legal Standard

"A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). "In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a ‘plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.’ " MacPherson v. State St. Bank & Trust Co. , 452 F.Supp.2d 133, 136 (E.D.N.Y. 2006) (quoting Reserve Solutions Inc. v. Vernaglia , 438 F.Supp.2d 280, 286 (S.D.N.Y. 2006) ), aff'd , 273 F. App'x 61 (2d Cir. 2008) ; accord Tomaino v. United States , 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010). "In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions." Cunningham v. Bank of New York Mellon, N.A. , 2015 WL 4104839, *1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat'l Australia Bank, Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) ).

A motion to dismiss for sovereign immunity under the Eleventh Amendment is properly brought pursuant to Rule 12(b)(1) as the Eleventh Amendment "reflects ‘the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Art. III.’ "...