Racer Props. v. Nat'l Grid U.S.

• Docket Number: 5:18-CV-1267
• Decision Date: 08 July 2022
• Parties: RACER PROPERTIES LLC and EPLET, LLC, not individually but solely in its representative capacity as Administrative Trustee of Revitalizing Auto Communities Environmental Response Trust, Plaintiffs, v. NATIONAL GRID USA, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

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RACER PROPERTIES LLC and EPLET, LLC, not individually but solely in its representative capacity as Administrative Trustee of Revitalizing Auto Communities Environmental Response Trust, Plaintiffs,
v.
NATIONAL GRID USA, et al., Defendants.

No. 5:18-CV-1267

United States District Court, N.D. New York

July 8, 2022

KNAUF SHAW LLP Attorneys for Plaintiffs ALAN J. KNAUF, ESQ., LINDA R. SHAW, ESQ., AMY K. KENDALL, ESQ., JONATHAN R. TANTILLO, ESQ., MELISSA VALLE, ESQ.

PRETI FLAHERTY BELIVEAU & PACHIOS, LLP, Attorneys for Plaintiff Racer Properties LLC JEFFREY D. TALBERT, ESQ., DAVID B. VAN SLYKE, ESQ., LAURA A. RIDEOUT, ESQ.

BARCLAY DAMON LLP-ALBANY Attorneys for Defendants National Grid USA and Niagara Mohawk Power Corporation YVONNE E. HENNESSEY, ESQ.

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DAY, PITNEY LAW FIRM-HARTFORD Attorneys for Defendants Carrier Corporation, United Technologies Corporation, and Carlyle Air Conditioning Company Inc. ERICK M. SANDLER, ESQ., ELIZABETH C. BARTON, ESQ.

YOUNG, SOMMER LAW FIRM Attorneys for Defendant General Electric Company DEAN S. SOMMER, ESQ., KRISTIN CARTER, ROWE, ESQ.

MORGAN, LEWIS LAW FIRM-NY Attorneys for Defendant Bristol-Meyers Squibb Company, BERNARD J., GARBUTT, III, ESQ.

MORGAN, LEWIS LAW FIRM Attorneys for Defendant Bristol-Meyers Squibb Company, GLEN R. STUART, ESQ., ADINA D. BINGHAM, ESQ.

RUPP, BAASE LAW FIRM-BUFFALO Attorneys for Defendants Thompson Corners, LLC, 6181 Thompson Road, LLC, Thompson Lawn, LLC, and Thompson NW, LLC JOHN T. KOLAGA, ESQ.

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HINMAN, HOWARD LAW FIRM Attorneys for Defendants Metalico Syracuse Realty, Inc. and Metalico New York, Inc. ALBERT J. MILLUS, Jr., ESQ.

GODFREY & KAHN, SC Attorneys for Defendant Gardner Denver, Inc. DANIEL FLAHERTY, ESQ., DANIEL NARVEY, ESQ.

GARY S. BOWITCH Attorneys for Defendant Gardner Denver, Inc. GARY S. BOWITCH, ESQ.

WOODS OVIATT GILMAN LLP ONX1 LLC Attorneys for Defendant DONALD W. O'BRIEN, Jr. ESQ.

NIXON, PEABODY LAW FIRM-ALBANY Attorneys for Defendant Onondaga Pottery Company, Inc. ANDREW C. ROSE, ESQ., DANA P. STANTON, ESQ.

KENNEY, SHELTON LAW FIRM Attorneys for Defendant Amparit Industries, LLC LORI E. PETRONE, ESQ.

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FOGEL & BROWN, P.C. Attorneys for Defendants Carrier Circle Business Complex LLC, Syracuse Lepage LLC, and North Midler Properties LLC MICHAEL A. FOGEL, ESQ., PATRICK D. DONNELLY, ESQ.

WHITEMAN, OSTERMAN LAW FIRM Attorneys for Defendant Telesector Resources Group, Inc. PHILIP H. GITLEN, ESQ.

ALSTON, BIRD LAW FIRM-NY Attorneys for Defendant Western Electric Company, Incorporated and Nokia of America Corporation DAVID VENDERBUSH, ESQ.

ALSTON, BIRD LAW FIRM-ATLANTA Attorneys for Defendant Western Electric Company, Incorporated and Nokia of America Corporation MEAGHAN G. BOYD, ESQ.

JONES, DAY LAW FIRM-CHICAGO Attorneys for Defendant Lennox Industries Inc. CHARLES T. WEHLAND, ESQ.

JONES, DAY LAW FIRM-NEW YORK Attorneys for Defendant Lennox Industries Inc. ALLISON L. WAKS, ESQ.

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BROWN DUKE & FOGEL, P.C. Attorneys for Defendants Syracuse Deere Road Associates, LLC and Hauler's Facility LLC GREGORY M. BROWN, ESQ.

LINDA E. ALARIO Attorneys for Defendant Jagar Enterprises, Inc. LINDA E. ALARIO, ESQ.

HARTER, SECREST LAW FIRM Attorneys for Defendants Calocerinos and Spina and C&S Engineers, Inc. PAUL D. SYLVESTRI, ESQ., PETER H. ABDELLA, ESQ.

TALARICO LAW FIRM Attorneys for Defendant B&B Family Limited Partnership JOSEPH R. TALARICO II, ESQ.

GEOFFREY J. MICHAEL Attorneys for Defendant Honeywell International Inc. GEOFFREY J. MICHAEL, ESQ.

ARNOLD, PORTER LAW FIRM-DC Attorneys for Defendant Honeywell International Inc. LAUREN COLE DANIEL, ESQ.

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HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER Attorneys for Defendant Lockheed Martin Corporation STEVEN T. MIANO, ESQ., PETER V. KEAYS, ESQ., ROBERT A. WIYGUL, ESQ.

THE LAW OFFICE OF DOUGLAS H. ZAMELIS Attorneys for Defendant Northeast Management Services, Inc. DOUGLAS H. ZAMELIS, ESQ.

WESTFALL LAW PLLC Attorneys for Defendant Northern Industrial Holdings, LLC MELODY D. WESTFALL, ESQ.

MEMORANDUM-DECISION AND ORDER

DAVID N. HURD, United States District Judge.

I. INTRODUCTION

On October 26, 2018, plaintiffs Racer Properties LLC (“Racer Properties”) and EPLET, LLC (“EPLET” and with Racer Properties “plaintiffs”) on behalf of Revitalizing Auto Communities Environmental Response Trust (“RACER”) filed a complaint in this District. At its core, plaintiffs' complaint sought money damages to recover the expenses they accrued cleaning pollution caused by dozens of defendant companies (together “defendants”) over dozens of years at Onondaga Lake near Syracuse, New York.

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That complaint has since been amended twice, but at present plaintiffs assert ten claims for relief against defendants: (1) cost recovery under 42 U.S.C. § 9607(a) (“§ 107”) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”); (2) contribution under 42 U.S.C. § 9613(f) (“§ 113”) of CERCLA; (3) response costs and damages under § 181(5) of the New York Navigation Law; (4) contribution under § 176(8) of the New York Navigation Law; (5) negligence under New York common law; (6) public nuisance under the New York common law; (7) restitution under the New York common law; (8) contribution or indemnification under New York common law; (9) declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201; and (10) a second claim for contribution under § 113 based on events taking place after the first amended complaint had been filed.

On February 16, 2022, defendants moved to dismiss the Second Amended Complaint. That motion, having been fully briefed, will now be decided on the submissions and without oral argument.

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II. BACKGROUND^[1]

Onondaga Lake has long been infamous for its pollution. Revitalizing Auto Cmtys. Ennv't Response Tr. v. Nat'l Grid USA (“RACER I'), 2020 WL 2404770, at *2 (N.D.N.Y. May 12, 2020). As a result, it comes as little surprise that in 1993 the lake and its immediate environs were added to the National Priorities List of potential CERCLA sites to kickstart a cleanup. Revitalizing Auto Cmtys. Ennv't Response Tr. v. Nat'l Grid USA (“Racer II'), 10 F.4th 87, 93 (2d Cir. 2021).

But explaining how Onondaga Lake came to be so polluted requires taking a step back. Beginning in the mid-1950s, automotive manufacturer General Motors (“GM”) built car parts out of the Syracuse Inland Fisher Guide Plant (the “IFG Plant”). Dkt. 334 (“SAC”) ¶¶ 392, 394. Building those parts required hydraulic oils containing substances called polychlorinated biphenyls (“PCBs”), which are apparently particularly destructive to the environment. SAC ¶¶ 394-96.

In the course of disposing of its waste, the IFG Plant caused PCBs to enter the watershed of Ley Creek. SAC ¶¶ 394-96. Ley Creek, in turn, is one of

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Onondaga Lake's tributaries. SAC ¶ 1. It is also one of the most significant sources of its pollution. See id.

The IFG Plant was situated well upstream-that is, to the east-of Onondaga Lake. See Dkt. 334-19, p. 4. In fact, its property abuts Townline Road, where Ley Creek begins. Id. From the IFG Plant, Ley Creek travels under the LeMoyne Avenue Bridge, before flowing past the Route 11 Bridge furthest to the west. See SAC ¶ 64; Dkt. 334-19, p. 4. Of course, though plaintiffs acknowledge that the IFG Plant caused PCBs to enter the Ley Creek watershed, SAC ¶ 395, they also attribute that pollution to defendants, see id., passim.

As a result, the State of New York began to put pressure on GM to clean up after itself some time around 1985. See SAC ¶¶ 399-400. Ultimately, the New York State Department of Environmental Conservation (“NYSDEC”) and GM entered into a consent decree that year to investigate and then redress the pollution at the IFG Plant. Id. ¶ 400.

That consent decree proved to be the first of many. See SAC ¶¶ 405-10. Working in concert with New York, GM slowly began to work towards cleaning up the pollution at and resulting from the IFG Plant. RACER II, 10 F.4th at 94. Eventually, and perhaps due to the strain of trying to remediate the area, GM shut down the IFG Plant in 1993, around the same

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time Onondaga Lake was added to the National Priorities List. SAC ¶¶ 397-404; see RACER II, 10 F.4th at 93-94.

On June 1, 2009, GM declared bankruptcy. RACER 1, 2020 WL 2404770, at *2. But of course, GM's lack of funding did not make the environmental consequences of its long-term business practices disappear. See id. Instead, the Saint Regis Mohawk Tribe joined New York and pursued GM in bankruptcy court, hoping to find a solution to ensure that the Onondaga Lake cleanup continued apace. Id.

The Environmental Protection Agency for the United States of America (the “EPA”) was also after GM at the same time, and filed a Proof of Claim alleging nationwide pollution against it on November 30, 2009. Dkt. 346-2, p. 2. A second proof of claim followed on March 1, 2011. Dkt. 346-3, p. 3.

On March 29, 2011, the EPA, New York, and the Saint Regis Mohawk Tribe (together the “Governments”) entered into yet another consent decree with GM (the “2011 Agreement”). RACER 1, 2020 WL 2404770, at *3. Functionally, the 2011 Agreement set aside about $31 million to remediate the area polluted by the IFG Plant. Id. RACER was created to carry on GM's work on that project, EPLET was formed to operate as RACER's trustee, and Racer Properties holds the title to the IFG Plant. Id. at *3, 7. Because trusts cannot take legal action on their own, EPLET signed the 2011 Agreement on RACER's behalf. RACER II, 10 F.4th at 94.

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Thus, plaintiffs found themselves charged with finishing at least a portion of GM's work remediating the pollution caused by the IFG Plant. From a purely geographical perspective, there are (at least) two ways to look at the area entrusted to plaintiffs to remediate.

First, there is the functional definition, which divides the IFG Plant into two distinct...