Smith v. Potter

Decision Date01 July 2002
Docket NumberNo. 01 Civ. 9512(JFK).,01 Civ. 9512(JFK).
Citation208 F.Supp.2d 415
PartiesWilliam M. SMITH, as President and on behalf of the New York Metro Area Postal Union, APWU, AFL-CIO and Dennis O'Neil, Plaintiffs, v. John E. POTTER, Postmaster General of the United States, Defendant.
CourtU.S. District Court — Southern District of New York

Lewis, Greenwald, Clifton & Nikolaidis, P.C., New York City (Louie Nikolaidis, Peter Henner, of counsel), for Plaintiffs.

James B. Comey, United States Attorney for the Southern District of New York, New York City (Daniel S. Alter, Sheila M. Gowan, Assistant United States Attorneys, of counsel), for Defendant.

OPINION and ORDER

KEENAN, District Judge.

Before the Court are the following motions: (1) motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed. R.Civ.P. 12(b)(6) for failure to state a claim, filed on behalf of defendant, John E. Potter, Post Master General of the United States ("USPS"); and (2) motion to compel inspection and testing of the Morgan Processing and Distribution Center ("Morgan"), pursuant to Fed.R.Civ.P. 34, by plaintiffs, William M. Smith, New York Metro Area Postal Union and Dennis O'Neil ("Plaintiffs"). The motions are opposed and the Court heard oral argument on them on March 12, 2002. For the reasons stated herein, the Court grants the USPS's motion to dismiss the complaint in its entirety and denies as moot Plaintiffs' Rule 34 inspection motion.

Background

On or about September 20, 2001, mail contaminated with "bacillus anthracus," i.e., anthrax, was processed at the Morgan facility, the mail-processing center serving the New York metropolitan area. See Compl. ¶ 18; Smith v. Potter, 187 F.Supp.2d 93, 94 (S.D.N.Y.2001). During processing of the tainted mail, anthrax spores were released at that site. See Compl. ¶¶ 20-21. The USPS first became aware of a potential threat of anthrax contamination at New York postal facilities on October 19, 2001 after the Centers for Disease Control ("CDC") advised that anthrax-tainted letters were mailed to various New York media outlets. See Declaration of Daniel S. Alter, dated January 11, 2002 ("Alter Dec."), Ex. A at 2; Smith, 187 F.Supp.2d at 96. Immediately thereafter, USPS officials arranged for anthrax testing at Morgan and postal facilities downstream of Morgan. See Smith, 187 F.Supp.2d at 94. This testing revealed the presence of anthrax spores on five pieces of mail-sorting equipment on the third floor in the south building of the Morgan facility. See id. As a result of the anthrax contamination, the USPS made available antibiotic prophylaxis (Cipro and Doxycyclene) as well as protective gear to over 7,000 postal employees in New York. See id. at 95-96. The USPS, in conjunction with various other federal agencies, commenced cleanup operations, including closing down the affected area and retaining environmental specialists to assist in an anthrax removal project. See id. at 96. Thus far, the USPS has incurred over $15 million in investigation and cleanup costs. See Alter Dec., Ex. A at 1.

On October 29, 2001, Plaintiffs filed this suit by order to show cause, requesting a preliminary injunction and alleging that the USPS was conducting its New York City postal operations in violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq., and New York State environmental laws on account of, among other things, the USPS's "handling, storage, treatment transportation, or disposal of a hazardous waste." Compl. ¶¶ 60, 65 & 81. In their complaint, Plaintiffs also alleged a common law public nuisance cause of action, a claim that Plaintiffs have since voluntarily dismissed pursuant to Fed.R.Civ.P. 41(a). See Notice of Voluntary Dismissal of Fifth Cause of Action (Public Nuisance), dated February 1, 2002.

In early November of 2001, an evidentiary hearing was conducted over several days in relation to Plaintiffs' preliminary injunction motion, which sought mandatory injunctive relief to compel the USPS to shut-down and decontaminate the Morgan facility, to test the James A. Farley postal facility ("JAF"), a post office immediately adjacent to the Morgan facility and connected to it by tunnel, and to test all "downstream" postal facilities serviced by Morgan. See Smith, 187 F.Supp.2d at 94. Upon consideration of the evidence adduced at the hearing, I denied Plaintiffs' preliminary injunction motion, finding that the USPS had instituted appropriate remedial measures to diminish any safety risk created by the presence of anthrax at the Morgan facility. See id. at 96. Specifically, the Opinion and Order of November 9, 2001 held that: "Thanks to the remedial actions employed, the continued operation of the Morgan facility poses no imminent and substantial risk to health or the environment." Id. This holding was predicated, in part, on the fact that no New York postal worker contracted anthrax during the five-week period before the USPS learned of the possibility of anthrax contamination and prior to when the CDC began its investigation of the Morgan-mail trail. See id. To date, thankfully no New York postal worker has experienced any anthrax-related health problems as a result of the tainted mail that passed through the Morgan facility.

Discussion
A. Fed.R.Civ.P. 12(b)(6) and 12(b)(1) Standards

On review of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a court must accept the plaintiff's allegations of fact as true, and draw all reasonable inferences in the plaintiff's favor. See Hines v. F.J.C. Security Co., No. 96 Civ. 2632, 1998 WL 60967, at *1 (S.D.N.Y. Feb. 13, 1998) (citing Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Similarly, review of a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) requires a court to "accept as true all material factual allegations in the complaint." Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). When the question to be considered is one involving the jurisdiction of a federal court, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Financial Servs. Corp., 140 F.3d at 131 (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Moreover, a court may consider materials outside the pleadings, like affidavits and testimony, to resolve issues concerning the existence of jurisdiction. See Robinson v. Government of Malaysia, 269 F.3d 133, 141-42 (2d Cir.2001).

B. Imminent and Substantial Endangerment Claim (Count 1)

In count I of their complaint, Plaintiffs allege that operation of the Morgan facility poses an imminent and substantial danger to public health and the environment in violation of the citizen suit provision of 42 U.S.C. § 6972(a)(1)(B) due to the USPS's handling of the anthrax contamination at that site. On this claim, Plaintiffs seek, among other things, injunctive relief requiring testing, cleaning, inspection and controlled operations of postal facilities. See Compl. ¶¶ C-F. Section 6972(a)(1)(B) permits a civil suit against any person or entity, including the United States, "who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B) (herein referred to as "imminent-hazard" claim).

Back in November of 2001, in opposing Plaintiffs' motion for a preliminary injunction, the USPS argued that Plaintiffs could not obtain RCRA relief because the anthrax found at the Morgan facility did not constitute "solid waste" as defined by the Act, 42 U.S.C. § 6903(27),1 because it, the anthrax, had not been discarded within the meaning of the statute. See Def.'s Memorandum of Law in Opposition to Pls.' Motion for a Preliminary Injunction at 7-9. In deciding the preliminary injunction motion, there was no need to reach the issue of whether the anthrax found at the postal plant constituted solid waste in view of the finding that no imminent and substantial endangerment to health or the environment existed so as to entitle Plaintiffs to an injunction pursuant to Section 6972(a)(1)(B). See Smith, 187 F.Supp.2d at 98. In spite of its initial position, the USPS now concedes that the anthrax discovered at Morgan does constitute "solid waste" as defined by RCRA. See 42 U.S.C. § 6903(27).2

With respect to the imminent-hazard claim, the USPS argues that this claim is jurisdictionally barred under the RCRA/CERCLA3 statutory scheme because, upon discovery of the anthrax at the Morgan facility, the USPS immediately initiated a CERCLA Section 104 removal action to eliminate the contamination. Section 113(h) of CERCLA precludes federal courts from exercising jurisdiction (subject to certain exceptions not applicable here) over actions that attack the adequacy of CERCLA Section 104 removal actions: "No Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under section 104 of this title, ... in any action except one of the following ...." 42 U.S.C. § 9613(h). Subsection 6972(b)(2)(B)(ii) of RCRA likewise provides:

No action may be commenced under subsection (a)(1)(B) of this section if the [EPA] Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment—

(ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [CERCLA].

42 U.S.C. §...

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    ...would interfere with CERCLA cleanup as it “for all practical purposes, seeks to improve on the CERCLA cleanup”); Smith v. Potter, 208 F.Supp.2d 415, 421–22 (S.D.N.Y.2002). 16. Plaintiffs' attempt to distinguish several of the cases cited by defendants is unavailing. See Pls.' Opp'n 38–39. A......
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    ...York has previously held that "testing and other investigative measures" qualify as a removal action under § 104. Smith v. Potter , 208 F.Supp.2d 415, 420 (S.D.N.Y. 2002). Again, this appears to be a question of law that is underdeveloped in this Circuit and others. Here, the Court finds th......
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