Talarico Bros. Bldg. Corp. v. Union Carbide Corp.

• Decision Date: 26 April 2021
• Docket Number: 17-CV-1041S
• Court: U.S. District Court — Western District of New York
• Parties: TALARICO BROS. BUILDING CORP., et al., Plaintiffs, v. UNION CARBIDE CORP., et al., Defendants.

TALARICO BROS. BUILDING CORP., et al., Plaintiffs, v. UNION CARBIDE CORP., et al., Defendants.

17-CV-1041S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

April 26, 2021

DECISION AND ORDER

I. Introduction

This is a Resource Conservation and Recovery Act citizen suit, 42 U.S.C. § 6972 ("RCRA"), with related state tort claims by property owners in Niagara and Erie Counties, New York, against the present and former owners of chemical plants that allegedly released radioactive slag deposited on their properties (see Docket No. 26, Am. Compl. ¶¶ 1-6, 22-23, 36-38, 63, 70-78).

Before this Court is Defendants' Motion to Dismiss (Docket No. 29). For the reasons stated herein, Defendants' Motion to Dismiss (id.) is granted.

II. Background

Twenty-eight Plaintiffs¹ who own twenty affected properties collectively sue three chemical plant operators (Docket No. 26, Am. Compl. ¶¶ 10-31), alleging that Defendants Union Carbide Corporation, Occidental Chemical Corporation, and Bayer CropscienceInc. (or their predecessors, see id. ¶¶ 33-35) buried radioactive slag on their respective properties over the twentieth century (Docket No. 26, Am. Compl. ¶¶ 1, 49; see Docket No. 29, Defs. Memo. at 2).

Plaintiffs allege that radiation levels on their properties became subject to federal and state agency scrutiny since the 1970s, with reports concluding that there were "elevated levels of radiation" in and around those properties (Docket No. 29, Defs. Memo. at 4). They claim that they suffer from decreased property values, stigma damages, medical monitoring costs for unspecified conditions, and investigation and cleanup costs (Docket No. 26, Am. Compl. ¶ 47; see Docket No. 29, Defs. Memo. at 4). Plaintiffs conclude that Defendants placed the radioactive slag on Plaintiffs' properties, making what they term "an awful mess," and "that it was high time they clean it up" (Docket No. 34, Pls. Memo. at 1). Defendants note, however, that the Amended Complaint does not specify any present physical injuries to their properties (Docket No. 29, Defs. Memo. at 4).

The First Cause of Action is the citizen suit under RCRA for Defendants allegedly generating and depositing radioactive solid wastes on Plaintiffs' parcels (id. ¶¶ 71-73).

The Second Cause of Action alleges New York State common law strict liability based on ultrahazardous or abnormally dangerous activity (id. ¶¶ 80-81). The Third Cause of Action alleges common law negligence (id. ¶¶ 83-86). The Fourth Cause of Action alleges a private nuisance (id. ¶¶ 88-93). The Fifth Cause of Action then alleges a public nuisance (id. ¶¶ 95-98). Finally, the Sixth Cause of Action alleges trespass (id. ¶¶ 100-02).

Plaintiffs seek injunctive relief under RCRA, including ordering Defendants to fully evaluate each property and remove all radioactive solid wastes thereupon, awarding attorneys' fees (id. ¶ 103). Plaintiffs also seek recovery of monetary damages, including future costs for long-term medical monitoring to evaluate health risks association with exposure to radioactive waste; punitive damages; and such other and further relief (id.).

A. Motion to Dismiss (Docket No. 29)

Defendants moved to dismiss the Amended Complaint (Docket No. 29; see Docket No. 28, Order granting leave to file oversize memorandum)². The parties stipulated to a briefing schedule (Docket No. 12; see Docket No. 31, Order adopting schedule), with responses due January 30, 2018, reply by February 6, 2018. Plaintiffs moved (Docket No. 38) to strike Defendants' Reply or grant leave to file a Sur-Reply (Docket No. 36). The motion to strike was denied but leave to file a Sur-Reply was granted (Docket No. 46; see Docket No. 47, Plaintiffs' Sur-Reply).

III. Discussion

A. Applicable Standards

1. Motion to Dismiss

Defendants have moved to dismiss on the grounds that the Complaint fails to state a claim for which relief cannot be granted (Docket No. 17). Under Rule 12(b)(6) of theFederal Rules of Civil Procedure, this Court cannot dismiss a Complaint unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). As the Supreme Court later held in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant to Rule 12(b)(6) if it does not plead "enough facts to state a claim to relief that is plausible on its face," id. at 570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 45-46).

To survive a motion to dismiss, the factual allegations in the Complaint "must be enough to raise a right to relief above the speculative level," Twombly, supra, 550 U.S. at 555. As reaffirmed by the Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556 . . . . The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."' Id., at 557 . . . (brackets omitted)."

Iqbal, supra, 556 U.S. at 678 (citations omitted).

A Rule 12(b)(6) motion addresses to the face of the pleading. The pleading is deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985).

In considering such a motion, the Court must accept as true all the well pleaded facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments will not be accepted as true. New York State Teamsters Council Health and Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).

2. Pleading Requirement, Fed. R. Civ. P. 8

Federal Rule of Civil Procedure 8 requires a pleading afford Defendants "fair notice of what the plaintiff's claim is and the ground upon which it rests," Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) (summary Order) (citations omitted) (Docket No. 29, Defs. Memo. at 5). The pleading must state a short and plain statement of the grounds for jurisdiction, that the pleader is entitled to relief, and the demand for relief (including alternative forms), Fed. R. Civ. P. 8(a)(1)-(3). Again, under Iqbal, supra, 556 U.S. at 678, these allegations need to have sufficient facts to plausibly state a claim on its face (id.).

3. RCRA

RCRA "'is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste,'" George v. Reisdorf Bros., Inc., 696 F. Supp. 2d 333, 342 (W.D.N.Y. 2010) (McCarthy, Mag. J.) (on consent, quoting Incorporated Village of Garden City v. Genesco, Inc., 596 F. Supp. 2d 587, 593 (E.D.N.Y. 2009)).

To maintain a citizen suit under Section 113(h) of Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(h), or Section6972(b)(2)(B)(ii) of RCRA, Plaintiffs need to allege that Defendants were generators or transporters of "solid or hazardous waste," or owners or operators of a treatment, storage, or disposal facility; that Defendants contributed to past or present handling, storage, treatment, transportation, or disposal of solid or hazardous waste; and that the waste may present an "imminent and substantial endangerment to health or the environment," 42 U.S.C. § 6972(a)(1)(B) (Docket No. 29, Defs. Memo. at 26).

"Hazardous waste" is defined in RCRA as

"a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may-

"(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

"(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed."

Id. § 6903(5).

"Solid waste," in turn, is defined as

"any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923)."

Id. § 6903(27) (emphasis added). Defendants also assert that this waste must be discarded to meet the statutory definition (Docket No. 36, Defs. Reply Memo. at 27).

Therefore, certain radioactive materials are exempt from the RCRA definitions of "solid or hazardous waste," id.; such waste is governed exclusively or collectively underthe Atomic Energy Act. The Atomic Energy Act, in turn, defines "source material" to include uranium or thorium or any combination thereof, 10 C.F.R. § 40.4 (see Docket No. 34, Pls. Memo. at 27; Docket No. 36, Defs. Reply Memo. at 9).

EPA regulations define "hazardous waste...