White Plains Hous. Auth. v. BP Prods. N. Am.

• Decision Date: 19 December 2022
• Docket Number: 17-cv-6250 (NSR)
• Parties: WHITE PLAINS HOUSING AUTHORITY, Plaintiff, v. BP PRODUCTS NORTH AMERICA INC., MARIANINA OIL CORP., and ATLANTIC RICHFIELD COMPANY, Defendants.
• Court: U.S. District Court — Southern District of New York

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WHITE PLAINS HOUSING AUTHORITY, Plaintiff, v. BP PRODUCTS NORTH AMERICA INC., MARIANINA OIL CORP., and ATLANTIC RICHFIELD COMPANY, Defendants.

No. 17-cv-6250 (NSR)

United States District Court, S.D. New York

December 19, 2022

OPINION & ORDER

NELSON S. ROMAN, United States District Judge

Plaintiff White Plains Housing Authority (“Plaintiff” or “WPHA”) brings this action against Marianina Oil Corporation (“Defendant”),^[1],^[2] asserting claims under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. and the New York Navigation Law (“NYNL”), N.Y Nav. Law § 181(5), as well as state common law claims for negligence, private nuisance, and trespass. (ECF No. 59.) Plaintiff alleges that its property was contaminated by discharges of gasoline and toxic-biproducts of gasoline emanating from a former gasoline station at 34 East Post Road, White Plains, New York (the “Service Station”), which was owned and operated by Marianina Oil Corporation. (Id.)

In the Court's August 27, 2020 Order and Opinion, the Court found that Defendant is liable under the RCRA, the New York Navigation Law, as well as negligence, private nuisance, and trespass under New York law. See White Plains Hous. Auth v. BP Prod. N. Am. Inc., 482 F.Supp 3d 95 (S.D.N.Y. 2020). On September 20, 2020, Marianina filed for bankruptcy. (ECF No. 191 at 2.) On October 30, 2020, Magistrate Judge McCarthy issued a bench order stating that WPHA's claims for damages under state law were stayed by the bankruptcy filing but that the action seeking an injunction under the RCRA could continue. (Minute Entry, Oct. 30, 2020.) On August 31, 2021, the New York State Department of Environmental Conservation (“DEC”) entered into an executed administrative order with the Defendant that incorporates a work plan for remediation of the contamination. (See ECF No. 195, (“Lefkowitz Decl.”) Exh. B (“August 2021 Consent Order”)).

Now before the Court is Plaintiff's motion to preclude two “unauthenticated” drawings of a parking garage as well as expert testimony referencing those drawings. (See ECF Nos. 190, 191, 196.) The Court is also presented with Defendant's cross-motion to dismiss or in the alternative, to stay the action pursuant to 42 U.S.C. § 6972(b), which bars RCRA citizen suits where the state agency has commenced and is diligently prosecuting an action under subsection (a)(1)(B) of this section; and (ii) the doctrine of primary jurisdiction, given that DEC has already issued the August 2021 Consent Order and that remedial efforts are already underway pursuant to a Remedial Work Action Plan (the “RAWP”). (See ECF Nos. 193, 194, 197, 198.)

For the following reasons, the Court RESERVES judgment on Plaintiff's motion to preclude and DENIES Defendant's motion to dismiss or stay in the alternative.

BACKGROUND

I. Factual Background

The Court assumes familiarity with the underlying facts discussed in the Court's August 27, 2020 Order and Opinion on Plaintiff's motion for summary judgment. See White Plains Hous. Auth. v. BP Prod. N. Am. Inc., 482 F.Supp.3d 95 (S.D.N.Y. 2020).

As a summary, WPHA brings suit under the RCRA seeking remediation from the gasoline contamination that came from Defendant's Service Station, which has affected both soil and groundwater at the Service Station and at WPHA's property. As discussed in the Court's August 27, 2020 Order and Opinion, with respect to direct contamination to WPHA's property, WPHA's environmental consultant opined that “in approximately 6.6 years, the plume from the Service Station will reach Building 33 at concentrations that will cause vapor intrusion to tenants” and “it would not be safe to simply do nothing to remediate the area between the Service Station and [WPHA's] Building 33.” See White Plains Hous. Auth. 482 F.Supp. at 113. Building 33 is one of the five public housing apartment buildings in WPHA's Winbrook Apartments complex, and WPHA's parking lot and Building 33 are directly adjacent to, and to the north/northwest of, the Service Station. See White Plains Hous. Auth., 482 F.Supp. at 105. The distance between the Service Station's property line and Building 33 is approximately 200 feet. Id.

WPHA also faces economic impact of the contamination, namely, that it currently removed Building 33 from its plans to renovate the Winbrook Apartments complex due to the contamination in the vicinity of the building, which in turn reduces the total number units to be developed from 776 units to 530 units. WPHA is therefore concerned it will lose income-producing rental units. Id. at 113-14. Testimony indicated that, if there was no contamination, Building 33 could be placed back in the master development plan. Id. at 114.

Since the Court's August 27, 2020 Order and Opinion, Defendant has now entered into the August 2021 Consent Order and has provided the DEC with a RAWP, dated September 3, 2021, which the DEC has approved. (See August 2021 Consent Order; Lefkowitz Decl., Exh. C1 and C2 (the “RAWP”); Exh. K (subsequent emails with the DEC).) The August 2021 Consent Order incorporates an approved-upon RAWP, and indicates that “[Defendant] shall implement and complete the Workplan as approved. If [Defendant] is unable to or fails to complete the Cleanup, the Department shall undertake any remaining work for the cleanup under the spills program.” (August 2021 Consent Order at I.2.) The August 2021 Consent Order also states that “[Defendant] shall use ‘best effort' to obtain all Site access, permits, easements, rights-of-way, rights-of-entry, approvals; institutional controls, or authorizations necessary to perform the obligations under this Order.” (August 2021 Consent Order, at V.) Lastly, the August 2021 Consent Order imposes a $50,000 penalty against Defendant. (Id. at IV.)

The RAWP, dated September 3, 2021, provides a work plan with respect to remediation at the Service Station and the WPHA property (the “WPHA Site”). The RAWP was developed by Defendant's environmental consultant and expert, William Canavan from HydroEnvironmental Solutions, Inc and considers findings and recommendations from Defendant's experts as well as WPHA's environmental consultant, First Environmental, Inc. The RAWP states that “highest concentrations [of contamination] is located on the Service Station site in an area approximately 70-feet wide by 70-feet long by 8-to-10 feet deep.” (RAWP at 3.) With respect to the WPHA property, the RAWP states that “[t]esting over the past six years has shown that the gasoline spill at the [Service Station] Site has minimally impacted an approximate 3,479-square-foot area on the neighboring WPHA Property.” Id. at 4. The RAWP also discusses the ways in which the recommendations of WPHA's environmental consultant, First Environmental, Inc., purportedly exceed what is necessary to deal with impacted areas. See, e.g., id. at 3 (“The proposed soil excavation area comprises about 1,000 tons, and is depicted by the light-blue polygon on Figure 2 attached, but stands in contrast to the area shown in red hatch-depicting First Environment's proposed excavation area. First Environment claims this red area, totaling 5,400 square feet, must be completely excavated, even though there are few samples from within this area, and those that were taken just outside the area are within Department exceedance standards.”); Id. at 5 (“First Environment's proposed impact area is excessive by another measure. It proposes excavation of the entire red-hatched area based on projections of movement of the plume, without any consideration of natural attenuation or conditions that will result from removal of the primary source on the [Service Station site], and partial excavation on the WPHA Property ....”).

The RAWP presents two remediation options, with Option 1 being the DEC's current approved plan. (See RAWP at 6; see also ECF No. 199 (“Desmond Aff.”) at Ex. A. (September 1, 2022 DEC email stating that the RAWP's option 1 is the approved current plan”).) Option 1 proposes de-watering and mass excavation of the Service Station site, which includes the following:

“excavate, remove, and dispose of approximately 3,000 tons of soil in the source area. This area totals approximately 70 feet wide by 70 feet long by 8-to-10 feet deep. This is the area where free-phase gasoline and elevated concentrations of BTEX compounds were detected in both the soil and the groundwater. It is also the area immediately upgradient of the WPHA Property, and the source of migrating dissolved gasoline constituents in groundwater. The underground storage tanks onsite have been out of service for greater than 12 months and will be removed.

Excavation on the site will continue until all soil exhibiting petroleum impacts are removed.”

(RAWP at 6.)

With respect to the WPHA Property, Option 1 will require Off-Site Soil Excavation which is “guided by the premise that there are relatively lower levels of contaminants, and that the BTEX and MTBE [which are certain types of gasoline constituent] plume is naturally attenuating.” (RAWP at 7.). In addition, “[t]he remediated portion of the WPHA Property would also include non-residential restrictive use. Thus, the RAWP proposes “excavating soil moving from the [Service Station] excavation area towards and onto the WPHA Property up to roughly 10 to 20 feet of monitoring well MW-201, at a depth of 8 to 10 feet.” (Id.) Moreover, Option 1 proposes that “post-excavation end-point soil samples will be collected, as required, from the bottom and sidewalls of the proposed off-site excavation and will be analyzed for VOCs at a NYS certified laboratory to include EPA Method 8270 and be compared to CP-51^[3] soil guidance values.” (Id.) In addition, “[t]he end-point soil results will be compared to NYSDEC...