Lewis v. FMC Corp.
786 F. Supp. 2d 690
W.D.N.Y.2011Background
- Plaintiffs filed a 2004 citizen suit in the Western District of New York against FMC Corporation alleging RCRA, CWA, and state-law claims related to contamination at FMC's Middleport, NY facility.
- FMC moved to preclude Plaintiffs' expert Dr. Iyer and for summary judgment; the court granted in FMC's favor on all issues.
- The Middleport site comprises about 91 acres; the northern half is heavily contaminated due to pre-1974 waste practices, with 54 SWMUs identified.
- An Administrative Order on Consent (AOC) from 1991 between EPA, DEC, and FMC requires interim corrective measures, a RCRA Facility Investigation, a groundwater monitoring program, and continued use of certain impoundments as interim corrective measures.
- Key areas include three surface impoundments (west, central, east), Roy-Hart school property, the Northern Ditches, Area 2, and surrounding residential properties west of the Facility; remediation has progressed in phases, with some areas remediated and others included in CMS for future corrective actions.
- The court held that FMC's summary-judgment motion should be granted in its entirety and that Dr. Iyer's expert testimony would not be considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs can establish imminent and substantial endangerment under RCRA §6972(a)(1)(B). | Plaintiffs contend contamination poses near-term risk requiring relief. | FMC asserts no imminent and substantial endangerment exists; expert testimony unreliable. | Garned for FMC; no genuine endangerment shown; summary judgment granted. |
| Whether FMC's on-site surface impoundments constitute open dumping under RCRA. | Plaintiffs allege ongoing open-dumping violations at impoundments. | Historical closure of impoundments and state program compliance negate claim. | Held for FMC; open-dumping claims dismissed as a matter of law. |
| Whether FMC's off-site open dumping claim regarding the Northern Ditches and Area 2 survives. | Disposal in surface waters constitutes open dumping. | Off-site disposal via beneficially regulated plans does not violate open-dumping rule. | Held for FMC; off-site open-dumping claim dismissed. |
| Whether Plaintiffs have standing to pursue on-site and off-site stormwater discharges under the CWA. | Plaintiffs demonstrate injury from discharges and exposure; letters indicate potential harm. | Plaintiffs fail to show standing causally connected to FMC discharges. | Lack of standing; dismissal of fourth and fifth claims. |
| Whether SPDES violations are actionable under RCRA citizen-suit theory given standing issues. | Ongoing SPDES violations show harm and liability under CWA/RCRA. | No standing; no causal link established; federal claims fail. | Summary judgment granted on SPDES claim due to lack of standing. |
Key Cases Cited
- Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009) (broad "may" endangerment standard; near-term risk sufficient to warrant relief)
- Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991) (imminent and substantial endangerment definition guidance)
- Meghrig v. KFC Western, Inc., 516 U.S. 479 (U.S. 1996) (imminent and substantial endangerment concept articulated by Supreme Court)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (U.S. 1993) (gatekeeping standard for reliability of expert testimony)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard; credible evidence required to create triable issue)