351 F. Supp. 3d 342
W.D.N.Y.2018Background
- Plaintiffs are four property owners in Corning, NY who sued Corning Inc. under CERCLA and New York common law for contamination of the "Houghton Plot" by fill containing arsenic, cadmium, lead and other hazardous substances deposited years before plaintiffs purchased their properties.
- DEC and Corning entered administrative orders: a 2014 consent-order study, a Weston FFS recommending a 2-foot excavation, a 2017 DEC Final Decision Document adopting the 2-foot remedy, and a 2017 Order on Consent requiring Corning to implement the DEC-approved remedy and submit a Remedial Action Work Plan.
- Plaintiffs seek response costs under CERCLA, negligence, strict liability (abnormally dangerous activity), private nuisance, public nuisance, and injunctive relief compelling remediation beyond the DEC-approved two-foot excavation.
- Corning moved to dismiss the common-law claims and to dismiss or stay injunctive relief and CERCLA damages claims based on failure to exhaust administrative remedies and the primary-jurisdiction doctrine (deference to DEC).
- The court found DEC has technical expertise and statutory authority over remediation, concluded primary jurisdiction and risk of inconsistent rulings favor deferring to DEC, dismissed all state-law claims, and stayed the CERCLA response-cost claim pending DEC proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs must exhaust state administrative remedies or be deferred to DEC (primary jurisdiction) before seeking injunctive relief | Plaintiffs say they are not directly challenging the DEC decision and can proceed under CERCLA; alternatively they say they exhausted by commenting during DEC process | Corning says plaintiffs should have pursued Article 78 or otherwise defer because DEC has primary authority and expertise; plaintiffs' suit would conflict with DEC remedy | Held: Primary-jurisdiction doctrine applies; court stays/injunctive relief effectively barred until DEC process runs; plaintiffs' tactical bypass of Article 78 reinforces deference to DEC |
| Whether plaintiffs pleaded negligence under NY law | Plaintiffs allege duty, breach (disposing hazardous fill), failure to warn, and harm | Corning argues no plausible duty to later purchasers, no factual allegations Corning knew of contamination or failed to warn, and remediation is ongoing | Held: Negligence claim dismissed for failure to plausibly plead duty/knowledge/failure-to-warn |
| Whether strict liability (abnormally dangerous activity) applies | Plaintiffs allege disposal of hazardous substances is abnormally dangerous | Corning argues disposal of outwardly ordinary fill historically used in development is not the sort of ultrahazardous activity warranting strict liability | Held: Strict-liability claim dismissed; allegations do not show abnormally dangerous activity |
| Whether private/public nuisance claims are viable | Plaintiffs allege interference with use and public rights, and special damages | Corning argues subsequent owners cannot sue prior owners for preexisting contamination via nuisance; plaintiffs fail to allege special injury for public nuisance | Held: Private and public nuisance claims dismissed for failure to allege cognizable, particularized injury and because doctrine disfavors suits by subsequent owners for prior contamination |
Key Cases Cited
- Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52 (N.Y. 1978) (exhaustion of administrative remedies doctrine under New York law)
- United States v. Western Pacific R.R. Co., 352 U.S. 59 (U.S. 1956) (distinguishing exhaustion and primary jurisdiction doctrines)
- County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990) (primary jurisdiction overview)
- Johnson v. Nyack Hosp., 964 F.2d 116 (2d Cir. 1992) (applying primary jurisdiction to state agency factual determinations)
- Ellis v. Tribune Television Co., 443 F.3d 71 (2d Cir. 2006) (four-factor primary-jurisdiction test)
- Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440 (N.Y. 1977) (elements and policy basis for strict liability for abnormally dangerous activities)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333 (D.N.M. 1995) (deferring to state agency remediation decisions)