Phoenix Beverages, Inc. et al v. Exxon Mobil Corporation et al
Filing
479
MEMORANDUM AND OPINION: For the reasons set forth in the attached order, the Court denies Plaintiff's motion for a preliminary injunction 432 . Ordered by Judge Pamela K. Chen on 2/11/2015. (Pelaez, Jenny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−x
PHOENIX BEVERAGES, INC., RODB LLC,
WINDMILL DISTRIBUTING COMPANY,
L.P., UP FROM THE ASHES, INC., and
other affiliated companies of PHOENIX
BEVERAGES, INC.,
Plaintiffs,
MEMORANDUM & ORDER
No. 12−CV−3771 (PKC) (JO)
− against –
EXXON MOBIL CORPORATION,
EXXONMOBIL RESEARCH AND
ENGINEERING COMPANY and QUANTA
RESOURCES CORPORATION,
Defendants.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−x
QUANTA RESOURCES CORPORATION,
Third−Party Plaintiff,
− against –
ACE WASTE OIL, INC., et al.,
Third−Party Defendants.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−x
PAMELA K. CHEN, United States District Judge:
Plaintiffs Phoenix Beverages, Inc. and its affiliated companies (collectively, “Plaintiffs”)
instituted this action on July 31, 2012 against Defendants Exxon Mobil Corporation,
ExxonMobil Research and Engineering Company (together, “Exxon”), and Quanta Resources
Corporation
(“Quanta”)
(collectively,
“Defendants”)
based
on
Defendants’
alleged
contamination of real property (the “Property”) owned and operated by Plaintiffs. (Dkt. 1
(“Compl.”) ¶ 1.)
Plaintiffs seek relief under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., and the Resource
Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., as well as State law,
including New York Navigation Law, N.Y. Nav. Law § 181(5). (Id.) Discovery is currently
proceeding in this matter. (See Dkt. 443.)
On October 27, 2014, Plaintiffs moved for a preliminary injunction pursuant to RCRA §
7002(a)(1)(B) on the ground that Plaintiffs face a threat of imminent irreparable harm from a risk
of explosion due to underground methane gas accumulating beneath the Property. (Dkts. 431 &
432.) Specifically, Plaintiffs sought to enjoin “Defendants to design and install (1) an explosive
gas monitoring and alarm system to warn of the presence of methane gas within the buildings on
the [] Property; (2) a sub−slab depressurization system to prevent the migration of explosive gas
into the buildings on the [] Property, and (3) a system to extract and neutralize the methane gas
underlying the [] Property and begin abatement of the underground plume of waste oil that is the
source of the explosive gas.” (Dkt. 432−1 (“Pl. Mem.”) at 6). 1 Exxon and Quanta each opposed
Plaintiffs’ motion. (Dkt. 448 (“Exxon Mem.”) & 458 (“Quanta Mem.”).)
The Court heard oral argument on Plaintiffs’ motion on November 19, 2014. (Dkt. 466
(Transcript of Nov. 19, 2014 Conference (“Tr.”).) At the close of argument, the Court denied
Plaintiffs’ request for an evidentiary hearing and motion for preliminary injunctive relief. (Id. at
82, 86.) This Memorandum & Order sets forth the reasons for the denial of Plaintiffs’ requested
relief.
BACKGROUND
The Property is located at 37−88 Review Avenue, Long Island City, New York. (Compl.
¶ 1.) Plaintiffs are currently leasing a warehouse and office building located on the Property (the
“Building”) to a number of commercial enterprises engaged in various activities, such as food
1
Page numbers in this Memorandum & Order refer to the pagination supplied by the ECF
docketing system.
2
and beverage distribution, construction, and storage for video production operations. (Pl. Mem.
at 11; Dkt. 434−2 (Declaration of Rodney Brayman dated Oct. 27, 2014 (“Brayman Decl.”)) ¶
3.) Over one hundred individuals occupy the Building in connection with these enterprises, with
occupants physically present twenty−four hours a day, seven days a week. (Brayman Decl. ¶ 3.)
There is no dispute that a substantial plume of Light Non−Aqueous Phase Liquid
(“LNAPL”), consisting of waste oils and other contaminants, is floating on the water table
beneath the Property and the Building. (See Dkt. 433 (Declaration of Tomlinson Fort dated Oct.
27, 2014 (“Fort Decl.”)) ¶¶ 8, 13 & Ex. C; Dkt. 447 (Declaration of John A. Simon dated Nov. 9,
2014 (“Simon Decl.”)) ¶ 3.) It is further undisputed that this subsurface LNAPL is generating
methane gas through biodegration and volatization, and that methane consequently is
accumulating in the “sub−slab” between the concrete foundation of the Building and the LNAPL
plume. (Fort Decl. ¶¶ 14, 17; Dkt. 445 (Declaration of Stuart Mitchell dated Nov. 10, 2014
(“Mitchell Decl.”)) ¶¶ 7, 10, 21.)
Plaintiffs’ Complaint alleges that an adjacent site located at 37−80 Review Avenue, Long
Island City, New York and formerly owned by Quanta (the “Quanta Site”) is the source of the
LNAPL contamination underneath the Property. 2 (Compl. ¶¶ 19-20, 41, 43, 52, 57.) From
around 1970 to 1981, Plaintiffs allege that the Quanta Site operated as a disposal, storage, and
transfer facility for “hazardous wastes, solid wastes and hazardous substances.” (Id. ¶¶ 33−34.)
According to Plaintiffs, Exxon and/or predecessor companies arranged for the disposal of
hazardous substances, including oil slop, from Exxon facilities to the Quanta Site at least from
2
The responsibility for the contamination on the Property is in sharp dispute and will be a
subject of ongoing discovery. (See Tr. 31; Pl. Mem. at 14−16; Quanta Mem. at 6−12, 31−35;
Exxon Mem. at 16, 31−32.) Among Defendants’ contentions is that activities that took place on
the Property, including the operation of an oil refinery on the Property from 1882 until 1949,
account for at least part of the contamination. (Simon Decl. ¶ 25; Tr. 32, 40−41; see generally
Dkts. 444 & 459.)
3
1975 to 1980. (Id. ¶¶ 24, 35−37.) Plaintiffs further allege that the migration of contaminants to
the Property is the result of Defendants’ inadequate methods for storage and treatment at the
Quanta Site. (Id. ¶¶ 43−44, 47.)
With Plaintiffs’ knowledge or participation, the Property and Building have been subject
to an extensive program of testing for concentrations of potentially explosive vapors, including
testing for methane at the lower explosive limit (“LEL”). 3 In 2002, the New York Department of
Environmental Conservation (“DEC”) became involved in investigations of contamination at the
Property in connection with remediation of the neighboring Quanta Site. (Mitchell Decl. ¶ 3;
Exxon Mem. at 22; Pl. Mem. at 6.) Sampling activities were conducted at the Property as early
as June 2004. (Dkt. 450 at Ex. 33 (letter from Plaintiffs’ counsel dated June 29, 2004 discussing
testing for explosive vapors on the Property).) In August 2004, an indoor air screening was
performed at the Building after the Building was closed for a period of thirty−six hours to allow
vapors to accumulate. (Simon Decl. ¶ 12.) All LEL readings from this screening were at zero,
meaning that no combustible gases were detected inside the Building. (Id. ¶ 13.)
The DEC also has been overseeing the investigation of the Property since 2009 in
connection with the preparation of remedial recommendations relating to contaminants on the
Property. With the involvement of the DEC, the parties have engaged consultants to perform
multiple studies on the Property, including: soil vapor sampling program from December 2009
to February 2010 (Mitchell Decl. ¶¶ 6−7), in May 2014 (Fort Decl. ¶ 22 & Ex. D), and in June
3
The LEL is the lowest level at which a combustible gas will ignite if an ignition source is
present. (Simon Decl. ¶ 11.) In other words, at or above the LEL, gas or vapor is concentrated
enough to ignite. (Fort Decl. ¶ 15.) The explosive range of methane is 5−15 percent in air by
volume. (Fort Decl. ¶ 16; Mitchell Decl. ¶¶ 7, 29.) Any concentration of methane that is 5
percent or greater in the air will register as 100 percent LEL on a typical LEL meter, indicating
that methane is present at or above the 5 percent concentration that presents an explosion risk.
(Fort Decl. ¶ 16; Mitchell Decl. ¶¶ 11, 21.)
4
2014 (Fort Decl. Ex. D), indoor air investigations of the Building in January 2010, March 2014,
and November 2014 (Mitchell Decl. ¶¶ 9, 20, 27−29; Simon Decl. ¶¶ 11, 14), as well as the
installation of, and sampling from, monitoring wells inside the Building in January 2013 and in
April 2014 (Mitchell Decl. ¶ 21; Fort Decl. ¶¶ 10, 13, 17, 20−23). Evaluation of methane levels
in the subsurface of the Property consistently revealed concentrations below ground that
exceeded the LEL for methane. (Mitchell Decl. ¶¶ 7, 21; Fort Decl. ¶¶17, 20−21).
Data generated from air samples taken within the Building, on the other hand, did not
disclose levels of methane that approached the LEL. (See, e.g., Mitchell Decl. ¶¶ 10−11, 28;
Simon Decl. ¶¶ 10−11; 14−15.) For instance, indoor air sampling conducted in January 2010 did
not measure methane in concentrations above 1 part per million, with the exception of samples
from sump and floor drains, which registered methane at 500 parts per million, or 100 times
below the LEL.
(Mitchell Decl. ¶¶ 10−11; Simon Decl. ¶¶ 14−15.)
Indoor air sampling
performed more recently in November 2014 at thirty−two locations within the Building similarly
did not detect methane, except for in a floor drain at a concentration of 370 parts per million,
which is almost 100 times below the LEL. (Simon Decl. ¶ 11; Mitchell Decl. ¶¶ 27−29; Fort.
Decl. ¶¶ 25−27.)
In or around November 2014, Defendants and other third parties submitted a remedial
investigation report regarding the Property to the DEC for review and approval of a remedial
plan. (Tr. 49−50; Mitchell Decl. ¶ 23; Exxon Mem. at 10.) The DEC also received copies of
interim reports documenting findings from sampling conducted on the Property. (See, e.g.,
Mitchell Decl. ¶¶ 12, 15.) Thus far, the DEC has not required immediate action by any party to
address methane at the Property. (See, e.g., Tr. 49−50; Mitchell Decl. ¶¶ 12, 15−16.)
5
DISCUSSION
A.
Resource Conservation and Recovery Act (RCRA)
RCRA is a comprehensive statute governing the treatment, storage, and disposal of
hazardous waste. City of Chicago v. Envtl. Defense Fund, 511 U.S. 328 (1994). Its primary
purpose is “to minimize the present and future threat [posed by hazardous waste] to human
health and the environment.” 42 U.S.C. § 6902(b). A citizen may bring suit under RCRA
“against any person, including . . . any past or present generator . . . who has contributed or who
is contributing to the past or present handling . . . of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or the environment.”
Id. §
6972(a)(1)(B). “[T]he ‘imminent and substantial endangerment’ standard is a broad one” and
“‘is intended to confer upon the courts the authority to grant affirmative equitable relief to the
extent necessary to eliminate any risk posed by toxic wastes.’” Cordiano v. Metacon Gun Club,
Inc., 575 F.3d 199, 210 (2d Cir. 2009) (internal quotation marks omitted). “No matter how
broadly read, however, the text of 42 U.S.C. § 6972 requires the presence of solid or hazardous
waste that may present an ‘endangerment’ that is ‘imminent’ and ‘substantial.’” Id.
Section 7002(a)(1)(B) of RCRA, which Plaintiffs invoke in support of their motion,
permits a district court “to order [a person who may have contributed to endangerment] to take
such . . . action as may be necessary.” Both prohibitory and mandatory injunctions may properly
be issued under this provision. Meghrig v. KFC Western, Inc., 516 U.S. 479, 484 (1996). In
determining whether to issue an injunction under RCRA, Courts have applied traditional
equitable principles. See, e.g., Grace Christian Fellowship v. KJG Invs. Inc., No. 07–0348, 2009
WL 2460990, at *6 (E.D.Wis.2009); Wilson v. Amoco Corp., 989 F. Supp. 1159, 1177
(D.Wyo.1998) (citing cases).
6
B.
Preliminary Injunction Standard
To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Oneida Nation of N.Y. v. Cuomo, 645
F.3d 154, 164 (2d Cir. 2011). “[I]n making such a showing[,] the movant bears a heavy burden.”
New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 750 (2d Cir. 1977). “The award of a
preliminary injunction is an extraordinary and drastic remedy that will not be granted absent a
clear showing that the plaintiff has met its burden of proof.” Christie−Spencer Corp. v.
Hausman Realty Co., 118 F. Supp. 2d 408, 417 (S.D.N.Y. 2000).
The standard is modified somewhat when, as here, the injunction sought is mandatory,
since “mandatory injunctions are more burdensome than prohibitory injunctions, and disturb the
status quo prior to final adjudication.” Id. at 418. Thus, a mandatory injunction will issue “only
upon a clear showing that the moving party is entitled to the relief requested, or where extreme
or very serious damage will result from a denial of preliminary relief.” Citigroup Global
Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir.
2010) (citation and internal quotation marks omitted).
As explained in the next section, Plaintiffs have not shown a threat of irreparable injury
stemming from the existence of methane below the Property. This factor alone requires denial of
the requested injunctive relief. 4
4
Although the failure to establish irreparable harm is dispositive, the Court observes that the
deficiencies that resulted in a failure to demonstrate irreparable harm also call into doubt whether
Plaintiffs can show likelihood of success on the merits of their claim of “imminent and
substantial endangerment to health or the environment” under RCRA. See Christie−Spencer,
118 F. Supp. 2d at 423 (“In a RCRA case, the irreparable injury prong of the inquiry effectively
7
C.
Likelihood of Irreparable Harm
A showing of irreparable harm generally “is the single most important prerequisite for the
issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d
110, 118 (2d Cir. 2009) (citation and internal quotation marks omitted); see Nuclear Regulatory
Comm’n, 550 F.2d at 750 (“a clear showing of the threat of irreparable harm . . . . is a
fundamental and traditional requirement of all preliminary injunctive relief”). To be irreparable,
the injury must be one that “cannot be remedied by monetary damages.” Rodriguez v. DeBuono,
175 F.3d 227, 234 (2d Cir. 1999) (citation and internal quotation marks omitted).
In cases “brought pursuant to an environmental health statute, the focus of the irreparable
harm inquiry shifts to concern for the public interest.” Christie−Spencer, 118 F. Supp. 2d at
423; see Wilson, 989 F. Supp. at 1171. “Environmental injury, by its nature, can seldom be
adequately remedied by money damages and is often permanent or at least of long duration, i.e.,
irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor
the issuance of an injunction to protect the environment.” Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 545 (1987) (emphasis added). Notwithstanding these principles, “[i]rreparable
harm is not presumed from a violation of RCRA.” Wilson, 989 F. Supp. at 1177 (citing Amoco,
480 U.S. at 545). “[T]he grant of jurisdiction to ensure compliance with a statute hardly suggests
an absolute duty to do so under any and all circumstances, and a federal judge . . . is not
mechanically obligated to grant an injunction for every violation of law.” Amoco, 480 U.S. at
542 (citation and internal quotation marks omitted). Courts should decline granting preliminary
merges with the Court’s analysis of the likelihood of plaintiff’s likelihood of success on the
merits.”)
8
injunctive relief if, for instance, the risk of harm is speculative in nature. Wilson, 989 F. Supp. at
1172.
For an injunction to issue, the threat of irreparable harm must be “neither remote nor
speculative, but actual and imminent[.]”
Faiveley, 559 F.3d at 118 (citation and internal
quotation marks omitted); see Nuclear Regulatory Comm’n, 550 F.2d at 750 (“The dramatic and
drastic power of injunctive force may be unleashed only against conditions generating a
presently existing actual threat . . . .” (quoting Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d
614, 618 (3d Cir.1969))); City of N.Y. v. Anglebrook Ltd. P’ship, 891 F. Supp. 908, 925
(S.D.N.Y.1995) (holding that “there must be some actual, viable, presently−existing threat of
serious harm”). The party seeking preliminary relief “must show that the injury complained of is
of such imminence that there is a clear and present need for relief to prevent irreparable harm.”
Anglebrook, 891 F. Supp. at 925 (internal quotations omitted). A preliminary injunction must
not be issued “based only on a possibility of irreparable harm[,]” Winter, 555 U.S. at 22
(emphasis added); but on a finding that irreparable injury is “likely in the absence of an
injunction[,]” id. (emphasis in original). See Grand River Enter. Six Nations, Ltd. v. Pryor, 481
F.3d 60, 66 (2d Cir. 2007) (party seeking injunction must demonstrate that irreparable injury is
likely before other requirements for an injunction will be considered).
Plaintiffs contend that they risk irreparable harm absent preliminary injunctive relief
because of a potential explosion due to “[t]he unmitigated presence of methane vapor underneath
the [] Property.” (Pl. Mem. at 10.) The facts presented, however, do not support a finding that
the presence of gas in the sub-slab of the Property poses an actual and imminent threat of
explosion so as to warrant the extraordinary relief requested. Because the record does not clearly
9
establish a risk of explosion, there is no danger to the public interest for the purposes of
irreparable injury. See Christie−Spencer, 118 F. Supp. 2d at 423.
Dispositive to Plaintiffs’ motion is their failure to present evidence that the methane
under the concrete slab of the Building is likely to ignite, or is likely to migrate to an enclosed
space where ignition can occur. To combust, concentrations of methane at or above the LEL
must encounter both: (1) a sufficient level of oxygen, and (2) an ignition source. (Mitchell Decl.
¶ 29; Tr. 22−23, 47−48, 54.)
Although Plaintiffs have come forward with evidence that
concentrations of methane in the Property’s subsurface surpass the LEL, Plaintiffs have not
identified any ignition source in the sub−slab, nor established that there is oxygen in the
sub−slab sufficient to cause an explosion. To the contrary, oxygen levels measured in sub−slab
soil gas samples in 2009 and March 2014 were measured below the minimum concentration
required for methane combustion. (Mitchell Decl. ¶ 29 & Exs. A, I; Tr. 34−35, 46−48.)
Additionally, Plaintiffs cannot point to any objective evidence or data that the methane
below the Property has permeated above the sub−slab, or that a pathway exists for the methane
to escape to the surface. (See Tr. 16, 54.) Multiple rounds of air sampling in the Building have
not disclosed actionable levels of methane above ground. (Id. at 12−13, 17, 34, 35−36; Mitchell
Decl. ¶¶ 8−9, 21, 26−29 & Ex. K; Simon Decl. ¶¶ 10−17 & Ex. A.) As recently as November 5,
2014, thirty−two samples taken throughout the Building−including enclosed spaces, storage
areas, floor drains, and the boiler room−did not detect methane except at minute levels
approximately 1/100th of the LEL. (Fort. Decl. ¶¶ 25−27; Mitchell Decl. ¶¶ 27−29.) The only
other evidence of methane above ground in the Building was from samples of sump and floor
drains taken in January 2010, which also revealed low levels of methane at 1/100th of the LEL.
(Mitchell Decl. ¶¶ 8−9; Tr. 36.)
10
Plaintiffs do not seriously challenge the accuracy of these findings. Instead, they pose the
possibility that the methane could migrate into confined spaces “where an ignition source may
exist” (Pl. Mem. at 8, 14; Fort Decl. ¶ 29): either above ground to enclosed areas in the Building
that have not been tested, such as the elevator shafts or space between drywall partitions (Tr.13;
Pl. Mem. at 8−9.); or below ground to hidden enclosed spaces such as subsurface utilities or
sewers (Tr. 12, 16; Pl. Mem. at 8−9). Plaintiffs contend that, since the Property is located in a
commercial area with road and rail traffic, forces beyond their control could supply an ignition
source. (Tr. at 12, 16, 23.)
The record indicates, however, that Plaintiffs’ claim of a risk of explosion amounts to
little more than a speculative prospect. Plaintiffs have failed to identify any “confined spaces” to
which methane is likely to migrate and come into contact with an ignition source. When pressed
at oral argument, Plaintiffs’ counsel posited that methane could hypothetically migrate to an
unspecified sewer, where a cigarette could be thrown from a passing truck, causing combustion.
(Tr. 30.) Such unsupported conjectures plainly fall short of Plaintiffs’ heavy burden of showing
that a “reasonable prospect of future serious harm exists.” See Lewis v. FMC Corp., 786 F.
Supp. 2d 690, 710 (W.D.N.Y. 2011). As discussed above, irreparable injury must be “likely in
the absence of an injunction”; it is not enough for a plaintiff to face the mere “possibility” of
irreparable harm. Winter, 555 U.S. at 22 (emphasis in original). Plaintiffs’ speculations as to the
potential migrations of gas to as yet unknown enclosed spaces do not do not constitute evidence
of an “actual, viable, presently−existing threat[.]” See Anglebrook, 891 F. Supp. at 925.
The cases to which Plaintiffs cite are distinguishable in that those cases presented clear
evidence of a likelihood of explosion. (See Pl. Mem. at 11, n.2 (citing, e.g., Columbia Gas
Transmission, L.L.C. v. Robert Borror Logging, L.L.C., No. 2:12−CV−39, 2012 WL 2294870, at
11
*2 (N.D.W. Va. June 15, 2012) (substantial risk of explosion absent an injunction requiring
installation of a remedial measure that would mitigate expected levels of stress on a gas
pipeline)). The threat of harm in this case is more closely analogous to that in Grace Christian
Fellowship v. KJG Investments Inc. In Grace, the court denied a preliminary injunction to
address gasoline vapors underneath the property at issue because the movant failed to establish
“a complete exposure pathway from any gasoline vapors in the sub−slab . . . to the [] building,”
and therefore failed to demonstrate irreparable harm. No. 07–0348, 2009 WL 2460990, at
*11−12.
Similarly, in Tri−Realty Co. v. Ursinus Coll., No. CIV.A. 11−5885, 2013 WL
5298469, at *12 (E.D. Pa. Sept. 19, 2013), the court “found irreparable harm to be insufficiently
likely because there was no evidence of a completed exposure pathway between the source of
contamination and the area of concern.” Plaintiffs in this case likewise have offered no evidence
of a pathway between the methane below ground and areas where it can encounter an ignition
source and sufficient oxygen to combust. In sum, Plaintiffs have not established that combustion
is reasonably likely as a result of the accumulation of methane underneath the Property.
Accordingly, Plaintiffs have failed to establish that absent a preliminary injunction, they will
suffer irreparable harm in the interim period prior to a final resolution of its claims.
Furthermore, Plaintiffs’ delay in bringing their motion for preliminary injunctive relief is
inconsistent with their claim that Plaintiffs would suffer irreparable harm if an injunction were
not issued. Delay in seeking relief may “indicate an absence of the kind of irreparable harm
required to support a preliminary injunction.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d
Cir. 1985). “Lack of diligence, standing alone, may . . . preclude the granting of preliminary
injunctive relief, because it goes primarily to the issue of irreparable harm.” Majorica, S.A. v.
12
R.H. Macy & Co., Inc., 762 F.2d 7, 8 (2d Cir.1985). Here, Plaintiffs did not seek a preliminary
injunction until October 27, 2014—over two years after it filed suit in this case.
Plaintiffs attempt to explain the delay by arguing that the harm has only recently become
imminent, based on data obtained in August 2014 from monitoring wells that were installed in
the summer of 2014, which revealed concentrations of methane at 100 percent of the LEL
underneath the Building. (Tr. 19−20, 26−27.) However, Plaintiffs’ claim that they discovered
the widespread nature of the contamination on the Property in August 2014 ignores the lengthy
history of oil storage and disposal on the Property and adjoining Quanta Site, as well as the overfive-year investigation of the Property under DEC oversight. 5 Plaintiffs participated in sampling
of potentially explosive vapor at the Property as early as 2004, suggesting that Plaintiffs have
long known about the risk of combustible gas on the Property. (See Simon Decl. ¶¶ 12-13; Dkt.
450 at 33.) Plaintiffs further participated in DEC−supervised investigation, from 2002 to 2005,
of contamination at the Quanta Site and neighboring areas, including the Property. (See, e.g.,
5
Defendants’ reliance on cases such as Rococo Assocs., Inc. v. Award Packaging Corp., 803 F.
Supp. 2d 184, 192 (E.D.N.Y. 2011) for the proposition that Plaintiffs cannot obtain relief under
RCRA because of DEC’s ongoing oversight is misplaced. (See Exxon Mem. at 22−24.) In those
cases, a remedial scheme already was underway or had concluded, such that there was nothing
more that the Court could direct any party to do in furtherance of RCRA’s goal of remediating
the hazardous waste. See 87th St. Owners Corp. v. Carnegie Hill, 251 F. Supp. 2d 1215, 1220
(S.D.N.Y. 2002) (citing 42 U.S.C. § 6972(a)(1)(B)). By contrast, Defendants’ remedial
investigation report was only submitted to the DEC in November 2014, and has not yet resulted
in remedial measures. DEC involvement does not by itself divest this Court of jurisdiction to
award relief under RCRA. See, e.g., Lambrinos v. Exxon Mobil Corp., No. 1:00−CV−1734,
2004 WL 2202760, at *6 (N.D.N.Y. Sept. 29, 2004); Kara Holding Corp. v. Getty Petroleum
Mktg., Inc., 67 F. Supp. 2d 302, 311 (S.D.N.Y. 1999). Nevertheless, for purposes of determining
whether Plaintiffs face a threat of irreparable harm due to a risk of explosion, the Court finds
significant that the DEC declined to direct any party to undertake any remedial measures on an
emergency basis, or required any party to take immediate action to protect against methane.
(See, e.g., Tr. 49−50; Mitchell Decl. ¶¶ 12, 15−16.)
13
Mitchell Decl. ¶ 3; Tr. 20−21, 24−25, 27.) 6 At the latest, the record suggests that Plaintiffs were
aware of the contamination and methane underneath the Property as of April 24, 2013, when
samples from other monitoring wells detected LEL readings of 100 percent within the sub−slab.
(See, e.g., Fort Decl. ¶ 17 & Ex. C; Tr. 24, 25−26, 27.) Yet Plaintiffs did not move for a
preliminary injunction upon obtaining the April 2013 data. The Court is unpersuaded that 100
percent LEL readings in August 2014 that are consistent with earlier well sampling render the
threat of explosion more imminent than in April 2013.
Plaintiffs’ representations to the Court further indicate that Plaintiffs were concerned
about risks associated with methane, including an explosive potential, well before August 2014.
For instance, in a letter to the Court dated June 27, 2013, Plaintiffs stated that “[r]ecent
environmental sampling shows widespread contamination . . .” (Dkt. 73 at 2.) Quoting from the
report reflecting April 2013 sampling data, Plaintiffs further stated that “the 100% LEL reading
is a significant concern because it indicates that the vapors above the liquid in the well are
potentially explosive[.]” Approximately one year after expressing their concerns about the level
of combustible vapors on the Property, Plaintiffs now rely on substantially the same contentions
to move for the “extraordinary remedy” of a preliminary injunction. See Winter, 555 U.S. at 22.
The Court thus finds that Plaintiffs’ delay is further evidence against the imminence of any
irreparable harm, and weighs against granting preliminary relief.
Plaintiffs’ claim of irreparable harm due to a threat of explosion at the Building is further
undermined by the fact that Plaintiffs continue to allow tenants to lease, occupy, and work in the
Building on a daily basis. (See Tr. 17; Brayman Decl. ¶ 3.) Plaintiffs’ representations that they
6
Indeed, Plaintiffs retained an environmental consultant in April 2011 (Fort Decl. at ¶ 4) and in
February 2012, served a Notice of Endangerment under RCRA on Defendants, alleging
imminent and substantial endangerment due to wastes that have migrated from the Quanta Site
(Dkt. 449 at Ex. B).
14
have taken certain precautionary measures—such as installing vapor monitors in the Building,
issuing warnings to tenants “about the potential presence of explosive gas,” and enforcing a
smoking ban (Brayman Decl. ¶ 4; Tr. 17; Pl. Mem. at 9)—do not lessen the significance of this
fact.
That Plaintiffs permit over one hundred individuals to occupy the Building belies
Plaintiffs’ claims about the likelihood of an imminent explosion and the urgency of the requested
injunctive relief.
Finally, the Court observes that inasmuch as remedial measures are immediately
necessary, Plaintiffs have access to an adequate remedy at law under CERCLA. 7 42 U.S.C. §
9607(a)(4)(B). CERCLA authorizes parties “to recoup money spent to clean up and prevent
future pollution at contaminated sites or to reimburse others for cleanup and prevention at
contaminated sites.” Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 94 (2d
Cir. 2005); see Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 120 (2d
Cir. 2010) (CERCLA “provide[s] property owners an avenue of reprieve; it allows them to seek
reimbursement of their cleanup costs”).
As explained in Christie−Spencer, “to the extent
plaintiff fears that it will someday be responsible for [] clean−up costs, it has an adequate remedy
at law against HRC under both CERCLA and RCRA, as well as the common law.” 118 F. Supp.
2d at 425.
Plaintiffs thus have the option to undertake the remedial measures they request and later
seek compensation from Defendants for the cost of these measures, should Plaintiffs ultimately
prevail in this action. Plaintiffs do not contest that they have adequate financial resources to
implement the measures they request in their motion and that they have retained consultants with
7
Although a private party cannot recover the costs of a past cleanup effort under RCRA, the
statute does not preclude a party from recovering its cleanup costs under other federal or state
laws. Meghrig, 516 U.S. at 487−88.
15
the expertise as well as a plan to institute remediation measures. (Tr. 29, 38−39, 58, 69; Fort
Decl. ¶¶ 31−32 & Ex. H.) Plaintiffs’ own expert further states that these measures can be
implemented concurrently with, and are complementary to, Defendants’ ongoing investigation of
the Property. (Fort Decl. ¶ 33.)
For all of the aforementioned reasons, the Court holds that Plaintiffs fail to meet their
heavy burden of clearly establishing an “actual and imminent” threat of irreparable harm that
warrants preliminary relief before a trial on the merits. Faiveley, 559 F.3d at 118. Having so
concluded, the Court need not address the other requirements for obtaining a preliminary
injunction. See Nuclear Regulatory Comm’n, 550 F.2d at 750 (affirming denial of preliminary
injunction motion on ground that “appellant has failed to demonstrate by the required showing
the threat of irreparable injury,” making consideration of other requirements unnecessary).
Accordingly, Plaintiffs’ motion for a preliminary injunction is denied.
CONCLUSION
For the reasons stated above, the Court denies Plaintiff’s motion for a preliminary
injunction.
SO ORDERED:
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: February 11, 2015
Brooklyn, New York
16
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