Village of Stillwater et al v. General Electric Company et al

Filing 289

MEMORANDUM-DECISION and ORDER re 277 MOTION for Reconsideration. It is ORDERED that GE's motion for reconsideration is DENIED. Signed by Judge David N. Hurd on 11/9/2015. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------TOWN OF HALFMOON and COUNTY OF
SARATOGA,
Plaintiffs,
-v-

1:09-CV-228 (LEAD)

GENERAL ELECTRIC COMPANY,
Defendant.
---------------------------------SARATOGA COUNTY WATER AUTHORITY,
Plaintiff,
-v-

1:11-CV-6 (MEMBER)

GENERAL ELECTRIC COMPANY,
Defendant.
---------------------------------APPEARANCES:

OF COUNSEL:

NOLAN & HELLER, LLP
Attorneys for Plaintiff Town of Halfmoon
39 North Pearl Street
Albany, NY 12203

DAVID A. ENGEL, ESQ.
SHANNAN COLLIER
KRASNOKUTSKI, ESQ.

DREYER BOYAJIAN LLP
Attorneys for Plaintiffs Saratoga County and
Saratoga County Water Authority
75 Columbia Street
Albany, NY 12210

CRAIG M. CRIST, ESQ.
DONALD W. BOYAJIAN, ESQ.
JAMES R. PELUSO, JR., ESQ.
BENJAMIN W. HILL, ESQ.
WILLIAM J. DREYER, ESQ.

MACKENZIE HUGHES LLP
Attorneys for Defendant
101 South Salina Street
Syracuse, NY 13221

SAMANTHA L. MILLIER, ESQ.

WILLIAMS & CONNOLLY LLP
Attorneys for Defendant
725 12th Street, NW
Washington, DC 20005

NEELUM J. WADHWANI, ESQ.
ROBERT J. SHAUGHNESSY, ESQ.
STEVEN R. KUNEY, ESQ.
CONSTANCE T. FORKNER, ESQ.
JOSEPH G. PETROSINELLI, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On May 12, 2015, a Memorandum–Decision & Order (the "May 12 MDO" or "MDO")
issued resolving cross-motions for summary judgment made by the parties to this
consolidated action. Town of Halfmoon v. Gen. Elec. Co., –F. Supp. 3d–, 2015 W L
2229236, at *17 (N.D.N.Y. May 12, 2015).
In particular, the May 12 MDO denied motions for partial summary judgment by
plaintiffs Town of Halfmoon ("Halfmoon"), County of Saratoga ("Saratoga"), and the Saratoga
County Water Authority ("SCWA") (collectively "plaintiffs") on the issue of defendant General
Electric Company's ("GE") liability under state and federal law. Town of Halfmoon, 2015 WL
2229236, at *17. Conversely, the MDO granted in part GE's motion for summary judgment,
finding all of plaintiffs' state law claims pre-empted save for one based on New York's
Navigation Law. Id.
GE has moved for reconsideration of the May 12 MDO, arguing that a proper
application of the doctrine of conflict pre-emption requires plaintiffs' New York Navigation
Law claim to also be dismissed. Plaintiffs oppose. The motion will be considered on the
basis of these submissions without oral argument.

-2-

II. DISCUSSION1
GE has moved pursuant to Federal Rule of Civil Procedure ("Rule") 54(b), which
provides that a district court's non-final order "may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties' rights and liabilities." FED. R. CIV. P.
54(b).
"Rule 54(b) gives district courts broad discretion to reconsider, reverse, or modify
interlocutory orders previously entered in a case." Vornado Realty Trust v. Marubeni
Sustainable Energy, Inc., 987 F. Supp. 2d 267, 275 (E.D.N.Y. 2013). Generally speaking,
however, a party seeking reconsideration "must show an intervening change in controlling
law, the availability of previously unavailable evidence, or the need to correct a clear error of
law or prevent manifest injustice[.]" Long v. U.S. Dep't of Justice, 778 F. Supp. 2d 222,
228-29 (N.D.N.Y. 2011) (Mordue, C.J.).
GE contends reconsideration is warranted here to correct a clear error of law.
Specifically, GE asserts the May 12 MDO erred in concluding that the petroleum exclusion
found in the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §§ 9601-9675 ("CERCLA"), works to preclude dismissal of plaintiffs' Navigation Law
claim on the basis of conflict preemption. Def.'s Mem., ECF No. 277-2, 4-6. 2
As an initial matter, GE is correct to note that Polychlorinated Biphenyls ("PCBs"), the
chemical compounds at the heart of this case, are considered a type of "hazardous
substance" covered by CERCLA's broad reach. See 42 U.S.C. § 9601(14); see also T own of

1

The parties' familiarity with the factual background in this matter is presumed and will not be
repeated here.
2

Pagination corresponds with that assigned by CM/ECF.
-3-

Halfmoon, 2015 WL 2229236, at *6 ("The parties [ ] agree . . . PCBs are 'hazardous
substances' within the meaning of CERCLA.").
But CERCLA's scope of coverage is not limitless. "CERCLA's definition of hazardous
substance does not include petroleum, or the hazardous substances normally found in
refined petroleum, including unadulterated waste oil." Booth Oil Site Admin. Grp. v.
Safety-Kleen Corp., 532 F. Supp. 2d 477, 510 (W .D.N.Y. 2007); see also 42
U.S.C. § 9601(33) (excluding "petroleum" from the definition of a hazardous substance).
Instead, liability for the discharge of petroleum must be established in accordance with
the relevant state law. New York's Navigation Law provides that "[a]ny person who has
discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and
removal costs and all direct and indirect damages, no matter by whom sustained . . . ." N.Y.
NAV. LAW § 181(1).
This statute, which is to be "liberally construed to effect its purposes," broadly defines
"petroleum" as "oil or petroleum of any kind and in any form including, but not limited to, oil,
petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other wastes and crude oils, gasoline
and kerosene." N.Y. NAV. LAW §§ 172(15), 195.
GE asserts these distinctions in scope of coverage are irrelevant, since plaintiffs "do
not and could not contend that the[ ] resuspended PCBs are outside the reach of
CERCLA." Def.'s Mem. at 6. But that is not quite the argument plaintiffs advanced at the
summary judgment stage. Rather, as the May 12 MDO notes, plaintiffs claimed the
discharges are issue should be covered under both CERCLA and the Navigation Law. See
Town of Halfmoon, 2015 WL 2229236, at *13 n. 20.

-4-

To be sure, "the primary purpose of the exclusion for petroleum, which is defined
principally in terms of crude oil and crude oil fractions, was to exclude from CERCLA's
coverage 'spills or other releases strictly of oil,' not releases of hazardous substances mixed
with oil." City of New York v. Exxon Corp., 744 F. Supp. 474, 490 (S.D.N.Y. 1990) (internal
citation omitted). Ultimately, however, "whether state-law claims are preempted by CERCLA
boils down to whether double recovery . . . will occur." MPM Silicones, LLC v. Union Carbide
Corp., 931 F. Supp. 2d 387, 406 (N.D.N.Y. 2013) (Kahn, J.).
It is against this backdrop that the May 12 MDO identified a genuine factual dispute
over whether the relevant discharges from the Hudson Falls and Fort Edward plants were
petroleum-based" or, instead, were PCBs that may have become mixed with
petroleum. Town of Halfmoon, 2015 WL 2229236, at *13. The latter would seem to fall
within CERCLA's reach. Booth Oil Site Admin. Grp., 532 F. Supp. 2d at 510 ("CERCLA's
definition of hazardous substances does include hazardous substances which are added to
petroleum . . . ."). The former may not. Cf. ("[I]t may well be that plaintiff incurred damages
responding to discharges of petroleum which are outside of CERCLA's definition of
hazardous substance.").
Indeed, "[t]he imposition of [ ] hazardous waste contamination liability under state law,
on facts that would not, for whatever reason, support CERCLA liability, is expressly
authorized by CERCLA." New York v. West Side Corp., 790 F. Supp. 2d 13, 27 (E.D.N.Y.
2011) (citation omitted); see also Volunteers of Am. of W.N.Y. v. Heinrich, 90 F. Supp. 2d
252, 257-58 (W.D.N.Y. 2000) ("CERCLA does not prevent a plaintiff from recovering
damages under state law that are not duplicative of the damages it recovers under
CERCLA."). Therefore, out of an abundance of caution, both the CERCLA and Navigation
-5-

Law claims in this case will be permitted to go forward.
III. CONCLUSION
The question of whether, and to what extent, the contamination at issue in this case
gives rise to liability that may fall within CERCLA's petroleum exclusion is one that has been
reserved for trial. GE's renewed arguments here do not provide a sufficient basis for
reconsidering the logic of that conclusion.
Therefore, it is
ORDERED that
GE's motion for reconsideration (ECF No. 277) is DENIED.
IT IS SO ORDERED.

Dated: November 9, 2015
Utica, New York.

-6-