White Plains Housing Authority v. BP Products North America Inc.

Filing 230

OPINION & ORDER re: 193 MOTION to Dismiss or in the alternative. MOTION to Stay Notice by Defendant Marianina Oil Corp.. filed by White Plains Housing Authority, 197 CROSS MOTION to Dismiss or in the alternative, Motion to Stay. filed by Marianina Oil Corp. For the foregoing reasons, the Court RESERVES JUDGMENT on Plaintiff's motion to preclude and DENIES Defendant's motion to dismiss, or in the alternative, stay the action. The Clerk of Court is respectfully directed to terminate the motion at ECF Nos. 193, 197. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 12/19/22) (yv)

Case 7:17-cv-06250-NSR Document 230 Filed 12/19/22 Page 1 of 24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
12/19/2022

WHITE PLAINS HOUSING AUTHORITY,
-against-

Plaintiff,
17-cv-6250 (NSR)
OPINION & ORDER

BP PRODUCTS NORTH AMERICA INC.,
MARIANINA OIL CORP., and ATLANTIC
RICHFIELD COMPANY,
Defendants.
NELSON S. ROMÁN, 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.

By Stipulation and Order, dated November 19, 2019, Plaintiff’s claims against Defendants BP Products North
America, Inc., and Atlantic Richfield Company were dismissed with prejudice. (ECF No. 98.)
1

On December 16, 2022, the Court granted 34 EPR, LLC’s motion for substitution as Defendant, in
accordance with the Court’s Order dated July 25, 2022 (ECF No. 223), wherein the Court conditioned the sale of the
subject property provided that White Plains Medical Center Hospital (formally referred to as 34 EPR, LLC in its
moving papers) will assume any and all existing liabilities, defenses, as well as the right to appeal just as Marianina
Oil Corporation would, the procedural posture of the case will not change, and Plaintiff retains the same rights, claims,
and defenses against White Plains Hospital it otherwise would possess as against Marianina. (See ECF No. 229.)
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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.

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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.

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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

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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.

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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 Commercial Use Soil
Cleanup Objectives (SCOs) to determine the excavation terminus. The end-point sampling results
will be used to determine if the extent of the excavation must be altered to include excavation and
removal of additional gasoline impacted soil.” (Id.) Option 1 also provides for groundwater
monitoring and sampling program on the WPHA property, “with quarterly sampling for a period
post-remediation to be determined and acceptable to the Department.” Lastly, the RAWP states,
in contradiction to the statements made by WPHRA’s environmental consultant, that “[d]ue to the
aforementioned levels on the WPHA Property, vapor intrusion should not be an issue, especially
considering Building 33’s distance from the impacted Site.” (Id. at 8.) Compare White Plains

CP-51 is a policy that provides the framework and procedures for the selection of soil cleanup levels
appropriate for remedial programs handled by the DEC. See
https://www.dec ny.gov/docs/remediation hudson pdf/cpsoil.pdf .
3

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Hous. Auth., 482 F. Supp. 3d at 113 (Plaintiff’s expert indicating that “approximately 6.6 years,
the plume from the Service Station will reach Building 33 at concentrations that will cause vapor
intrusion to tenants”).
Option 2 was created as an alternative plan which anticipated the creation of a parking
garage by White Plains Urban Renewal Agency (“WPURA”), which was in the process of
purchasing the Service Station property. “This second option helps to streamline the first option
and dovetail it with this plan and may be utilized if this occurs under separate institutional controls
such as a supplemental order with the WPURA if this purchase occurs.” (RAWP at 6.) The Court
notes that the Service Station was ultimately not bought by the WPURA—instead, the Court has
been informed that the site was purchased by White Plains Hospital and subsequently assigned to
34 EPR, LLC. (See ECF No. 225.) WPHA states in its Opposition to Defendant’s cross-motion
that, “[r]ealistically, Option 2 will not be implemented as the City is no longer pursuing the
purchase or condemnation of the [Service Station] property.” (See ECF No. 198 at 12.). Defendant,
on the other hand, indicates that White Plains Hospital might build a parking garage. (See ECF
No. 194 (“Def’s Br.”) at 21.).
In any event, with respect to the Service Station, Option 2 proposes that “the entire [Service
Station site] will be excavated, and the impacted soil in question will be removed to 14 to 15 [feet
below ground]. There will also be well monitoring with quarterly testing, as well as a sub slab
depressurization system and vapor barrier.” (RAWP at 6.) Regarding the WPHA property, there
will be excavation of around 3,300 tons of soil, and “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

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compared to CP-51 soil guidance values.” In addition, Option 2 contemplates groundwater
monitoring and sampling of the WPHA site. (See RAWP at 9.)
On July 12, 2021, the parties were granted leave to engage in the instant motion practice,
with Plaintiff seeking to file a motion to preclude purportedly unauthenticated documents and
expert testimony regarding those documents, and Defendant filing a cross-motion to dismiss, a
motion to stay in the alternative. Briefing was complete as of April 29, 2022.
DISCUSSION
Defendant moved to dismiss or in the alternative to stay Plaintiff’s RCRA citizen suit,
which seeks injunctive relief in the form of remediation, based on two grounds: (i) that the
litigation is purportedly precluded under 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); and (ii) that the case should be dismissed or stayed under the doctrine of primary
jurisdiction given that NYDEC has already issued the August 2021 Consent Order and that
remedial efforts are already underway pursuant to an agreed-upon work plan (the “RAWP”). For
the reasons discussed below, the Court DENIES Defendant’s request to dismiss, or in the
alternative, to stay Plaintiff’s request for injunctive relief under the RCRA.
In addition, while trial is yet be scheduled for this matter, Plaintiff sought and was granted
leave to file a motion to preclude. Specifically, Plaintiff seeks to preclude two drawings of the
parking garage plans, which are referenced in Mr. Canavan’s (Defendant’s environmental expert)
Expert Report dated March 26, 2021, as well as Mr. Canavan’s testimony and the RAWP to the
extent that they reference those drawings. (See ECF No. 191 at 10.) Plaintiff argues that these
drawings are “are undated, and do not indicate who authored them, for whom they were prepared,
or for what purpose. The drawings are not signed and/or sealed by a licensed engineer (or anyone

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else).” (Id.) For the reasons discussed below, the Court RESERVES JUDGMENT on Plaintiff’s
motion to preclude.
I.

Dismissal or Stay Under 42 U.S.C. § 6972(b)
First, Defendant seeks to stay or dismiss this suit because it argues that “the express

provisions of RCRA [under 42 U.S.C. § 6972(b)] explicitly preclude the lawsuit.” (Def’s Br.” at
10.) The Court disagrees with Defendant’s position.
Section 6972(a) of the RCRA provides a private right of action (also known as “citizen
suit”):
[A]ny person may commence a civil action on his behalf ... against any
person ... including any past or present generator ... or past or present owner or
operator of a treatment ... facility, who has contributed or who is contributing to the
past or present handling, storage, treatment ... or disposal of any solid or hazardous
waste which may present an imminent and substantial endangerment to health or
the environment....
42 U.S.C. § 6972(a)(1)(B). “The language of this section of the RCRA is expansive, 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.’” Kara Holding Corp. v. Getty Petroleum
Mktg., Inc., 67 F.Supp.2d 302, 310 (S.D.N.Y.1999) (quoting United States v. Price, 688 F.2d 204,
214 (3d Cir.1982)).
However, there are certain carve-outs precluding RCRA citizen suits. See 42 U.S.C. §
6972(b). Specifically, 42 U.S.C. § 6972(b)(2)(C)(i) states that: “[n]o action may be commenced .
. . if the State . . . has commenced and is diligently prosecuting an action under subsection (a)(1)(B)
of this section.” 42 U.S.C. § 6972(b)(2)(C)(i). It is well-settled that “state administrative actions
simply do not constitute ‘actions,’ as contemplated in Subsection 6972(b)(2)(C)(i) of the RCRA.”
White Plains Hous. Auth. v. Getty Properties Corp., No. 13-CV-6282 NSR, 2014 WL 7183991, at
*11 (S.D.N.Y. Dec. 16, 2014); Kara Holding Corp., 67 F.Supp.2d at 307 (collecting authorities).

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Instead, “(b)(2)(C)(i) only prohibits (a)(1)(B) claims where a state has brought an action in court.”
Orange Env't, Inc. v. Cnty. Of Orange, 860 F.Supp. 1003, 1024 (S.D.N.Y.1994).
Defendant argues that because the DEC has prosecuted an enforcement action against it,
Plaintiff’s RCRA suit is therefore precluded. (See “Def’s Br.” at 11–12.) However, the DEC
enforcement action was a state administrative proceeding, and neither party purports nor does the
record reflect that the DEC pursued action in any state or federal court. Therefore, Defendant’s
argument clearly fails, and Plaintiff’s suit is not precluded under 42 U.S.C. § 6972(b). 4 5
II.

Dismissal or Stay Under the Doctrine of Primary Jurisdiction
Defendant argues that even without the express provision in the RCRA barring citizen

suits, the doctrine of primary jurisdiction precludes the Court from interceding in the DEC’s
jurisdiction. (See Def’s Br. at 10.) Defendant claims that Plaintiff’s injunction claim has
“complete overlap” with the now completed DEC enforcement action. (Id. at 14.) Defendant also
raises the specter of potentially conflicting orders or oversight in connection with the Consent
Order and RAWP. (Id.)
“Primary jurisdiction is a judicially-created prudential doctrine under which courts may,
under appropriate circumstances, determine that the initial decisionmaking responsibility should
be performed by the relevant agency rather than the courts.” In re Methyl Tertiary Butyl Ether

The parties also present arguments regarding whether the DEC has “diligently prosecuted” their agency
action, which is another requirement that must be shown so that the Court can find that the RCRA citizen suit is barred
under 42 U.S.C. § 6972(b). However, because the Court finds no statutory bar to the RCRA citizen suit because there
was no state or federal action in court, the Court need not consider these arguments.

4

In its Reply brief, Defendant attempts to distinguish White Plains Hous. Auth. v. Getty Properties Corp., No.
13-CV-6282 NSR, 2014 WL 7183991, at *11 (S.D.N.Y. Dec. 16, 2014), where the Court similarly found that the
RCRA claim was not precluded under 42 U.S.C. § 6972(b)(2)(C)(i). Defendant argues that in Getty, the DEC had not
yet prosecuted an enforcement proceeding, whereas in this case, there has been such proceeding. (ECF No. 203
(“Def.’s Reply”) at 10.). Defendant’s point is inapposite. The key question is whether DEC has brought action in
state or federal court. Because DEC has not done so, Defendant’s attempt to invoke preclusion under 42 U.S.C. §
6972(b)(2)(C)(i) fails.
5

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(MTBE), No. 1:00-1898, 2007 WL 700819, at *1 (S.D.N.Y. Mar. 7, 2007). “The primary
jurisdiction doctrine is relatively narrow in scope.” Segedie, 2015 WL 2168374, at *13 (quotations
omitted) (quoting In re Frito-Lay, 2013 WL 4647512, at *7). This doctrine “is concerned with
‘promoting proper relationships between the courts and administrative agencies charged with
particular regulatory duties.’” Ellis v. Tribune Television Co., 443 F.3d 71, 81 (2d Cir. 2006)
(quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 63 (1956)). Courts generally consider
four factors: “(1) whether the question at issue is within the conventional experience of judges or
whether it involves technical or policy considerations within the agency's particular field of
expertise; (2) whether the question at issue is particularly within the agency's discretion; (3)
whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application
to the agency has been made.” Ellis, 443 F.3d at 82–83. Primary jurisdiction is properly applied
“whenever enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administrative body.” Id. (quoting
W. Pac. R.R. Co., 352 U.S. at 64). When applicable, “a court defers to the agency for advisory
findings and either stays the pending action or dismisses it without prejudice,” being careful not
to disadvantage either party. Johnson v. Nyack Hosp., 86 F.3d 8, 11 (2d Cir. 1996).
Courts in the Second Circuit and in other circuits have been reluctant to apply the primary
jurisdiction doctrine and abstain from hearing RCRA citizen suits, reasoning that “Congress
clearly signaled that the federal courts have a duty to hear and decide [RCRA citizen suit] claims
and carefully limited the deference courts should pay to the expertise of an administrative agency.”
Fresh Air for the Eastside, Inc. v. Waste Mgmt. of New York, L.L.C., 405 F. Supp. 3d 408, 429–30
(W.D.N.Y. 2019) (citing DMJ Assocs., L.L.C. v. Capasso, 228 F. Supp. 2d 223, 229–30 (E.D.N.Y.
2002); see also Inc. Vill. of Garden City v. Genesco, Inc., No. 0777CV5244JFBETB, 2009 WL

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3081724, at *9 (E.D.N.Y. Sept. 23, 2009) (“Many courts considering abstention and/or dismissal
. . . have determined that where Congress has acted to confer jurisdiction, courts should not act to
undo it.”); Town of Hempstead v. United States, No. 16CV3652JFBSIL, 2017 WL 11699273, at
*10 (E.D.N.Y. Sept. 18, 2017) (“Courts have been reluctant to dismiss or stay actions that are
brought pursuant to statutes in which Congress explicitly confers jurisdiction upon the federal
courts.”).
While the Second Circuit has yet to rule on whether or not the doctrine of primary
jurisdiction can be invoked against RCRA citizen suits, “the Seventh Circuit has held that
abstention ‘would be an end run around RCRA. Congress has specified the conditions under which
the pendency of other proceedings bars suit under RCRA . . . .’” DMJ Assocs., L.L.C., 228 F.
Supp. 2d at 229 (citing PMC, Inc. v. Sherwin–Williams Co., 151 F.3d 610, 619 (7th Cir.1998)
(emphasis in original)). The First Circuit, relying upon Sherwin-Williams, similarly concluded
that “[t]o abstain in situations other than those identified in the statute . . . threatens an ‘end run
around RCRA,’ and would substitute [the court's] judgment for that of Congress about the correct
balance between respect for state administrative processes and the need for consistent and timely
enforcement of RCRA.” Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 31 (1st
Cir. 2011) (citation omitted) (quoting Sherwin-Williams Co., 151 F.3d at 619). The Third Circuit,
too, has stated that “[t]he comprehensiveness of [a court's] equitable jurisdiction is not to be denied
or limited in the absence of a clear and valid legislative command. Here, the enforcement language
of § 6972(a)(1)(B) is generous: it says that a district court may, inter alia, ‘order ... such other
action as may be necessary’ to remedy a violation of the statute. Nothing in this language
precludes, as part of this enforcement authority, measures such as those required by the District
Court here . . . .” Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 267–68 (3d Cir.

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2005) (internal quotations and citations omitted). As another example, the Sixth Circuit has ruled
that the Burford 6 abstention doctrine, which is comparable to the doctrine of primary jurisdiction, 7
“is inappropriate where Congress has already considered which state actions should preclude
federal intervention.” See Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925, 939–
40 (6th Cir. 2018), abrogated on other grounds by Cnty. of Maui, Hawaii v. Hawaii Wildlife Fund,
206 L. Ed. 2d 640, 140 S. Ct. 1462 (2020).
While most courts are reluctant to invoke the primary jurisdiction doctrine in the RCRA
citizen suit context, there are a few instances where district courts have done so, particularly when
the state agency is in the midst of managing remediation efforts. 87th St. Owners Corp. v.
Carnegie Hill-87th St. Corp., 251 F. Supp. 2d 1215, 1220–21 (S.D.N.Y. 2002) (dismissing RCRA
citizen suit seeking injunctive relief where “Plaintiff has identified nothing whatsoever that this
Court could order defendant to do to supplement the DEC's efforts.”); Stratford Holding LLC v.
Foot Locker Retail. Inc., No. CIV-12-0772-HE, 2013 WL 5550461, at *5–6 (W.D. Okla. Oct. 8,
2013) (primary jurisdiction precludes a private RCRA injunction action where the agency is
meaningfully involved and a consent order is issued); McCormick v. Halliburton Co., No. CIV11-1272, 2012 WL 1119493, at *2–3 (W.D. Okla. Apr. 3, 2012) (finding that the court “should
abstain from exercising jurisdiction under the [RCRA] in order to permit the [Oklahoma
Department of Environmental Quality] to continue its investigation, supervision, and remediation
of the Site without the prospect of conflicting directive from this Court as to how the contamination

Under the Burford doctrine, a federal court must decline to interfere with the orders or proceedings of state
administrative agencies: (1) if there are “difficult questions of state law bearing on policy problems of substantial
public import whose importance transcends the result in the case then at bar”; or (2) if the “exercise of federal review
of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with
respect to a matter of substantial public concern.” Fresh Air for the Eastside, Inc., 405 F. Supp. 3d at 425 (citing
Dittmer v. County of Suffolk, 146 F.3d 113, 116 (2d Cir. 1998)).

6

7

See Fresh Air for the Eastside, Inc., 405 F. Supp. 3d at 427.

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should be remedied”); Friends of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333,
1349–50 (D.N.M. 1995) (declining to exercise jurisdiction over environmental claim, where state
agency, which was “far better suited to resolve [the relevant] issues by reason of ‘specialization,
by insight gained through experience, and by more flexible procedure,’” had undertaken
investigation and had entered into stipulated remedial order) (quoting Far East Conference v.
United States, 342 U.S. 570, 575, 72 S. Ct. 492, 96 L. Ed. 576 (1952)); see also Read v. Corning
Inc., 351 F. Supp. 3d 342, 354 (W.D.N.Y. 2018) (applying the primary jurisdiction doctrine to
abstain from hearing Comprehensive Environmental, Response, Compensation and Liability Act
(CERCLA) case where, inter alia, agency process “has advanced to the point where the DEC has
actually approved a specific remedy.”); Collins v. Olin Corp., 418 F.Supp.2d 34, 46 (D. Conn.
2006) (invoking the primary jurisdiction doctrine to dismiss CERCLA claim where “[t]his Court
is convinced . . . that the terms of the Consent Order sufficiently establish that the plaintiffs'
concerns in this case are being addressed by the [state agency].”).
Nonetheless, in light of the weight of case law counseling against the application of the
primary jurisdiction doctrine in the RCRA citizen suit context, the Court leans on the side of
caution and deny Defendant’s request to dismiss or stay. See DMJ Assocs., L.L.C., 228 F. Supp.
2d at 229 (“Congress clearly intended citizen's suits to be an integral part of the enforcement efforts

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for this federal environmental law, supplementing where necessary the actions of state and federal
agencies, and offering a judicial forum to avoid undue delay.”).
The Court also will consider the primary jurisdiction factors themselves, and notes that
factors do not appear to weigh in favor of either abstention or no abstention.
On the first prong, “whether the question at issue is within the conventional experience of
judges or whether it involves technical or policy considerations within the agency's particular field
of expertise,” the parties do not disagree that the DEC has a greater expertise with respect to
investigation, remediation, and monitoring of soil and groundwater pollution. See Collins, 418 F.
Supp. 2d at 45 (“These obligations pertain to investigation and remediating any soil and
groundwater pollution on certain properties . . . Deciding what remedy is appropriate for varying
levels of contamination, and overseeing that remedial effort, is a matter more properly within the
technical expertise and experience of the [state agency].”). That being said, other courts have
found that the judiciary is also generally capable of assessing and determining RCRA regulations
and requirements. See, e.g., Town of Hempstead v. United States, No. 16CV3652JFBSIL, 2017
WL 11699273, at *11 (E.D.N.Y. Sept. 18, 2017) (“Although the need for certain monitoring and
response costs is a technical question, when faced with similar requests for relief involving
environmental clean-up actions, courts have found that those actions do not exceed their level of
knowledge or expertise.”); see also Luckey v. Baxter Healthcare Corp., No. 95–CV–509, 1996
WL 242977, at *5 (N.D. Ill. May 9, 1996) (primary jurisdiction not applicable, despite EPA
expertise, because “[t]housands of tort cases involving technical issues of product design and
safety are decided by courts every year, and the plaintiff's case [is] indistinguishable.... [I]f the

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district court believe[s] that it need[s] information from the EPA, it [can] ask the agency to file an
amicus brief.”).
However, with respect to the second prong, “whether the question at issue is particularly
within the agency's discretion,” the parties do not dispute that the issue of remediation of
groundwater contamination is also one that is well within the DEC’s domain and expertise. Issues
regarding how to remediate contamination “has been committed to the DEC's discretion by the
New York legislature. New York E.C.L. § 27-1313 provides that the DEC ‘shall be responsible .
. . for inactive hazardous waste disposal site remedial programs . . . .’” Read, 351 F. Supp. 3d at
353–54 (citing New York E.C.L. § 27-1313).
Regarding the third prong—whether there exists a substantial danger of inconsistent
rulings—this Court is “cognizant of the participation of other agenc[y] in various aspects of
remediation and would fashion relief that would take into account the role of the other state
agenc[y].” In re Methyl Tertiary Butyl Ether (MTBE), 2007 WL 700819, at *6; Francisco Sanchez
v. Esso Standard Oil Co., 572 F.3d 1, 13–14 (1st Cir. 2009)(“in the event that the remedies
somehow conflict, the parties are free to seek modification of the relevant injunction”); Chico Serv.
Station, Inc., 633 F.3d at 31–32 (“should the threat of conflict arise, we see no reason why federal
court relief could not be structured so as to avoid interference with the [state agency] proceeding”).
In its briefing, Plaintiff raises several issues that it sees in the Consent Order and
accompanying RAWP. The gist of what Plaintiff complains about, based on the work of its own
expert, is as follows:
“. . . require all soil contamination at both the [Service Station] and the adjacent
WPHA property should remediated, have only one remedy (whether the garage is
built or not) and that the excavation exit sampling should be measured against
Residential cleanup criteria, not Commercial Use cleanup criteria. It also believes

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that contaminated groundwater at the bottom of the excavation should be pumped
and treated.”
(ECF No. 191 at 5 n.1.)
In other words, Plaintiff wants (i) more excavation than what is proposed in the RAWP;
(ii) that excavation exit sampling be measured against Residential cleanup criteria, not Commercial
cleanup criteria; and (iii) greater remediation with respect to groundwater. Plaintiff also takes
issue with the fact that the RAWP planned long-term monitoring will be consistent with future
non-residential use of the WPHA site and the Service Station, which Plaintiff, as a housing
authority, deems unacceptable. (Dkt No. 198 at 9.) Plaintiff also contends with the broad
discretion DEC gives itself to apply cleanup criteria based on what it determines to be “feasible”
and that will “minimize” migration onto adjacent property—in other words, Plaintiff is wary that
the DEC can pull back on remediation efforts depending on future obstacles presented. (See ECF
No. 198 at 7–8.) 8
Among Plaintiff’s concerns, the Court finds the following of Plaintiff’s points compelling:
(i) that the RAWP does not do enough to address groundwater contamination; and (ii) that the endpoint excavation efforts should be undertaken under Residential rather than Commercial standards.
Defendant fails to adequately address both points. (See generally Def.’s Reply.) First, Defendant
attempts to address the groundwater issue by pointing to the CP-51 (a policy that provides a
framework and procedures for several DEC remediation program, including the program
applicable here). Defendant highlights that the CP-51 states that site-specific soil cleanup levels
Notably, Plaintiff’s concerns are also driven by its contention that “[DEC] is made of people trying to do the
best they can with limited resources.” (ECF No. 198 at 3.) In other words, Plaintiff does not trust that the DEC will
be able to adequately monitor remediation efforts. Plaintiff points to remediation efforts at a different station nearby—
the Getty Station— and states that the contractor involved in that station closed an excavation and that there was no
evidence that the DEC’s engineer authorized the closing of that excavation prior to its closing. (ECF No. 198 at 3.)
The Court does not place much weight, if any, on this argument, given that it deems this to be an insufficient reason
as to why the federal court should step in on remediation efforts. In any event, Plaintiff’s comments regarding whether
DEC will be able to adequately oversee remediation efforts are speculative at best.
8

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are only applied after “groundwater, if contaminated, has been evaluated for appropriate remedial
actions consistent with 6 NYCRR 375-1.8(d) . . .” (Lefkowitz Decl., Exh. I, (the “CP-51”).)
Defendant also points out that New York law requires that “remedial program at a site shall analyze
the impact of contamination at a site on the following environmental media: (i) soil; (ii)
groundwater . . .” (Def’s Reply at 4 (citing 6 N.Y.C.R.R. 375-1.8(a)(3)). The Court notes that
while Defendant certainly shows that the DEC was obliged to consider groundwater contamination
and ensure a remedial program that addresses such contamination, this does not address Plaintiff’s
concern that there should be more remediation regarding groundwater.
Second, regarding Plaintiff’s argument that Residential Cleanup criteria should have been
used for end-point excavation sampling, Defendant states that DEC represented over email that
CP-51 standards would be used, and that those thresholds are “no less demanding” than the
Residential standards. (Def’s Br. at 13.) (Lefkowitz Decl. Exhs. I and K (September 1, 2021
email).) The Court agrees that it is problematic that the RAWP, dated September 3, 2021, still
reflects that the Commercial Criteria would be used, and upon review of that criteria, it appears
less stringent than the Residential criteria. (See Lefkowitz Decl. Exh. J (Table 375-6.8(b)).
The RCRA allows Plaintiff to seek additional remedy than what is provided by the state to
the extent that it addresses an imminent and substantial endangerment. See In re Methyl Tertiary
Butyl Ether (MTBE) Prod. Liab. Litig., 476 F. Supp. 2d 275, 281–82 (S.D.N.Y. 2007) (“where
there is ‘ample room for injunctive relief beyond [the DEC's] efforts,’ a court need not defer to the
administrative process. Here, the DEC's remedial measures may not go far enough and there
remains ‘ample room’ for this Court's involvement.”); Lambrinos v. Exxon Mobil Corp., No. 1:00CV-1734, 2004 WL 2202760, at *7 (N.D.N.Y. Sept. 29, 2004) (“DEC has not commenced any
precluding court action or remediated to the extent necessary to make the issue of injunctive relief

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moot.”); 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F. Supp. 2d 1215, 1220
(S.D.N.Y. 2002) (“in order to obtain injunctive relief, plaintiff would have to identify some action
that defendant could be ordered to take that is not already in place thanks to the action of the state
agency and that would improve the situation in some way.”); Interfaith Cmty. Org. v. Honeywell
Int'l, Inc., 399 F.3d 248, 267–68 (3d Cir. 2005) (“Depending on the particular characteristics of a
given RCRA site, as found by a district court on a case-by-case basis, particular types of injunctive
relief may not be circumscribed by arguments as to what an agency might have done . . . Here, the
enforcement language of § 6972(a)(1)(B) is generous: it says that a district court may, inter alia,
“order ... such other action as may be necessary” to remedy a violation of the statute.”); see also
In re Methyl Tertiary Butyl Ether (MTBE), 2007 WL 700819, at *5 (“the agencies' regulatory
decisions and remediation plans are guided at least in part by the availability of resources, such
that lack of remedial action by an agency cannot be taken as a decision that no further remediation
is necessary.”).
It might be that the fact-finder may consider the remediation efforts approved by the DEC
as enough to alleviate those concerns and disagrees with Plaintiff’s request for more remediation
with respect to groundwater and excavation, but if not, Plaintiff would be entitled to additional
remediation under the RCRA should it be necessary and in accordance with the RCRA standard.
“The RCRA gives the Court broad equitable powers; the statute authorizes the Court “to restrain
any person who has contributed or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph
(1)(B), to order such person to take such other action as may be necessary, or both.” 87th St.
Owners Corp., 251 F. Supp. 2d at 1219 (citing 42 U.S.C. § 6972(a)). “Thus, the Court may not
only ‘restrain’ a defendant from doing whatever it is doing with hazardous waste that creates the

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environmental danger, but may also order it take any ‘action’ that ‘may be necessary’ to abate that
danger.” Id. (citing Dague v. City of Burlington, 732 F. Supp. 458, 472 (D.Vt.1989) (ordering
closing of landfill)); Lambrinos v. Exxon Mobil Corp., No. 1:00-CV-1734, 2004 WL 2202760, at
*5 (N.D.N.Y. Sept. 29, 2004) (“The excavation and removal of soil alone or in combination with
alternative remediation techniques, sought by plaintiffs falls well within the scope of what the
district court may grant under the broad authority conferred under the RCRA.”) (citing 42 U.S. §
6972(a)(1)(b) and Kara, 67 F.Supp.2d at 310). Notably, the restraint must be related to an
“imminent and substantial endangerment to health or the environment.” See White Plains Hous.
Auth., 482 F. Supp. 3d at 116. A finding of imminency “require[s] a showing that actual harm will
occur immediately.” Id. (citing Dague, 935 F.2d at 1356). An “‘imminent hazard’ may be
declared at any point in a chain of events which may ultimately result in harm to the public. Id.
“For the endangerment to be ‘“substantial,’ there must be ‘reasonable cause for concern that
someone or something may be exposed to risk of harm if prompt remedial action is not taken.’”
Id. (citing Fresh Air for the Eastside, 405 F. Supp. 3d at 438).
The Court notes that there has already been extensive back and forth that the parties have
already engaged in with the DEC, including the thorough work by experts and the DEC’s
evaluation of expert reports. The goal of whatever remediation Plaintiff can avail itself under the
RCRA is to supplement that already provided by the DEC. The Court warns that to the extent that
Plaintiff seeks to expand remediation efforts for purposes of its future development project, such
purpose is not a valid ground to seek an injunction under the RCRA. See Interfaith Cmty. Org. v.

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Honeywell Int'l, Inc., 399 F.3d 248, 266 (3d Cir. 2005) (implying that it is improper to consider
property development interests when finding that an injunction under the RCRA is necessary).
Lastly, the Court considers the fourth factor—whether a prior application to the agency has
been made. Here, the DEC has already brought its own agency enforcement action with respect
to the contamination, which resulted in the August 2021 Consent Order and the adoption of a work
plan. (Def’s Br. at 17.) Therefore, this factor would favor a stay, though it is worth noting that
the parties have previously entered into a consent order in 2018, which Defendant failed to abide
by. See White Plains Hous. Auth., 482 F. Supp. 3d at 112. The instant consent order was presented
to Defendant in January 17, 2019 but subsequently revised and signed more than two years later,
in August 2021. Id. at 113. Given the long-span of time it has taken to go through the remediation
process, in large part by Defendant’s own delays and previous failure to comply with the NYDEC’s
orders, the Court deems it prudent to maintain jurisdiction in order to ensure that Defendant’s
RCRA obligations are met. 9
III.

Plaintiff’s Motion to Preclude Parking Garage Plans
Plaintiff seeks to preclude two drawing of the parking garage plans, which are referenced

in Mr. Canavan expert report, dated March 26, 2021, as well as Mr. Canavan’s testimony to the
extent he discusses those drawings and uses them to form his opinion, and statements made in the

Plaintiff heavily relies on Cnty. of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1308 (2d Cir. 1990),
a case brought under the federal racketeering statute, and cites to that case to argue that the “primary jurisdiction
doctrine only applies to agencies created by Congress, not state agencies.” (See ECF No. 198 at 7 (citing Cnty. of
Suffolk, 907 F.2d at 1310 (“It is our view that the doctrine ordinarily may not be applied where, as here, the claim is
brought under federal law and there are no competing federal forums.”)). While this proposition has not been
explicitly abrogated, it does not appear to have been followed by subsequent decisions. For example, in Johnson v.
Nyack Hospital, the Second Circuit held that, under the primary-jurisdiction doctrine, the district court should have
stayed the plaintiff's federal antitrust claim pending a state administrative agency's determination of the factual issues
underlying the Sherman Act claim. 964 F.2d 116, 122–23 (2d Cir.1992); see also Read v. Corning Inc., 351 F. Supp.
3d 342, 350 (W.D.N.Y. 2018) (invoking the primary jurisdiction doctrine to dismiss plaintiff’s request for relief under
CERCLA in favor of the state agency proceedings.).
9

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RAWP to the extent that they rely on the drawings to form a recommendation regarding Option 2.
(See ECF No. 191 at 10, 14; ECF No 192-6 (Caravan Expert Report); ECF No. 192-7 (depicting
the two parking garage plans); the RAWP). 10 Plaintiff argues that these drawings are “are undated,
and do not indicate who authored them, for whom they were prepared, or for what purpose. The
drawings are not signed and/or sealed by a licensed engineer (or anyone else).” (Id.) Plaintiff
argues that “there is no evidentiary basis to assume the drawings are authentic, that the ‘conceptual’
garage purported be depicted in the drawings will ever be built or if it is, it would be built to the
dimensions outlined in those drawings, and Mr. Canavan has had no communication with the City
about the drawings.” (ECF No. 191 at 10–11.)
“A district court's inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d
173, 176–77 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)). An in
limine motion is intended “to aid the trial process by enabling the Court to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without
lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996). “[C]ourts considering a motion in limine may reserve judgment until trial, so that the
motion is placed in the appropriate factual context.” United States v. Ozsusamlar, 428 F. Supp. 2d
161, 165 (S.D.N.Y. 2006). “Because a ruling on a motion in limine is ‘subject to change as the
case unfolds,’ this ruling constitutes a preliminary determination in preparation for trial.” United
States v. Perez, No. 09–CR–1153 (MEA), 2011 WL 1431985, at *1 (S.D.N.Y. Apr. 12, 2011)
(quoting Palmieri, 88 F.3d at 139).

The Court notes that Plaintiff impermissibly used the opportunity it was given to brief on its motion to
preclude to instead, in large part, anticipatorily argue against Defendant’s cross-motion to dismiss or stay in the
alternative. (See ECF No. 191.) The Court is within its discretion to disregard the portions of the brief not relevant
to Plaintiff’s motion to preclude, and warns Plaintiff against engaging in similar conduct in the future.

10

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Plaintiff seeks to preclude these garage plan drawings and related testimony under Fed. R.
Evid. R. 402 and 901(a). Under Rule 402 of the Federal Rules of Evidence, relevant evidence is
admissible, and irrelevant evidence is not. See Fed. R. Evid. 402. In addition, Rule 901(a) provides
that “[t]o satisfy the requirement of authenticating or identifying an item of evidence the proponent
must produce evidence sufficient to support of a finding that the item is what the proponent claims
it is.” See United States v. Hon., 904 F.2d 803, 809 (2d Cir. 1990).

As a general matter, “a

document is properly authenticated if a reasonable juror could find in favor of authenticity.”
United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). “The bar for authentication of
evidence is not particularly high,” id., and “the proponent need not rule out all possibilities
inconsistent with authenticity,” United States v. Oreckinto, 234 F. Supp. 3d 360, 365 (D. Conn.
2017) (citation omitted). In addition, the Second Circuit “[has] stated that the standard for
authentication is one of ‘reasonable likelihood,’ and is ‘minimal.’ . . . The testimony of a witness
with knowledge that a matter is what it is claimed to be is sufficient to satisfy this standard. United
States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (internal citations and quotations omitted);
see also Scotto v. Brady, 410 F. App’x 355, 361 (2d Cir. 2010) (“The trial court has broad
discretion in determining whether an item of evidence has been properly authenticated, and we
review its ruling only for abuse of discretion.”
For the foregoing reasons, the Court RESERVES JUDGMENT regarding Plaintiff’s
request to exclude the two drawings.
The Court finds that the drawings and expert testimony with respect to those drawings are
relevant under Fed. R Evid. 402, given that they are among the documents that helped to inform
one of the remediation options under the RAWP. The Court, however, reserves judgment on
Plaintiff’s motion to exclude based on Fed. R. Evid. 901(a). At this time, the Court sees no reason

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to preclude the documents, given that Defendant may call in a witness to establish such
authentication should this case proceed to trial and should they seek to enter these figures into
evidence. With respect to Plaintiff’s desire to exclude portions of the expert report and the RAWP
referencing these figures, Plaintiff cites to no rule or case law in support of their request. Surely,
Mr. Caravan can be cross-examined and Plaintiff can poke holes in the expert’s recommendation
to the extent that he relied on the conceptual drawings. But there is no basis here to exclude
portions of his expert report, or even parts of the RAWP that rely on those portions of the expert
report.
CONCLUSION
For the foregoing reasons, the Court RESERVES JUDGMENT on Plaintiff’s motion to
preclude and DENIES Defendant’s motion to dismiss, or in the alternative, stay the action.
The Clerk of Court is respectfully directed to terminate the motion at ECF Nos. 193, 197.
Dated: December 19, 2022
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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