Abbo-Bradley et al v. City of Niagara Falls et al

Filing 125

DECISION AND ORDER granting 46 application of Defendant Glenn Springs Holdings. Plaintiffs and their attorneys are hereby enjoined, until further notice or order from this court, from conducting environmental sampling without providing GSH written notice at least 96 hours prior to sampling, contemporaneous access, and an opportunity to take split samples. Signed by Hon. John T. Curtin on 7/18/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOANN ABBO-BRADLEY, et al.,
Plaintiffs,
v.

13-CV-487-JTC

CITY OF NIAGARA FALLS, et al.,
Defendants.

APPEARANCES:

PHILLIPS & PAOLICELLI, LLP (STEVEN J. PHILLIPS,
ESQ., of Counsel), New York, New York, Attorneys for
Plaintiffs.
PHILLIPS LYTLE LLP (KEVIN M. HOGAN, ESQ.),
Buffalo New York, Attorneys for Defendant Glenn
Springs Holdings, Inc.

This action was commenced in New York State Supreme Court, Niagara County,
on April 10, 2012, by three families who own homes and reside in the vicinity of the Love
Canal Landfill (the “Landfill”) in the City of Niagara Falls, New York, seeking damages and
equitable relief based on personal injuries and property damage caused by alleged
releases of toxic chemicals and hazardous waste deposited at the site. See Item 1-1 (First
Amended Complaint). The case was removed to this court upon entry of a Notice of
Removal on May 8, 2013, filed by defendant Miller Springs Remediation Management, Inc.
(“MSRM”) and consented to by all defendants, on the basis of original federal jurisdiction
under the Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et seq. Item 1 (Notice of Removal). Plaintiffs have moved

to remand the case to state court (Item 61), and the court has set a briefing schedule for
consideration of the remand motion (Item 62).
Meanwhile, on June 4, 2013, defendant Glenn Springs Holdings, Inc. (“GSH”) filed
a motion pursuant to Fed. R. Civ. P. Rule 65 for preliminary injunctive relief, seeking to
maintain the status quo of discovery pending the determination of the remand motion by
enjoining plaintiffs and their attorneys from conducting environmental sampling in the area
of the Landfill without providing: (1) written notice at least 96 hours prior to any such
environmental sampling; (2) contemporaneous access to such environmental sampling;
and (3) an opportunity to take split samples of all such environmental samples. Item 46.
The motion was accompanied by a request for expedited hearing, which the court granted
by order entered June 5, 2013 (Item 53), setting a schedule for briefing and oral argument.
Plaintiffs filed a lengthy opposing brief (Item 88), and counsel for defendants ConestogaRovers & Associates, Inc. (“CRA”), Sevenson Environmental Services, Inc. (“Sevenson”),
Gross PHC, LLC (“Gross”), and NFWB have filed declarations or affidavits in support of
the relief requested by GSH. Items 100, 103, 105, 111.1 Oral argument was heard on July
10, 2013, and the court entered an order temporarily restraining any further environmental
sampling activity in the area of the Landfill pending a ruling on the application for injunctive
relief. Item 115.
The court has now had the opportunity to fully consider and rule upon the issues
raised by the application, and for the reasons that follow, grants GSH’s motion for
injunctive relief.

1

Plaintiffs’ motion (Item 110) to strike these supporting declarations and affidavits was denied by
the court in its previous order. Item 115.

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BACKGROUND
GSH is a wholly owned subsidiary of the Occidental Petroleum Corporation (or
“OXY”).

Since July 1, 1998, GSH has managed the operation, maintenance and

monitoring (“OMM”) of the remedial systems at the Love Canal site in coordination with its
contractor, CRA, and under oversight of the New York State Department of Environmental
Conservation (“NYSDEC”). See Item 1-4 (USEPA Five-Year Review Report, Sept. 2008),
pp. 18-20.
The original complaint in this action was brought against GSH and CRA, along with
the City of Niagara Falls (“City”) and the Niagara Falls Water Board (“NFWB”),2 alleging
personal injuries and property damage resulting from a “sudden and accidental” discharge
of hazardous chemicals, including “ ‘signature’ contaminants that can be directly linked to
the Love Canal Superfund Site,” during an excavation of underground sanitary sewer pipe
in the area of the Colvin Boulevard and 96th Street on January 11, 2011. See Item 3-5,
¶ 13. The 15-page complaint set forth causes of action based on common law negligence,
abnormally dangerous activity, nuisance, and trespass.
On March 26, 2013, upon retention of new counsel, plaintiffs filed a 45-page First
Amended Complaint which added several additional defendants and causes of action,
significantly expanding the scope of the action to encompass claims relating to the design,
implementation, operation and maintenance of the remediation and containment system

2

The complaint also named the County of Niagara as a defendant, but the County was
subsequently dismissed from the action by stipulated order entered August 14, 2012. Item 4-4.

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at the Love Canal Landfill. See Item 1-1. Defendants then removed the case to federal
court, and motion practice has flourished.3
Shortly before removal, on February 1, 2013, plaintiffs filed a motion in state court
for an Order to Show Cause With Temporary Restraining Order seeking an order directing
the City and NFWB to:
a.

preserve and maintain adequate and representative samples of any
and all material removed from the ground, streets, sewers and
neighborhood, in the Love Canal Area … whether such materials are
obtained as a result of excavation, scientific testing, construction,
maintenance, remediation, repair, and/or for any other reason;

b.

provide plaintiffs with notice of any prospective work in the Love Canal
Area and/or relating to the Love Canal Site no fewer than 96 hours in
advance of such work …;

c.

permit plaintiffs’ experts and/or representatives to be on-site for such
prospective work relating to (a) and allow such experts and/or
representatives to take samples of any such physical evidence in
quantities sufficient for inspection and testing before such evidence
is in any way modified, destroyed, degraded, moved, removed,
transported, or disposed ….

Item 46-4, p. 4.
In support of their motion in state court, plaintiffs’ counsel, Steven J. Phillips, Esq.,
submitted an affirmation stating that, unless their request for injunctive relief was granted,
plaintiffs would suffer irreparable harm by being “stripped of the ability to identify and

3

In addition to the present motion, plaintiffs’ remand motion, and motion to strike, several
defendants have moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted. See Item 67 (GSH, MSRM, Oxy, Inc.); Item 71 (City); Item 78
(Op-Tech Environmental Services); Item 82 (Sevenson Environmental Services, Inc.); Item 85 (Kandey
Company, Inc.); Item 102 (Gross PHC, LLC); Item 104 (Roy’s Plumbing, Inc.); Item 106 (Scott Lawn Yard,
Inc.). These motions have also been scheduled for briefing, and will be taken up by the court (if
necessary) upon determination of the remand motion.

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determine independently the materials to which they have been exposed ....” Item 46-4,
p. 14, ¶ 26.
Indeed, the very act of dislodging, removing, and/or transporting materials
containing toxins can alter the chemical composition of such materials.
Subsequent testing following disruption and a period of time would,
therefore, yield inaccurate results as to the composition of the materials (if
the materials could be tested at all after the passage of time).
…
This motion is made by Order to Show Cause because time is of the
essence in preserving materials that may be removed from the Love Canal
site and the surrounding neighborhoods. As demonstrated by the annexed
affidavit of [environmental consultant] Frank Beodray, the chemical …
composition of such materials changes rapidly over time, necessitating
advance notice of any such activity and the opportunity to take a
contemporaneous sample for scientific testing.
Id. at p. 16-18, ¶¶ 34, 39. Counsel further affirmed that:
Plaintiffs, of course, have the right to sample and test the chemical
composition of any material present within the boundaries of their own
property. And Plaintiffs have begun to do so. Such preliminary testing of
Plaintiffs’ homes has revealed the presence of a host of toxins – well in
access of allowable regional screening guideline limits – known to be
associated with the Love Canal dumpsite.
Id. at ¶ 27.
Plaintiffs, the City, and the NFWB eventually agreed upon the language for a
Restraining Order, which was signed by New York State Supreme Court (Acting) Justice
Matthew J. Murphy on March 8, 2013. Item 46-5. Pursuant to this order (made effective
for 18 months), the City and NFWB are required to provide plaintiffs’ attorneys with prior
written notice of “any regularly scheduled prospective excavation, scientific testing,
construction, maintenance, remediation, repair, and/or work performed for any other
reason in the Love Canal Area and/or relating to the Love Canal site …,” as well as

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contemporaneous access and an opportunity to take environmental samples. See id. at
pp. 2-7.
On April 30, 2013, upon receiving information that plaintiffs had a “geoprobe drill”
in the Love Canal neighborhood to conduct their own environmental sampling, counsel for
GSH e-mailed plaintiffs’ counsel requesting preservation of any evidence collected, along
with “notice of sampling, and contemporaneous access to each sampling site for the
purpose of obtaining a split sample.” Item 46-6, p. 2. Counsel also proposed that the
parties make an effort to “agree upon a mutually acceptable protocol to apply to any future
sampling in the Love Canal neighborhood.” Id. Plaintiffs’ counsel replied that he was
unable to accommodate these requests, based upon his view that “[p]laintiffs are not
obligated under the applicable rules to permit defendants to participate in our
investigation ….” Id.
As a result, GSH went back to state court for an Order to Show Cause With
Temporary Restraining Order, signed by Judge Murphy on May 2, 2013 and made
returnable May 6, 2013, requiring plaintiffs to provide split samples of all previouslyobtained environmental samples, and restraining plaintiffs from conducting further
environmental sampling without providing GSH with prior notice, contemporaneous access,
and the opportunity to take split samples. See Item 46-7. E-mail communications dated
May 3, 2013 indicate that plaintiffs and GSH reached an agreement to adjourn the return
date to a mutually agreeable later date in order to accommodate “more substantial briefing
than the present timing would allow …,” Item 46-8, p. 2, and that plaintiffs agreed not to
engage in any new environmental sampling until after May 27, 2013, or until after the court
decided the matters raised by the order to show cause, whichever came first. See id.
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Then, on May 8, 2013 – before the state court could rule on those matters – the case was
removed to this court, and GSH now seeks the same relief here by way of the present
motion for a preliminary injunction under Fed. R. Civ. P. 65.
GSH contends that, given the nature of plaintiffs’ claims in this action, any sampling
of soil, groundwater, air, or other environmental conditions in the area of the Love Canal
– whether taken from plaintiffs’ private property, the Landfill itself, or other locations within
the neighborhood – is evidence in the case that is potentially relevant and subject to
discovery by all parties under the Federal Rules. According to GSH, and as acknowledged
by plaintiffs in their application for substantially similar injunctive relief in state court, given
the uncontrolled and potentially changing environmental conditions at the properties
throughout the neighborhood; the rapidly changing nature of the samples after they are
extracted; and the variability of sampling techniques that can affect the reliability of any
analytical test results, a protocol for contemporaneous access and opportunity to take split
samples is necessary to prevent prejudice to other parties and the public interest.
Plaintiffs oppose GSH’s request for prior notice of sampling activity,
contemporaneous access, and opportunity to obtain split samples, maintaining that:
(1)

this court lacks jurisdiction to issue the injunctive relief sought;

(2)

GSH’s application seeks to invade the work product, attorney-client, mental
impression, and other recognized privileges and protections; and

(3)

GSH has not demonstrated entitlement to the injunctive relief sought.

See Item 88.

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DISCUSSION
1.

Jurisdiction
Plaintiffs contend as a threshold matter that, as demonstrated by the materials

submitted in connection with their motion for remand, this court lacks subject matter
jurisdiction over the claims asserted in this action, and therefore, lacks jurisdiction to grant
the relief sought by GSH. However, those same jurisdictional issues have been raised by
the motion for remand, and will be considered by the court in full upon completion of the
current briefing schedule (and if deemed necessary, further argument). Pending the
court’s determination of the remand motion, discovery in the case has been suspended,
and GSH has requested provisional injunctive relief to maintain the discovery status quo
in order to afford the parties equal access to, and to avoid spoliation of, any discoverable
evidence that might be produced as a result of plaintiffs’ sampling activity.
It is well settled that, in such circumstances, this court “has the authority to
determine its own jurisdiction in a matter before it, and to maintain the status quo, as by
issuance of a temporary restraining order, pending the determination of the issue.” United
States v. Thompson, 319 F.2d 665, 667 (2d Cir. 1963) (citing United States v. United Mine
Workers of America, 330 U.S. 258, 290 (1947) (“In these circumstances, the District Court
unquestionably ha[s] the power to issue a restraining order for the purpose of preserving
existing conditions pending a decision upon its own jurisdiction.”). Maintaining the status
quo is precisely what GSH seeks to accomplish by the present application.

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2.

Work Product/Attorney-Client Privilege
Plaintiffs’ primary objection to defendants’ proposal for establishing a protocol for

notice, contemporaneous access, and opportunity for the parties to take split samples is
based on the assertion of the work product doctrine, which protects from pretrial disclosure
“documents and tangible things that are prepared in anticipation of litigation or for trial by
or for another party or its representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). As recognized by the
Second Circuit, there are two types of work product subject to this qualified protection:
“opinion” work product, relating to the mental impressions of counsel, see United States
v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998), and “fact” work product, relating to factual
investigations and technical analyses. In re Grand Jury Subpoena Dated July 6, 2005, 510
F.3d 180, 183 (2d Cir. 2007) (“[F]act work product may encompass factual material,
including the result of a factual investigation.”), cert. denied, 553 U.S. 1094 (2008). The
Second Circuit has noted further that:
While it may well be that work product is more deeply concerned with the
revelation of an attorney's opinions and strategies, and that the burden of
showing substantial need to overcome the privilege may be greater as to
opinions and strategies than as to facts, we see no reason why work product
cannot encompass facts as well. It is helpful to remember that the work
product privilege applies to preparation not only by lawyers but also by other
types of party representatives including, for example, investigators seeking
factual information.
In re Grand Jury Subpoena Dated October 22, 2001, 282 F.3d 156, 161 (2d Cir. 2002); see
also Feacher v. Intercontinental Hotels Group, 2007 WL 3104329, at *4 (N.D.N.Y. Oct. 22,
2007) (work product doctrine “does not stop at protecting mere litigation strategy, but
instead goes further to insure that, by affording protection to the results of investigations
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into litigated claims, the adversary system upon which our civil judicial system is predicated
the interests of justice will best be served”).
It is also widely recognized that, while the work product doctrine may in some
circumstances protect from pretrial disclosure the results of a factual investigation
undertaken by a party or its consultant in anticipation of litigation, the doctrine “does not
protect facts concerning the creation of work product, or facts contained within work
product.” 6 MOORE’S FEDERAL PRACTICE, § 26.70[2][a], p. 26-435 (citations omitted); see
Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 230 (E.D.N.Y. 2007) (“Work product
protection typically applies only to ‘documents and tangible things,’ and not to facts within
the documents.”); In re Savitt/Adler Litig., 176 F.R.D. 44, 48 (N.D.N.Y. 1997) (“limited
protection” for factual information, which “serves to prevent exploitation of the efforts of
another party in preparing for litigation,” does not extend to the facts themselves).
In this case, plaintiffs characterize the information sought to be protected as the
mental impressions of counsel and their environmental consultants regarding internal
strategy discussions about where, when, and whether to engage in soil and groundwater
sampling.

According to plaintiffs, providing defendants with advance notice,

contemporaneous access to sampling sites, and split samples of the materials collected
would not only unfairly prejudice plaintiffs’ trial preparation efforts by affording defendants
a “free look” into plaintiffs’ overall litigation strategy for prosecution of this action, but would
also result in “coercive and chilling restraints” on other anticipated, but as yet unfiled,

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actions on behalf of other area residents claiming harm as the result of releases of toxic
substances from the Landfill.4 Item 88-1 (Phillips Affirmation), ¶ 13.
Upon consideration of the matters set forth in the submissions on file, and after
hearing oral argument, the court takes a somewhat different view of the underlying
motivation for GSH’s present application. GSH does not seek discovery of the mental
impressions of counsel or their consultants, or the results of any factual investigations or
technical analyses prepared for the purposes of this litigation. GSH seeks discovery of
facts, in the unique form of the constituent contaminant levels in the chemical composition
of soil, water (surface and ground), and air samples taken from the environment in the area
of the Landfill, likely to be relied upon as evidence in support of the claims and defenses
in the case.
Nor does the application seek to prevent concerned residents who may be
contemplating legal action from sampling the environmental conditions on their own
properties. Rather, the application seeks only to establish a protocol for prior notice,
contemporaneous access, and opportunity for split sampling in order to ensure that all
parties (or potential parties) have fair and equal access to any materials that might be
obtained from the sampling activity, and later relied on as evidence in the case. This
makes good sense, given the general agreement among the parties regarding the volatile
nature of subsurface conditions in the City of Niagara Falls (and, more particularly, the
Love Canal area); the impact of weather and other environmental conditions at the time

4

According to plaintiffs’ counsel Steven J. Phillips, “several hundred other individuals” have
retained the services of his law firm “to advise them whether or not to commence suit on their behalf ….”
Item 88-1, ¶ 2.

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of sampling; the limited time frame for effective testing of contaminant levels in the
samples; and other spoliation concerns.
Indeed, plaintiffs voiced these same concerns, and relied upon the very same
rationale now urged by GSH, in obtaining the March 8, 2013 Restraining Order in state
court requiring the City and NFWB to provide plaintiffs with advance notice,
contemporaneous access, and opportunity for split sampling related to street and sewer
work in the area of the Landfill. As recognized by plaintiffs’ counsel in his affirmation
submitted in support of the state court application, “time is of the essence” in preserving
any materials obtained as a result of those activities because “the chemical … composition
of such materials changes rapidly over time, necessitating advance notice of any
[sampling] activity and the opportunity to take a contemporaneous sample for scientific
testing.” Item 46-4, p. 18, ¶ 39.
Plaintiffs contend that this rationale arose in the non-litigation context of remedial
excavation work being performed by local government entities, as distinguished from the
context of drilling and sampling by plaintiffs’ own retained consultants on private property
(including the property of non-parties contemplating suit) motivated by the litigation efforts
of counsel. However, this court’s reading of Judge Murphy’s March 8, 2013 order clearly
indicates that the notice, access, and sampling protocol established therein pertains to “any
regularly scheduled prospective excavation, scientific testing, construction, maintenance,
remediation, repair, and/or work performed for any other reason in the Love Canal Area
and/or relating to the Love Canal site” by the City or the NFWB (Item 46-5, pp. 3-4),
suggesting a much broader scope than the limited reading now urged by plaintiffs. Viewed
in this light, plaintiffs’ argument in opposition to GSH’s request for adoption of the same
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notice, access, and split sampling protocol for preservation of evidence obtained as the
result of plaintiffs’ own environmental sampling activities cannot logically be reconciled with
the arguments made in support of their state court application.
Moreover, as discussed above, the work product doctrine does not immunize
litigants or their consultants from disclosing the underlying facts obtained during the course
of their investigations.

Under these principles, the facts relating to the chemical

composition of the materials obtained as the result of environmental sampling in the
neighborhood surrounding the Love Canal Landfill site, as well as the location, manner,
and timing of the sampling activity, are discoverable, potentially relevant, and not protected
from disclosure by the work product doctrine.
“In addition, when a party takes a position in a case that places at issue the very
information sought to be protected from disclosure by the work product doctrine, the
protection may be waived.” Occidental Chemical Corp. v. OHM Remediation Services
Corp., 175 F.R.D. 431, 435 (W.D.N.Y. 1997), quoted in Coastline Terminals of
Connecticut, Inc. v. U.S. Steel Corp., 221 F.R.D. 14, 17 (D.Conn. 2003) (when property
owner brought CERCLA response cost action against former owner, it placed at issue
factual information contained in environmental consultant’s reports with respect to site
conditions, data and remediation efforts). In this case, there can be no question that when
they brought this action for damages and equitable relief stemming from the discharge of
hazardous materials into the environment as a result of defendants’ alleged negligent
operation, maintenance and monitoring of the remedial systems at the Love Canal Landfill,
plaintiffs placed at issue the chemical composition of the soil, water, groundwater, air, and
other environmental conditions present in the surrounding neighborhoods – the very
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information they now seek to protect from disclosure under the shield of the work product
doctrine.
Accordingly, plaintiffs have not established on this record that granting the injunctive
relief sought by GSH would result in the discovery of documents or tangible things
prepared by plaintiffs’ counsel or their consultants in anticipation of litigation.
Finally, although not vigorously pursued in the briefing and argument of the present
application, plaintiffs have (somewhat obliquely) asserted the attorney-client privilege as
a further ground for their objection to the notice, site access, and split sampling protocol
sought by GSH. This ground must also be rejected, for several reasons.
First of all, the party claiming the privilege bears the burden of demonstrating that
there was: “(1) a communication between client and counsel, which (2) was intended to be
and was in fact kept confidential and (3) made for the purpose of obtaining or providing
legal advice.” United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d
Cir. 1996). None of these elements have been established on the present record.
More to the point, as discussed above with respect to the work product doctrine,
even if providing defendants the opportunity for split sampling could somehow be
construed as an intrusion on confidential communications between plaintiffs’ counsel and
their clients, the factual and scientific evidence collected through observation of the
physical condition of the property in the area of the Landfill “can never be protected by the
attorney-client privilege and neither can the resulting opinions and recommendations” of
the environmental consultants, scientists, or engineers employed to gather the data, “since
the information collected will generally be factual, obtained from sources other than the
client.” United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156,
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162 (E.D.N.Y. 1994), cited in Occidental Chemical v. OHM Remediation, 175 F.R.D. at
437.
For these reasons, the court finds that the relief sought by GSH in the present
application is not barred by the work product doctrine or the attorney-client privilege.

3.

Preliminary Injunction
“A party seeking injunctive relief ordinarily must show (a) that it will suffer irreparable

harm in the absence of an injunction and (b) either (i) a likelihood of success on the merits
or (ii) sufficiently serious questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly in the movant’s favor.” Belile v. Doe
No. 1, 2012 WL 3562032, at *1 (W.D.N.Y. Aug. 16, 2012), quoting Tom Doherty Assoc.
v. Saban Entm’t, Inc., 60 F.3d 27, 33 (2d Cir. 1995). With regard to irreparable harm, the
court agrees with GSH that allowing plaintiffs to continue their drilling and sampling
activities without an established protocol for equal or equivalent access could result in
spoliation of essential and relevant evidence, given the volatile and dynamic environmental
conditions in the Love Canal Landfill area, the uncontrolled locations from where the
samples were taken, the rapidly changing nature of the samples after they are extracted,
and the variability of sampling techniques that can affect the resulting reliability of any
analytical test results. This is sufficient to establish irreparable harm in the absence of the
injunctive relief sought, not just to GSH’s asserted interest in equal access to potentially
relevant and essential evidence, but also to the parties’ common interest in fair resolution
of the serious public health concerns raised by the allegations in the First Amended
Complaint.
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Further, the court’s review and consideration of the parties’ arguments with respect
to the relief requested on this application, as well as counsel’s forceful advocacy of their
respective positions as demonstrated both in the written submissions and at oral argument,
reveals sufficiently serious questions going to the merits of the application to make them
a fair ground for litigation. Plaintiffs have not convinced the court that they will suffer any
prejudice or significant inconvenience as a result of the requirement that they give
defendants prior notice, allow contemporaneous access to sampling locations, and provide
the opportunity to obtain split samples, since they will maintain control over all aspects of
their environmental sampling activities. To paraphrase plaintiffs’ counsel’s argument in
state court:
All that [GSH] seek[s] in this application is the ability to take
contemporaneous samples of materials, before such materials are disturbed,
to ensure that they are preserved and appropriately analyzed.
…
The presence of [GSH’s] representatives and/or experts will impose no
undue burden or expense upon [plaintiffs]. Indeed, the sampling requested
would simply require [GSH’s] representatives to be present for a short period
of time to take appropriate samples of materials.
Item 46-4, ¶¶ 15, 37.
Accordingly, the court finds that a balance of hardships tips decidedly in defendants’
favor, and considerations of fairness and equity require granting GSH’s application for an
order maintaining the status quo with respect to the parties’ fair and equal access to
environmental sampling evidence until such time as the subject matter jurisdiction of the
court is determined on the pending motion for remand.

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CONCLUSION
For all the foregoing reasons, the application of GSH (Item 46) (joined by
defendants CRA, Sevenson, Gross, and NFWB) is granted. Plaintiffs and their attorneys
are hereby enjoined, until further notice or order from this court, from conducting
environmental sampling in the neighborhood surrounding the Love Canal Landfill site
without providing GSH (and all other parties and relevant governmental agencies):
(1)

written notice at least 96 hours prior to any such environmental sampling;

(2)

contemporaneous access to such environmental sampling; and

(3)

an opportunity to take split samples of all such environmental samples.

So ordered.
\s\ John T. Curtin______
JOHN T. CURTIN
United States District Judge
Dated: July 18, 2013
p:\pending\2013\13-487.jul18.2013

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