Talarico Bros. Building Corp. et al v. Union Carbide Corporation et al

Filing 61

DECISION AND ORDER -- IT HEREBY IS ORDERED, that Defendants' Motion to Dismiss (Docket No. 29) is GRANTED. FURTHER, the Clerk of Court is DIRECTED to close this case. SO ORDERED. Signed by William M. Skretny, United States District Judge on 4/26/2021. (JCM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TALARICO BROS. BUILDING CORP., et al.,
Plaintiffs,
DECISION AND ORDER

v.

17-CV-1041S
UNION CARBIDE CORP., et al.,
Defendants.

I.

Introduction

This is a Resource Conservation and Recovery Act citizen suit, 42 U.S.C. § 6972
(“RCRA”), with related state tort claims by property owners in Niagara and Erie Counties,
New York, against the present and former owners of chemical plants that allegedly
released radioactive slag deposited on their properties (see Docket No. 26, Am. Compl.
¶¶ 1-6, 22-23, 36-38, 63, 70-78).
Before this Court is Defendants’ Motion to Dismiss (Docket No. 29). For the
reasons stated herein, Defendants’ Motion to Dismiss (id.) is granted.
II.

Background

Twenty-eight Plaintiffs 1 who own twenty affected properties collectively sue three
chemical plant operators (Docket No. 26, Am. Compl. ¶¶ 10-31), alleging that Defendants
Union Carbide Corporation, Occidental Chemical Corporation, and Bayer Cropscience

1 Among these Plaintiffs are Robert Ward and Betty Moticka, who own property on Creek Road in
Lewiston (Docket No. 26, Am. Compl. ¶ 21) with a mortgage held by Intervenor MTGLQ Investors, LP.
MTGLQ Investors moved to intervene, which was granted, Talarico Bros. Builders Corp. v. Union Carbide
Corp., 2021 WL 732692 (W.D.N.Y. Feb. 25, 2021) (Skretny, J.), Docket No. 60.

Inc. (or their predecessors, see id. ¶¶ 33-35) buried radioactive slag on their respective
properties over the twentieth century (Docket No. 26, Am. Compl. ¶¶ 1, 49; see Docket
No. 29, Defs. Memo. at 2).
Plaintiffs allege that radiation levels on their properties became subject to federal
and state agency scrutiny since the 1970s, with reports concluding that there were
“elevated levels of radiation” in and around those properties (Docket No. 29, Defs. Memo.
at 4). They claim that they suffer from decreased property values, stigma damages,
medical monitoring costs for unspecified conditions, and investigation and cleanup costs
(Docket No. 26, Am. Compl. ¶ 47; see Docket No. 29, Defs. Memo. at 4). Plaintiffs
conclude that Defendants placed the radioactive slag on Plaintiffs’ properties, making
what they term “an awful mess,” and “that it was high time they clean it up” (Docket No. 34,
Pls. Memo. at 1). Defendants note, however, that the Amended Complaint does not
specify any present physical injuries to their properties (Docket No. 29, Defs. Memo. at
4).
The First Cause of Action is the citizen suit under RCRA for Defendants allegedly
generating and depositing radioactive solid wastes on Plaintiffs’ parcels (id. ¶¶ 71-73).
The Second Cause of Action alleges New York State common law strict liability
based on ultrahazardous or abnormally dangerous activity (id. ¶¶ 80-81). The Third
Cause of Action alleges common law negligence (id. ¶¶ 83-86). The Fourth Cause of
Action alleges a private nuisance (id. ¶¶ 88-93). The Fifth Cause of Action then alleges
a public nuisance (id. ¶¶ 95-98). Finally, the Sixth Cause of Action alleges trespass (id.
¶¶ 100-02).

2

Plaintiffs seek injunctive relief under RCRA, including ordering Defendants to fully
evaluate each property and remove all radioactive solid wastes thereupon, awarding
attorneys’ fees (id. ¶ 103). Plaintiffs also seek recovery of monetary damages, including
future costs for long-term medical monitoring to evaluate health risks association with
exposure to radioactive waste; punitive damages; and such other and further relief (id.).
A. Motion to Dismiss (Docket No. 29)
Defendants moved to dismiss the Amended Complaint (Docket No. 29; see Docket
No. 28, Order granting leave to file oversize memorandum) 2. The parties stipulated to a
briefing schedule (Docket No. 12; see Docket No. 31, Order adopting schedule), with
responses due January 30, 2018, reply by February 6, 2018. Plaintiffs moved (Docket
No. 38) to strike Defendants’ Reply or grant leave to file a Sur-Reply (Docket No. 36).
The motion to strike was denied but leave to file a Sur-Reply was granted (Docket No. 46;
see Docket No. 47, Plaintiffs’ Sur-Reply).
III.

Discussion

A. Applicable Standards
1. Motion to Dismiss
Defendants have moved to dismiss on the grounds that the Complaint fails to state
a claim for which relief cannot be granted (Docket No. 17). Under Rule 12(b)(6) of the

2In

support of their Motion to Dismiss, Docket No. 29, Defendants submit the Declaration of Union
Carbide’s counsel, with exhibits, and Memorandum of Law, id. In response, Plaintiffs jointly submitted their
Memorandum of Law; attorney’s Declaration with exhibits, Docket No. 34. Defendants reply with the Reply
Declaration of Union Carbide’s counsel, with exhibits; the Declaration of Susan Brice, with exhibit; and
Reply Brief, Docket No. 36.
The parties then supplemented, Docket Nos. 44, 55, Defendants’ Motions for Leave to Supplement;
Docket No. 45, 56, Orders granting motions. Defendants supplemented their papers on the Environmental
Protection Agency (“EPA”) resuming investigation and remediation in 2018 and 2019, Docket No. 44, Exs.
A, B; Docket No. 55, Exs. A, B; Docket No. 47, Pls. Sur-Reply; Docket No. 48, Pls. Atty Decl.; Docket
No. 49, Defs. Reply; Docket No. 55, Defs. Supplemental papers.

3

Federal Rules of Civil Procedure, this Court cannot dismiss a Complaint unless it appears
“beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957). As the Supreme Court later held in Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant
to Rule 12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible
on its face,” id. at 570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 4546).
To survive a motion to dismiss, the factual allegations in the Complaint “must be
enough to raise a right to relief above the speculative level,” Twombly, supra, 550 U.S. at
555. As reaffirmed by the Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009),
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556 . . . . The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets
omitted).”
Iqbal, supra, 556 U.S. at 678 (citations omitted).
A Rule 12(b)(6) motion addresses to the face of the pleading. The pleading is
deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any
document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir.
1985).

4

In considering such a motion, the Court must accept as true all the well pleaded
facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,
754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general
legal conclusions necessary to prevail on the merits and are unsupported by factual
averments will not be accepted as true. New York State Teamsters Council Health and
Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).
2. Pleading Requirement, Fed. R. Civ. P. 8
Federal Rule of Civil Procedure 8 requires a pleading afford Defendants “fair notice
of what the plaintiff’s claim is and the ground upon which it rests,” Atuahene v. City of
Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary Order) (citations omitted) (Docket
No. 29, Defs. Memo. at 5). The pleading must state a short and plain statement of the
grounds for jurisdiction, that the pleader is entitled to relief, and the demand for relief
(including alternative forms), Fed. R. Civ. P. 8(a)(1)-(3). Again, under Iqbal, supra,
556 U.S. at 678, these allegations need to have sufficient facts to plausibly state a claim
on its face (id.).
3. RCRA
RCRA “‘is a comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste,’” George v. Reisdorf Bros., Inc.,
696 F. Supp. 2d 333, 342 (W.D.N.Y. 2010) (McCarthy, Mag. J.) (on consent, quoting
Incorporated Village of Garden City v. Genesco, Inc., 596 F. Supp. 2d 587, 593 (E.D.N.Y.
2009)).
To maintain a citizen suit under Section 113(h) of Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613(h), or Section

5

6972(b)(2)(B)(ii) of RCRA, Plaintiffs need to allege that Defendants were generators or
transporters of “solid or hazardous waste,” or owners or operators of a treatment, storage,
or disposal facility; that Defendants contributed to past or present handling, storage,
treatment, transportation, or disposal of solid or hazardous waste; and that the waste may
present an “imminent and substantial endangerment to health or the environment,”
42 U.S.C. § 6972(a)(1)(B) (Docket No. 29, Defs. Memo. at 26).
“Hazardous waste” is defined in RCRA as
“a solid waste, or combination of solid wastes, which because of its quantity,
concentration, or physical, chemical, or infectious characteristics may“(A) cause, or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible, illness; or
“(B) pose a substantial present or potential hazard to human health
or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed.”
Id. § 6903(5).
“Solid waste,” in turn, is defined as
“any garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material resulting
from industrial, commercial, mining, and agricultural operations, and from
community activities, but does not include solid or dissolved material in
domestic sewage, or solid or dissolved materials in irrigation return flows or
industrial discharges which are point sources subject to permits under
section 1342 of Title 33, or source, special nuclear, or byproduct material
as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).”
Id. § 6903(27) (emphasis added).

Defendants also assert that this waste must be

discarded to meet the statutory definition (Docket No. 36, Defs. Reply Memo. at 27).
Therefore, certain radioactive materials are exempt from the RCRA definitions of
“solid or hazardous waste,” id.; such waste is governed exclusively or collectively under

6

the Atomic Energy Act. The Atomic Energy Act, in turn, defines “source material” to
include uranium or thorium or any combination thereof, 10 C.F.R. § 40.4 (see Docket No.
34, Pls. Memo. at 27; Docket No. 36, Defs. Reply Memo. at 9).
EPA regulations define “hazardous waste means any material which is defined to
be hazardous waste in accordance with 40 C.F.R. § 261.3, ‘Definition of Hazardous
Waste,’” 40 C.F.R. § 266.210 (see also Docket No. 36, Defs. Reply Memo. at 11).
Section 261.3, in turn, defines types of waste and situations that are (or are not)
hazardous, 40 C.F.R. § 261.3.

One exclusion here is “hazardous waste containing

radioactive waste is no longer a hazardous waste [that] when it meets the eligibility criteria
and conditions of 40 C.F.R. part 266, Subpart N (‘eligible radioactive mixed waste’),”
40 C.F.R. § 261.3(h)(1).
Not all radioactive waste is the same. The regulations recognize two types of such
waste. Low-Level Radioactive Waste (“LLW”) in 40 C.F.R. part 266, Subpart N, is defined
as “a radioactive waste which contains source, special nuclear, or byproduct material,
and which is not classified as high-level radioactive waste, transuranic waste, spent
nuclear fuel, or byproduct material as defined in section 11e(2) of the Atomic Energy Act,”
40 C.F.R. § 266.10; see 42 U.S.C. § 2014(e)(2) (Atomic Energy Act definition of byproduct
material as “tailings or wastes produced by the extraction or concentration of uranium or
thorium form any ore processed primarily for its source material content”); 10 C.F.R.
§ 61.2 (Nuclear Regulatory Commission definition of “waste”). The Nuclear Regulatory
Commission, in turn, defines “waste” as
“those low-level radioactive wastes containing source, special nuclear, or
byproduct material that are acceptable for disposal in a land disposal facility.
For the purposes of this definition, low-level radioactive waste means
radioactive waste not classified as high-level radioactive waste, transuranic
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waste, spent nuclear fuel, or byproduct material as defined in paragraphs
(2), (3), and (4) of the definition of Byproduct material set forth in § 20.1003
of this chapter,”
10 C.F.R. § 61.2.
The second type of radioactive waste is high-level radioactive waste, consisting of
the product of uranium or thorium, included as “source, special nuclear, and byproduct
materials” under the Atomic Energy Act, 42 U.S.C. § 2014(e)(2); see 10 C.F.R. § 40.4
(definitions of “source material,” “special nuclear material,” and “byproduct material”).
This waste is the radioactive material excluded from the “solid waste” definition of RCRA,
42 U.S.C. § 6903(27).
Low-Level Mixed Waste in the EPA regulations is “a waste that contains both lowlevel radioactive waste and RCRA hazardous waste,” 40 C.F.R. § 266.210. Thus, these
regulations address mixing radioactive and non-radioactive materials.
The regulations, however, do not address expressly waste that is the mixture of
low-level radioactive waste and high-level radioactive waste, source, special nuclear, or
byproduct material as defined by the Atomic Energy Act and Nuclear Regulatory
Commission regulations. That is treated in EPA Guidelines cited by Plaintiffs (Docket
No. 34, Pls. Atty. Decl. Ex. K, EPA, “Guidance on the Definition and Identification of
Commercial Mixed Low-Level Radioactive and Hazardous Waste” (Mar. 4, 1998)
(hereinafter “EPA Guidance”)); see also EPA, Office of Solid Waste and Emergency
Response, “Guidance on the Definition and Identification of Commercial Mixed Low-Level
Radioactive and Hazardous Waste,” OSWER 9443.00(02), 1989 WL 1181499 (Oct. 4,
1989).

8

Pursuant to that Guidance, hazardous waste mixed with low-level radioactive
waste is disposed of in compliance with RCRA regulations, id. at *3. When asked in that
Guidance whether low-level radioactive wastes is exempt from RCRA because they are
source, special nuclear, or byproduct materials, the EPA responded that “except for
certain ores containing source material, which are defined as source material in 10 CFR
40.4(h), and uranium and thorium mill tailings or waste, [Nuclear Regulatory Commission]
and EPA consider that only the radionuclides themselves are exempt from RCRA,” id. at
*4 (see Docket No. 34, Ex. K, at 3). After discussing the RCRA definitions of solid waste
and hazardous waste and their exclusion of source, special nuclear, and byproduct
materials, and defining these sources of high-level radioactive material, the EPA stated
that source, special nuclear, and byproduct materials may be mixed with other radioactive
or non-radioactive materials, id.
4. Standing
To establish standing under Article III of the United States Constitution, “an injury
must be ‘concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling,’” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).
5. Statutes of Limitations
Defendants argue that the applicable statute of limitations for this statute is five
years, 42 U.S.C. § 6972(a)(1)(B), 28 U.S.C. § 2462 (general federal statute of limitations)
(Docket No. 29, Defs. Memo. at 14-15), see Glazer v. American Ecology Env’l Servs.
Corp., 894 F. Supp. 1029, 1044 (E.D. Tex. 1995) (barring claims before notice was given);
see also Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc.,

9

913 F.2d 64, 75 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d
1100 (1991). Section 2462 provides that
“except as otherwise provided by Act of Congress, an action, suit or
proceeding for the enforcement of any civil fine, penalty, or forfeiture,
pecuniary or otherwise, shall not be entertained unless commenced within
five years from the date when the claim first accrued if, within the same
period, the offender or the property is found within the United States in order
that proper service may be made thereon,”
28 U.S.C. § 2462.
One district court held that RCRA authorizes private causes of action only for
waste presenting imminent threat of harm, thus, these claims are not subject to the default
federal statute of limitations, Ergon, Inc. v. Amoco Oil Co., 966 F. Supp. 577, 581 (W.D.
Tenn. 1997). Another court concurred that there is no statute of limitations for RCRA
claims, because such claims are equitable, with citizen litigants seeking injunctive relief
only on behalf of the United States, A-C Reorganization Trust v. E.I. DuPont de Nemour
& Co., 968 F. Supp. 423, 427 (E.D. Wisc. 1997). Any financial penalties paid by a RCRA
defendant benefits the United States and not the citizen litigants, id.
For Plaintiffs’ state common law claims, the New York CPLR sets a statute of
limitations of three years, N.Y. CPLR 214(4), (5), from the date of discovery of the injury
or the date, through the exercise of reasonable diligence such injury should have been
discovered by plaintiff, CPLR 214-c(2).
6. Laches
The doctrine of laches bars a claim where “(1) the plaintiff was aware of the claim;
(2) the plaintiff inexcusably delayed in taking action; and (3) the delay prejudiced the
defendant,” Williams v. National Gallery of Art, London, No. 16CV6978, 2017 WL
4221084, at *12 (S.D.N.Y. Sept. 21, 2017) (Docket No. 29, Defs. Memo. at 15-16). As
10

noted by the Williams court, “the affirmative defense of laches is generally not
appropriately raised on a motion to dismiss, but ‘when the defense of laches is clear on
the face of the complaint, and where it is clear that the plaintiff can prove no set of facts
to avoid the insuperable bar, a court may consider the defense on a motion to dismiss,’”
id. at *12 (quoting Lennon v. Seaman, 63 F. Supp. 2d 428, 439 (S.D.N.Y. 1999)).
7. Primary Jurisdiction
As held by the Second Circuit in Ellis v. Tribune Television Co., 443 F.3d 71, 81
(2d Cir. 2006),
“The doctrine of primary jurisdiction is concerned with ‘promoting proper
relationships between the courts and administrative agencies charged with
particular regulatory duties.’ United States v. W. Pac. R.R. Co., 352 U.S.
59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The doctrine’s central aim is to
allocate initial decisionmaking responsibility between courts and agencies
and to ensure that they ‘do not work at cross-purposes.’ Fulton
Cogeneration Assocs. v. Niagara Mohawk Power Corp., 84 F.3d 91, 97 (2d
Cir.1996). ‘Whether there should be judicial forbearance hinges therefore
on the authority Congress delegated to the agency in the legislative
scheme.’ Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51,
59 (2d Cir.1994) (citing Ricci v. Chicago Mercantile Exch., 409 U.S. 289,
304, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973)); see also Gen. Elec. Co. v. MV
Nedlloyd, 817 F.2d 1022, 1026 (2d Cir.1987).”
While there is no fixed formula for applying primary jurisdiction, W. Pac. R.R.,
supra, 352 U.S. at 64, courts have considered four factors in applying the doctrine.
“(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, supra, 443 F.3d at 82-83; see also National Commc’ns Ass’n v. AT&T Co., 46 F.3d
220, 222 (2d Cir.1995).

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8. Supplemental Jurisdiction, 28 U.S.C. § 1367
Subject matter jurisdiction over the state law claims (such as the Second through
Sixth Causes of Action) may be raised by the parties or by this Court sua sponte,
Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000);
LaChapelle v. Torres, 37 F. Supp. 3d 672, 680 (S.D.N.Y. 2014). This Court must examine
its jurisdiction at any point in the proceeding, Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (the district court has “to consider
throughout the litigation whether to exercise its jurisdiction over the case”); see 14C
Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Joan E. Steinman, and Mary Kay
Kane, Federal Practice and Procedure § 3722, at 115 (Jurisd. rev. 4th ed. 2018). This
Court, in its discretion under 28 U.S.C. § 1367(c), may decline to hear supplemental state
law claims, 14C Federal Practice and Procedure, supra, § 3722, at 122.
Original federal jurisdiction here arises from Plaintiffs’ RCRA First Cause of Action
(Docket No. 26, Am. Compl. ¶¶ 71-73).

Plaintiffs’ state law negligence, nuisance,

trespass, and ultrahazardous or abnormally dangerous activities claims share the same
nucleus of operative facts as their federal RCRA claims. Under 28 U.S.C. § 1367, this
Court may exercise supplemental jurisdiction over Plaintiff’s state law claims, see Klein
v. London Star Ltd., 26 F. Supp. 2d 689, 692 (S.D.N.Y. 1998).
B. Parties’ Contentions
1. Defendants (Docket No. 29)
Defendants first contend that the Amended Complaint contains “improper
conclusory and collective pleading” which fail to allege the specific actions of each
Defendant (Docket No. 29, Defs. Memo. at 2, 5-10). There are no factual assertions in

12

the Amended Complaint that “plausibly connects any Defendant and any of the offending
materials allegedly present on Plaintiffs’ properties” (id. at 2, 5-8). The Oak Ridge Report
surveyed the contaminated soil and concluded that it came from a single source (id. at 6
n.1; id., Defs. Atty. Decl., Ex. A, Oak Ridge Report at 5; see Docket No. 26, Am. Comp.
¶ 38 (citing Oak Ridge Report)). The Oak Ridge Report, however, does not identify the
source. That report found concentrations of radium and uranium that indicated they came
from a single source (Docket No. 29, Defs. Atty. Decl., Ex. A, Oak Ridge Report at 5).
Plaintiffs allege that Union Carbide deposited uranium, thorium (among other elements)
in its slag (Docket No. 26, Am. Compl. ¶ 50), while the other Defendants are alleged to
deposit other rare elements but not uranium or thorium (id. ¶¶ 52, 54).
Defendants conclude that the Amended Complaint failed to meet the Rule 8
pleading requirements (Docket No. 29, Defs. Memo. at 6).
Defendants fault Plaintiffs for making their key allegations upon information and
belief, thus arguing these are insufficient to state a claim (id. at 6-8). They conclude these
pleadings violate Iqbal (id. at 2, 6).
Defendants next argue that Plaintiffs fail to plead any injury, failing to allege facts
to support the purported damages claims (id. at 8). Plaintiffs failed to link Defendants’
conduct to Plaintiffs’ injuries (id. at 9). The Amended Complaint also fails to allege
concrete, particularized, and actual or imminent injury that is factually traceable to any
Defendant for Article III standing (id. at 2, 10-11). Plaintiffs also failed to allege successor
liability for alleged activities in 1940s to 1970s (id. at 9-10).
With public knowledge of radiation in the 1970s and 1980s, Defendants argue that
Plaintiffs’ claims are time barred, either three years for the New York state law claims or

13

five years for RCRA claim (id. at 2, 11). Defendants deny that continuing tort doctrine
sustains this action (id. at 13-14).
Alternatively, Defendants argue that Plaintiffs’ claims are barred by their laches
from Plaintiffs’ inexcusable delay in pursuing their claims from the disposal of radioactive
materials (id. at 15-16).
Defendants assert that this Court lacks subject matter jurisdiction under CERCLA
§ 113(h), 42 U.S.C. § 9613(h) (id. at 3, 17). Plaintiffs allege that the EPA was investigating
or remediating areas in or around Plaintiffs’ properties, depriving this Court of subject
matter jurisdiction from the pre-enforcement review bar of Section 113(h) of CERCLA (id.
at 3, 17-20). With the highly technical and scientific issues surrounding liability and the
ongoing involvement of the EPA, Defendants conclude that the primary jurisdiction
doctrine should apply to have this matter considered by the EPA and not this Court (id. at
3, 23-26).
Next, Defendants argue the Amended Complaint fails to allege the elements of a
RCRA citizen suit, that the materials deposited on their properties are subject to RCRA,
that Defendants disposed of those materials, or that these materials posed more than
“remote, speculative, or de minimis endangerment” (id. at 3, 26). Radioactive materials
are not “solid waste” under RCRA (id. at 27-30). See Pennsylvania v. Lockheed Martin
Corp., 684 F. Supp. 2d 564, 578-79 (M.D. Pa. 2010) (allegations of release of strontium90 was sufficient to meet CERCLA’s statutory definition of a “nuclear incident” for an
exemption from CERCLA liability); New Mexico v. Watkins, 969 F.2d 1122, 1131 (D.C.
Cir. 1992) (per curiam) (statutory and regulatory definitions excludes from definition of
“solid waste” “source, special nuclear, or byproduct material as defined by the Atomic

14

Energy Act,” but definitions are unclear about mixed radioactive and other waste).
Plaintiffs also failed to allege that the radioactive materials were “discarded” to be
actionable under RCRA, cf. 42 U.S.C. § 6903(27) (solid waste definition including “other
discarded materials”) (id. at 30). The radioactive material Plaintiffs allege is bedding
under asphalt surfaces and gravel (Docket No. 26, Am. Compl. ¶ 3; Docket No. 29, Defs.
Memo. at 30) and thus not “discarded” as waste (Docket No. 29, Defs. Memo. at 30).
Defendants next argue that, assuming solid waste was alleged, Plaintiffs had not
adequately alleged that Defendants “contributed” to the disposal of solid waste (id. at 3033). Plaintiffs also allegedly failed to state that the radioactive material presented an
imminent and substantial endangerment (id. at 33-37).

RCRA has available only

injunctive relief and attorneys’ fees and court costs and not for compensatory or punitive
damages, 42 U.S.C. § 6972(a)(2), (e); see Meghrig v. KFC Western, Inc., 516 U.S. 479,
484, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (compensation not a remedy under RCRA)
(id. at 37).
The Amended Complaint also fails to allege the state causes of action or support
recovery of damages thereunder (id. at 3, 38-46). Plaintiffs fail to allege any present
physical injury and, while seeking future medical monitoring, they fail to identify any
diseases that require monitoring (id. at 3, 46-47). Plaintiffs also fail to plead facts that
support imposition of punitive damages under New York law, failing to allege intentional
and deliberate conduct (id. at 3, 47-48).
2. Plaintiffs’ Response (Docket No. 34)
First, Plaintiffs assert that Defendants seek to test the Amended Complaint on a
more stringent standard than plausibility (Docket No. 34, Pls. Memo. at 1). Plaintiffs claim

15

they allege sufficient claims under Rule 8 (id. at 1-2). They distinguish the role of each
Defendant in disposal of radioactive slag (id. at 2-4). They could allege upon information
and belief and that heightened pleading need only occur for fraud allegations, those not
made here (id. at 4-6). Plaintiffs next claim they alleged their injuries (id. at 6). They did
not need to prove causation in their pleadings (id. at 7). They also claim they sufficiently
pled successor liability, asserting that Defendant Occidental Chemical is the corporate
successor to Oldbury Electro-Chemical Company, Bayer Cropscience the successor to
Stauffer Chemical Company, and Union Carbide the successor to Electro Metallurgical
Company (id. at 7-9; Docket No. 26, Am. Compl. ¶¶ 34, 35, 33).
Plaintiffs claim they have standing from alleging at a minimum the low causation
threshold for pleadings (Docket No. 34, Pls. Memo. at 10; see Docket No. 26, Am. Compl.
¶¶ 48-61). By alleging the presence of radioactive solid wastes that pose an imminent
and substantial threat to health and the environment, Plaintiffs conclude that they met the
injury in fact element for standing (Docket No. 34, Pls. Memo. at 11).
Next, Plaintiffs argue that their claims are timely (id. at 11-16). The common law
claims seek injunctive relief to halt a continuing nuisance and are thus timely (id., citing
Bano v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004)).

The Amended

Complaint does not allege when any Plaintiff discovered or was informed there was
radioactive slag on their property or whether a Plaintiff’s injuries were “patent” rather than
“latent” (id. at 13-14). Whether Plaintiffs’ injuries were patent or latent is fact-specific and
not suitable for decision on a Motion to Dismiss (id. at 14 n.7). They deny that RCRA has
a five-year limitations period because Plaintiffs are not seeking civil fines or penalties (id.
at 14), merely that the subject waste poses an imminent and substantial endangerment

16

(id. at 14-15). As for the defense of laches, Plaintiffs note that this defense rarely applies
in environmental claims and, as an affirmative defense, also is fact-intensive and should
not be resolved a Motion to Dismiss (id. at 15).
Plaintiffs assert that Defendants’ jurisdictional arguments are premature because
the ban to judicial intervention bars challenges to federal remediation efforts and the EPA
was not actively engaged in removal action when the suit commenced (id. at 16).
Plaintiffs deny dismissal under the primary jurisdiction doctrine because there was
no EPA investigations or remediation, Plaintiffs believe this Court is competent to
consider the scientific and technical aspects of this case, and there is no chance of
inconsistency between this Court and the EPA regarding their properties (id. at 22-25).
Plaintiffs next argue that they alleged all the elements for a RCRA claim, that
radioactive waste is “solid waste” as defined in RCRA (id. at 25-26) and not radioactive
“source material” under the Atomic Energy Act (id. at 27-29). They also contend that the
radioactive waste here also is not “byproduct material” under the Atomic Energy Act (id.
at 30-31).
Plaintiffs then declare that they are not seeking compensatory damages (Docket
No. 34, Pls. Atty. Decl. ¶ 22; Docket No. 34, Pls. Memo. at 40), despite the Amended
Complaint seeking compensatory and punitive damages and payment of costs for future
health monitoring (Docket No. 26, Am. Compl. ¶ 103 c., e., d.).
3. Defendants’ Reply (Docket No. 36)
Defendants reply that Plaintiffs’ failure to give each Defendant notice of what harm
it allegedly caused each Plaintiff is fatal to the Amended Complaint (Docket No. 36, Defs.
Reply Memo. at 1-7). They reiterate that Plaintiffs’ claims are time barred (id. at 7-8 (state

17

law claims), 8-9 (RCRA)) and fail to state a claim under RCRA (id. at 9-15). Defendants
deny that the Amended Complaint alleged a “patent injury,” which they define as an
immediately apparent injury such that “‘there is no interval between the alleged exposure
and the resulting harm’” (id. at 8, quoting Suffolk Cty. Water Auth. v. Dow Chem.
Co.,121 A.D.3d 50, 58, 991 N.Y.S.2d 613, 620 (2d Dep’t 2014)). Next, they reply that
CERCLA section 113(h), 42 U.S.C. § 6972(b)(2)(B)(ii), bars Plaintiffs’ action, deeming
their action to be a challenge to the EPA’s removal authority (id. at 16-19). They conclude
that this case also should be dismissed pursuant to the primary jurisdiction doctrine and
this Court should exercise its discretion in declining to hear this case (id. at 20, citing
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 718, 116 S.Ct. 1712, 135 L.Ed.2d 1
(1996)).
4. Plaintiffs’ Sur-Reply (Docket No. 38)
In their denied Motion to Strike Defendants’ Reply papers (Docket No. 36; see
Docket No. 46), Plaintiffs attached their Sur-Reply that Defendants inappropriately rely
upon a February 22, 2018, email from the EPA (Docket No. 47, Pls. Sur-Reply; see
Docket No. 48, Pls. Atty. Decl.; Docket No. 38, Ex. A, proposed Sur-Reply; Docket No.
36, Brice Decl. Ex. 1; id., Defs. Reply at 18) that purports to announce the EPA’s
engagement in removal activity at some of Plaintiffs’ properties, that occurred after
Plaintiffs opposed their Motion to Dismiss (Docket No. 47, Pls. Sur-Reply Memo. at 1).
5. Defendants Supplemental Reply on EPA Remediation (Docket
Nos. 44, 55)
Defendants then sought leave to supplement their Reply (Docket Nos. 44, 55),
which this Court granted (Docket Nos. 45, 56). First, Defendants added community
update notices from the EPA for September 2018 which indicated the beginning of
18

removal activities (Docket No. 44, Defs. Atty. Decl., Ex. A; see id. Ex. B, email, Kevin
Hogan, Esq., to Margo Ludmer of the EPA, Oct. 3, 2018, announcing removal activities).
The later supplementation are emails from October 2019 confirming the EPA’s removal
activities (Docket No. 55, Defs. Atty. Decl. Exs. A, B). Despite allowing Plaintiffs to
respond to these supplements (Docket No. 56, Order), Plaintiffs did not respond.
C. Failure to State a Claim under RCRA
This Court first addresses the basis for original jurisdiction in this case, Plaintiffs’
RCRA claims alleged in the First Cause of Action.
1. Substantive Claims
Defendants argue that the RCRA does not cover radioactive waste (Docket No. 29,
Defs. Memo. at 26-30). Plaintiffs analogized their injuries to those in an EPA consent
decree in a RCRA matter in Idaho, where the EPA found radioactive phosphorus slag
waste was governed by RCRA despite being radioactive waste (Docket No. 34, Pls.
Memo. at 25-26; Docket No. 34, Pls. Atty. Decl. ¶ 17, Ex. J, In re: Elemental Phosphorus
Slag, EPA Docket No. 10-96-0045-RCRA, at 9, hereinafter “EPA Idaho Order”). Plaintiffs,
however, concede RCRA’s exception for radioactive materials regulated under the Atomic
Energy Act (Docket No. 36, Defs. Reply Memo. at 9).
The RCRA radioactive exception excludes “source, special nuclear, or byproduct
material as defined by the Atomic Energy Act” from the RCRA definition of solid waste,
42 U.S.C. § 6903(27), where the Atomic Energy Act, in turn, defines source material to
include uranium or thorium or any combination thereof, 10 C.F.R. § 40.4 (see Docket
No. 34, Pls. Memo. at 27; Docket No. 36, Defs. Reply Memo. at 9).

19

The parties here dispute whether a mixture of uranium or thorium and other
radioactive materials makes the deposited material excepted from the definition of “solid
waste” under RCRA. Plaintiffs argue that this is mixed waste and covered by RCRA
(Docket No. 34, Pls. Memo. at 27-28; id., Pls. Atty. Decl. Ex. K, EPA Guidance), see also
EPA, Office of Solid Waste and Emergency Response, “Guidance on the Definition and
Identification of Commercial Mixed Low-Level Radioactive and Hazardous Waste,”
OSWER 9443.00(02), 1989 WL 1181499 (Oct. 4, 1989). This Guidance states that lowlevel radioactive materials are regulated by both the Nuclear Regulatory Commission
(under the Atomic Energy Act) and the EPA (under RCRA), 1989 WL 1181499, at *1.
This Guidance also acknowledges that low-level radioactive waste (or “LLW”) containing
hazardous waste defined under RCRA is “Mixed LLW” and such is regulated by both
agencies. (Id.)
Defendants contend that “mixed waste” is a statutory defined term for radioactive
and non-radioactive waste (Docket No. 36, Defs. Reply Memo. at 11, citing 42 U.S.C.
§ 6903(41)), cf. New Mexico v. Watkins, supra, 969 F.2d at 1131. Defendants argue the
Amended Complaint alleges this mixture of radioactive and non-hazardous solid waste
and thus is not actionable under RCRA (id. at 12).

Even if there is dual Nuclear

Regulatory Commission-EPA jurisdiction, Defendants conclude that Plaintiffs claims arise
from the exempt radioactive portions of the slag and not the RCRA solid waste portion
(id.). Defendants, however, did not address the EPA Guidance regarding Mixed LLW.
The Amended Complaint alleges that the radioactive slag includes uranium,
thorium and/or radium (Docket No. 26, Am. Compl. ¶¶ 37, 50, 58 (Union Carbide’s
production)), phosphorus (id. ¶¶ 52, 59 (Occidental’s production)), or other rare earth

20

elements (id. ¶ 54 (Bayer/Stauffer Chemical’s production)). Plaintiffs argue that the slag
has a mixture of uranium and/or thorium (source material governed by the Atomic Energy
Act) and radium or other elemental metals which were still under RCRA’s jurisdiction
(Docket No. 34, Pls. Memo. at 27-28). These allegations do not allege non-radioactive
solid waste being involved. Plaintiffs allege that Defendants deposited radioactive slag
(Docket No. 26, Am. Compl. ¶ 3; see id. ¶ 5).
Plaintiffs thus argue the radioactive slag was an exclusive mixture of radioactive
materials. This differs from the quandary presented in New Mexico v. Watkins, supra,
969 F.2d at 1131, of whether the RCRA definition exception for radioactive materials is
applicable because radioactive waste was mixed with non-radioactive material, see
42 U.S.C. § 6903(41) (Docket No. 36, Defs. Reply Memo. at 11).
The EPA Guidance for low-level radioactive waste is informative, as “provid[ing]
guidance on when and how RCRA should apply to the management of low-level
radioactive waste,” EPA, Office of Solid Waste and Emergency Response Directive,
“CERCLA Compliance with Other Laws Manual: Part II, Clean Air Act and Other
Environmental Statutes and State Requirements,” OSWER 9234.1-02, 1989 WL 515956
(Aug. 1989). It establishes a different type of mixed waste, based upon type of radioactive
material, “source, special nuclear, or byproduct material” governed by the Nuclear
Regulatory Commission under the Atomic Energy Act and other radioactive waste that is
governed by the EPA under RCRA. Where those types of radioactive materials are
mixed, under the Guidance, both agencies regulate.
As a result, the EPA interprets the definitions in RCRA for hazardous waste and
solid waste and the radioactive materials to extend RCRA’s jurisdiction to the mixture of

21

low-level radioactive waste and high-level radioactive waste. Plaintiffs have alleged
exposure to mixed radioactive materials, some high-level, such as uranium and thorium,
the rest low-level radioactive materials. Although there is overlapping jurisdiction with
mixed radioactive materials between the Nuclear Regulatory Commission and the EPA,
this applies to storage and remediation of the material. Absent amendment of the relevant
statutes, cf. EPA Guidelines, RCRA also covers these properties.
The EPA Guidance for low-level radioactive waste has RCRA jurisdiction jointly
with Atomic Energy Act. Defendants view requires distinct deposits based upon the
radioactive substance, with RCRA jurisdiction only for the radioactive materials other than
those containing uranium or thorium. That level of precision has not been alleged for any
of Plaintiffs’ properties, save for deposits from Union Carbide (cf. Docket No. 26, Am.
Compl. ¶¶ 37, 50, 58). This Court accepts the EPA Guidance and finds that mixed lowlevel radioactive materials are allegedly involved here, and Plaintiffs thus allege a RCRA
claim for the type of waste deposited.
As such, Defendants’ Motion to Dismiss (Docket No. 29) on Plaintiffs’ stating a
claim under RCRA based upon the RCRA definitions involving radioactive waste is
denied.
Defendants also point out that the EPA investigated and has addressed
remediation. The parties Sur-Reply and responding papers argue the effect of the EPA’s
actions in 2018 and the admissibility of declaratory correspondence (compare Docket
No. 48, Pls. Atty. Decl. with Docket No. 49, Defs. Reply to Decl. of Pls’ Counsel), which
this Court granted Defendants leave to file this correspondence in support of their Motion
to Dismiss (Docket Nos. 45, 56). After filing this action, the EPA resumed its investigation

22

and, in September 2018 the EPA stated that it would resume remediation (Docket No. 29,
Defs. Memo. at 25; Docket No. 44, Defs. Motion to Supplement, Def. Occidental Atty.
Decl. ¶¶ 4-10, Exs. A, B; Docket No. 55, Defs. [Second] Motion to Supplement, Occidental
Atty. Decl. ¶¶ 9-11, Exs. A, B; see also Docket No. 49, Defs. Reply Memo. at 2). If
defense argument is correct about RCRA jurisdiction with mixed radioactive material, the
EPA would have declined remediation, deferring to the Nuclear Regulatory Commission
or other agencies to conduct further investigation or remediation. As such, the EPA’s
action confirms that RCRA has concurrent jurisdiction over mixed radioactive waste
present here.
2. Endangerment and Disposal of Waste
a. Discarding or Recycling
Defendants next argue that the Amended Complaint fails to allege the radioactive
waste was discarded or that the materials deposited posed imminent and substantial
endangerment to health or the environment (Docket No. 29, Defs. Memo. at 30, 3, 26).
Defendants contend that use of radioactive material as fill material was not “discarding it”
but was reusing it (id. at 30), see No Spray Coal, Inc. v. City of N.Y., 252 F.3d 148, 150
(2d Cir. 2001) (per curiam) (holding pesticide sprayed into the air is serving its intended
purpose and is not discarded under RCRA). Plaintiffs respond relying upon the EPA’s
consent order in Idaho where the defendants similarly used radioactive material as
construction fill (Docket No. 34, Pls. Memo. at 32). Defendants reply that that consent
decree made no finding that the waste there was discarded (Docket No. 36, Defs. Reply
Memo. at 13).

23

Plaintiffs then cited Owen Electric Steel Co. of South Carolina v. Browner, 37 F.3d
146, 150 (4th Cir. 1994), that the slag there that was recycled for construction use, but not
in the same industry as the generator, the Fourth Circuit held that the slag was discarded
RCRA solid waste (Docket No. 34, Pls. Memo. at 32), see Chart v. Town of Parma,
No. 10CV6179, 2014 WL 4923166, at *34 (W.D.N.Y. Sept. 30, 2014) (Payson, Mag. J.).
Magistrate Judge Marian Payson in Chart found a substance used in the same
industry or a separate industry was “relevant, although not determinative, to the question
of whether the material constitutes a solid waste under RCRA,” 2014 WL 4923166, at
*34.
Defendants dispute the circuit decisions underlying Owen Electric, contending that
the D.C. Circuit later held that recycling in another industry did not make that item
‘discarded (Docket No. 36, Defs. Reply Memo. at 13, citing Safe Food & Fertilizer v.
E.P.A., 350 F.3d 1263, 1268 (D.C. Cir. 2003), clarifying American Mining Cong. v. E.P.A.,
824 F.2d 1177, 1186 (D.C. Cir. 1987) (“AMC I”), cited in Owen Elec., supra, 37 F.3d at
150.
In Safe Food & Fertilizer, the D.C. Circuit construed its precedent on the question
whether recycling a material is also discarding it under RCRA where that Circuit’s cases
depended upon whether the recycling was within or outside of the generating industry,
350 F.3d at 1268. Recycling within an industry was not deemed discarding solid waste,
id., citing American Mining Cong., supra, 824 F.2d at 1186, while recycling for use in
another industry may be deemed discarding, Safe Food & Fertilizer, supra, 350 F.3d at
1268, citing American Petroleum Inst. v. E.P.A. 906 F.2d 729, 740-41 (D.C. Cir. 1990);

24

American Mining Cong. v. E.P.A. (“AMC II”), 907 F.2d 1179, 1186-87 (D.C. Cir. 1990).
The Safe Food & Fertilizer court then stated
“But we have never said that RCRA compels the conclusion that material
destined for recycling in another industry is necessarily ‘discarded.’
Although ordinary language seems inconsistent with treating immediate
reuse within an industry's ongoing industrial process as a ‘discard,’ see
AMC I, 824 F.2d at 1185, the converse is not true. As firms have ample
reasons to avoid complete vertical integration, see generally Ronald Coase,
“The Nature of the Firm,” 4 Economica 386 (1937), firm-to-firm transfers are
hardly good indicia of a ‘discard’ as the term is ordinarily understood,”
350 F.3d at 1268. The court then accepted the EPA’s construction of RCRA § 6903(27)
that the list of types of solid waste becomes so only when it is “discarded,” Safe Food &
Fertilizer, supra, 350 F.3d at 1268-69.
Thus, RCRA solid waste needs to be discarded for that statute to apply and the
recycling of material (even outside of the material generator’s industry) is not discarding
that material. This case provides a classic example of recycling outside of the industries
of Defendants, manufacturers of chemicals and radioactive substances. Plaintiffs allege
that Defendants took their radioactive slag and recycled it by installing it as bedding for
asphalt on their properties. Such reuse is not part “of the waste disposal problem,” Am.
Petroleum Inst., supra, 906 F.2d at 740-41; AMC II, supra, 907 F.2d at 1106-87, that
RCRA addresses.
Defendants’ disposal of slag material recycled as asphalt base is not discarding of
solid waste under RCRA. Therefore, Defendants’ Motion to Dismiss (Docket No. 29) on
this categorical basis is granted. To fully develop the record, this Court next considers
other parts of the definitions of solid waste and hazardous waste, that the slag presents
imminent and substantial endangerment to human health and the environment.

25

b. Imminent Harm
As for the imminent nature of the waste on Plaintiffs’ properties, this issue joins
with the timeliness of Plaintiffs’ claims (be it statute of limitations or laches).

The

Amended Complaint alleges that the environmental conditions at some of Plaintiffs’
properties was found to have gamma radiation presented or may present “an imminent
and substantial endangerment to human health or the environment” (Docket No. 26, Am.
Compl. ¶ 43; see id. ¶ 76). Plaintiffs also rely upon the EPA’s conclusion that radioactive
waste at the Niagara Falls Boulevard properties may present imminent and substantial
endangerment to public health, welfare, or the environment (id. ¶ 44) to contend that their
other properties’ waste also posed the same imminent and substantial endangerment (id.
¶ 45).
The Amended Complaint alleges “elevated levels of radiation” on Plaintiffs’
properties (Docket No. 26, Am. Compl. ¶¶ 38, 42-46). Plaintiffs generally claim exposure
to this radioactive material exposed them (and their visitors or occupants) to doses of
radiation that increased the risk for adverse health effects that minimally warrant
monitoring. Plaintiffs, however, have not alleged specifics for the impact of these elevated
levels, such as medical injury claims, depreciation in property values once radioactive
materials were disclosed.

Plaintiffs fail to state that this exposure is substantial

endangerment, especially given the variety of elements disposed of on their grounds.
3. Relief Alleged
Plaintiffs deny seeking compensatory damages (Docket No. 34, Pls. Atty. Decl.
¶ 22) or apparently other damages (Docket No. 34, Pls. Memo. at 40). In Meghrig, supra,
516 U.S. at 484, the Supreme Court held that 42 U.S.C. § 6972(a)(1)(B) does not

26

authorize a private right of action to recover costs for clean up toxic waste that “does not,
at the time of suit, continue to pose an endangerment to health or the environment,”
Ergon, supra, 966 F. Supp. at 581.

Thus, Plaintiffs cannot recover past or future

expenses from Defendants, either compensatory or punitive. Plaintiffs as citizen suit
litigants are private Attorneys General, advocating for the interest of the United States.
Plaintiffs accept this (Docket No. 34, Pls. Atty. Decl. ¶ 22). Therefore, Plaintiffs only state
claims for injunctive relief and recovery of their attorneys’ fees.
4. Results
RCRA governs the disposal of mixed low-level and high-level radioactive waste
(jointly with the Atomic Energy Act) as Plaintiffs allege were the slag deposited in this
case. The recycling of radioactive slag on Plaintiffs’ properties, however, is not “discard”
of solid waste in violation of RCRA. Even if Plaintiffs alleged imminent and substantial
endangerment from that disposal or seek only injunctive relief, Plaintiffs’ claims fail
because Defendants did not discard solid waste under 42 U.S.C. § 6903(27). Thus,
Defendants’ Motion to Dismiss the First Cause of Action (Docket No. 29) is granted.
D. Sufficiency of Pleadings
Plaintiffs allege that each Defendant (or its corporate predecessor) created and
deposited radioactive waste (Docket No. 26, Am. Compl. ¶¶ 50-55). Union Carbide
allegedly deposited radioactive waste (uranium, thorium, and other elements) in Niagara
Falls Boulevard Properties and in the Holy Trinity Cemetery in Lewiston, near the Robert
Street Properties, the Upper Mountain Road Properties, and Palmeri Property (id. ¶¶ 51,
27-32 (“Niagara Falls Boulevard Properties” and their owners), 10-13 (“Upper Mountain
Road Driveway Properties” and their owners), 14 (Palmeri Property, on Upper Mountain

27

Road), 17-20 (“Robert Street Properties,” and their owners)). They next allege that
Occidental generated radioactive slag (from elemental phosphorus) that was deposition
“in the Niagara Falls area, including several of the Plaintiff Properties” with phosphate
slag wastes (id. ¶¶ 52, 53). Bayer’s predecessor, Stauffer, allegedly generated and
disposed of radioactive wastes (niobium, tantalum, zirconium, and other rare earth
metals) at its Lewiston plant, affecting the Robert Street Properties, Upper Mountain Road
Driveway Properties, and the Palmeri Property (id. ¶¶ 54, 55, 17-20, 10-13, 14). Plaintiffs
specify each Defendant’s (or its predecessor’s) role in depositing radioactive slag at
certain properties owned by Plaintiffs (id. ¶¶ 51, 27-32, 10-13, 14, 17-20, 52, 53, 54, 55).
Plaintiffs were more specific as to which Defendant deposited in Lewiston or on
the Niagara Falls Boulevard Properties than other sites in Niagara Falls or on Grand
Island, analogizing the harm and imminent danger faced at other properties. Given the
holding above that Plaintiffs failed to assert a RCRA First Cause of Action, this Court need
not determine whether Plaintiffs otherwise sufficiently alleged their RCRA claim against
each Defendant.
E. Statute of Limitations
As for the limitations period under RCRA, the act itself does not contain a statute
of limitations, Meghrig, supra, 516 U.S. at 486 (contrasting with CERCLA and its statute
of limitations, 42 U.S.C. § 9613(g)(2)), or expressly refer to the otherwise default federal
limitations period of 28 U.S.C. § 2462. Section 2462 provides the limitations period for
civil penalties, not sought by Plaintiffs here (see Docket No. 34, Pls. Memo. at 14).
Federal courts differ whether the five-year, e.g., Bodne v. Geo. A. Rheman Co.,
Inc., 811 F. Supp. 218, 221 (D. S.C. 1993) (citing Sierra Club v Chevron U.S.A., Inc.,

28

834 F.2d 1517, 1521 (9th Cir. 1987) (citing cases, for Clean Water Act statute of
limitations) or six-year, see Catullus Dev. Corp. v. L.D. McFarland Co., 910 F. Supp. 1509,
1514-15 (D. Or. 1995) (period for remediation action in CERCLA action), limitation period
applies to RCRA citizen suits or if no limitations period applies at all. Some courts,
recognizing either the injunctive nature of available relief to citizen litigants or that any
financial penalty is payable to the United States, held no statute of limitations applies,
compare Glazer, supra, 894 F. Supp. at 1044 with A-C Reorganization, supra, 968 F.
Supp. at 427 (no recovery for past cleanups and citizen suit requires allegation of
imminent harm to obviate need for limitations period); Ergon, supra, 966 F. Supp. at 581.
The court in Ergon read the “imminent harm” in the statute for a citizen suit to require an
immediate threat, hence deeming a statute of limitations period to be unnecessary, Ergon,
supra, 996 F. Supp. at 518 (citing Meghrig, supra, 516 U.S. 479, 485-86).
The Meghrig Court focused on the harm RCRA citizen suits were to address, that
is imminent and substantial endangerment to health or environment. The Court defined
“imminent” as “threaten[s] to occur immediately,” id. at 485, quoting Webster’s New
International Dictionary of English Language 1245 (2d ed. 1934). Given the immediacy
required for a RCRA citizen suit, this Court holds that there is no applicable statute of
limitations (including the default 28 U.S.C. § 2462) for citizen suits. If litigants fail to
commence an action immediately to address imminent harm to health or the environment,
those claims fail to state a claim.
As for the injunctive relief, Plaintiffs’ claims need to arise from imminent harm,
obviating the need for a limitations period. Plaintiffs allege imminence only from the EPA
and other agencies declarations that the harm at Niagara Falls Boulevard properties may

29

be imminent, with Plaintiffs extrapolating that conclusion to their other properties (cf.
Docket No. 26, Am. Compl. ¶¶ 44-45, 76). If Plaintiffs allege (as they do in this case)
decades-old harm only legally addressed in 2017 (by Plaintiffs serving notices upon the
EPA that year, id. ¶¶ 77, 78), these claims fail to state a RCRA claim for imminent harm
and are dismissed on that basis. Plaintiffs do not allege when the EPA found the Niagara
Falls Boulevard properties were in imminent danger (to use this event as a date of
discovery) for comparison when Plaintiffs commenced this action.

RCRA furnishes

equitable relief; citizen litigants need to diligently pursue these claims rather than let their
toxic properties fester.
Under Meghrig, Plaintiffs do not have a right to recover compensatory or punitive
damages or recover from future costs of long-term medical monitoring, 516 U.S. at 484.
Relief under RCRA is equitable, restraining defendants or ordering remediation or “such
other action as may be necessary, or both,” 42 U.S.C. § 6972(a)(1)(B); Meghrig, supra,
516 U.S. at 484. Plaintiffs now deny seeking compensatory damages (Docket No. 34,
Pls. Atty. Decl. ¶ 22) or apparently other damages (Docket No. 34, Pls. Memo. at 40).
Therefore, RCRA has no statute of limitations applicable here.
Even if the five-year limitations period of § 2462 were applicable, Plaintiffs fail to
allege an event (or series of events) that accrued their claims. They allege detection of
radiation in the 1970s and 1980s (Docket No. 26, Am. Compl. ¶ 38), well beyond five
years before filing this action in 2017.
F. Other Defense Grounds
Defendants raise other grounds for dismissal of this action (constitutional standing,
subject matter jurisdiction, laches, sufficiency of Amended Complaint, primary

30

jurisdiction). Given the decisions above as to the Amended Complaint stating a claim
and statute of limitations, this Court need not address Defendants’ other contentions.
If this Court considers these defenses, laches is not appropriately raised in a
Motion to Dismiss. The delay inherent in laches has to arise from a known event (here,
the discovery of the radioactive disposal) to establish each Plaintiffs’ awareness of their
claims and measure of the delay in acting to conclude whether it was inexcusably long,
cf. Williams, supra, 2017 WL 4221084, at *12 (Docket No. 36, Defs. Reply Memo. at 89).
As for primary jurisdiction, Plaintiffs filed this action prior to EPA activity on their
properties. During pendency of this action, the EPA declared it would begin investigation
and remediation. While two primary jurisdiction factors here favor deferring to the EPA
due to its agency expertise and discretion, there is no prior application to the agency or
risk of inconsistent rulings and, since the EPA resumed its activities after filing this case,
there is no substantial danger of inconsistent rulings from this case. If this Court were to
retain jurisdiction, there would be no need to abstain to avoid exercising primary
jurisdiction.
G. Supplemental Jurisdiction over State Claims
With dismissal of Plaintiffs’ RCRA claims, this Court need not exercise
supplemental jurisdiction of the remaining state common law claims. All claims arise from
the same operative facts of the disposal of slag alleged in the RCRA.
IV.

Conclusion

RCRA does not apply to the recycled radioactive material dispensed on Plaintiffs’
properties. This is not because that material contained some high-level radioactive waste

31

(governed by the Atomic Energy Act) but because reuse of that material was not
“discarding” solid waste under RCRA.
Therefore Plaintiffs’ First Cause of Action fails to state a claim. This Court then
declines to exercise supplemental jurisdiction over Plaintiffs’ remaining common law
Cause of Actions. Defendants’ Motion to Dismiss (Docket No. 29) is granted.
V.

Orders

IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 29) is
GRANTED.
FURTHER, the Clerk of Court is DIRECTED to close this case.
SO ORDERED.

Dated:

April 26, 2021
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

32