Opinion
17-CV-7476 (MKB)
08-13-2020
The BROOKLYN UNION GAS COMPANY d/b/a National Grid NY, Plaintiff, v. EXXON MOBIL CORPORATION, Defendant.
James M. Showalter, Bradley Scott Rochlen, Pro Hac Vice, Robert Middleton, Pro Hac Vice, Russell Bertram Selman, Pro Hac Vice, Schiff Hardin LLP, Chicago, IL, Edward Karl Roggenkamp, Nossaman LLP, Washington, DC, for Plaintiff. John B. McCusker, McCusker, Anselmi, Rosen, Carvelli, New York, NY, Rosemarie DaSilva, McCusker Anselmi Rosen & Carvelli, Florham Park, NJ, David Edelstein, Pro Hac Vice, Archer & Greiner, P.C., Haddonfield, NJ, for Defendant.
James M. Showalter, Bradley Scott Rochlen, Pro Hac Vice, Robert Middleton, Pro Hac Vice, Russell Bertram Selman, Pro Hac Vice, Schiff Hardin LLP, Chicago, IL, Edward Karl Roggenkamp, Nossaman LLP, Washington, DC, for Plaintiff.
John B. McCusker, McCusker, Anselmi, Rosen, Carvelli, New York, NY, Rosemarie DaSilva, McCusker Anselmi Rosen & Carvelli, Florham Park, NJ, David Edelstein, Pro Hac Vice, Archer & Greiner, P.C., Haddonfield, NJ, for Defendant.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge: Plaintiff The Brooklyn Union Gas Company, doing business as National Grid NY, commenced the above-caption action on December 22, 2017, against Defendant ExxonMobil Corporation asserting that Defendant's historic disposal of hazardous waste presents an "imminent and substantial endangerment" under section 6972 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(A) and (B) ("RCRA"), and seeking declaratory and injunctive relief and civil penalties. (Compl. 1, Docket Entry No. 1.) On May 28, 2019, Defendant filed an Answer to the Complaint asserting one counterclaim pursuant to RCRA section 6972(a)(1)(B) and twenty-three affirmative defenses. (Answer, Docket Entry No. 40.)
Plaintiff now moves to dismiss Defendant's RCRA counterclaim for lack of subject matter jurisdiction and to strike nine of the affirmative defenses pursuant to Rules 12(b)(1) and 12(f) of the Federal Rules of Civil Procedure, respectively. (Pl. Mot. to Dismiss & to Strike ("Pl. Mot."), Docket Entry No. 55; Pl. Mem. in Supp. of Pl. Mot. ("Pl. Mem."), Docket Entry No. 55-1.) Defendant opposes the motion. (Def. Mem. in Opp'n to Def. Mot. ("Def. Opp'n"), Docket Entry No. 56.) For the reasons discussed below, the Court (1) grants the motion to dismiss Defendant's RCRA counterclaim for lack of subject matter jurisdiction; (2) grants the motion to strike as to the seventh, ninth, sixteenth, eighteenth, and nineteenth affirmative defenses; and (3) denies the motion to strike as to the fourth, fifth, sixth, tenth, and twentieth affirmative defenses.
I. Background
a. Factual background
Plaintiff seeks declaratory and injunctive relief "arising out of the disposal into the environment and storage of solid and hazardous wastes" by Defendant and/or its predecessors Charles Pratt & Co., Astral Oil Company, and Standard Oil at the Pratt Works Refinery in Brooklyn, New York (the "Refinery Site"). (Compl. ¶¶ 1, 4–6.) The Refinery Site
The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.
comprised Block 2294 (between N. 10th Street and N. 11th Street, west of Kent Avenue and separated from Block 2287 by N. 11th Street), Block 2277 (between N. 12th Street and Bushwick Inlet, east of the East River and west of Kent Avenue), known as N. 12th Street Refinery or N. 13th Street Plant; portions of Block 2282 (east of Kent Avenue, between N. 12th Street and N. 13th Street separated from Block 2277 by Kent Avenue and separated from Block 2288 by N. 12th Street); and the site of the former Eagle Oil Works on portions of Block 2279 (west of Berry Street, between N. 13th Street and N. 14th Street).
(Id. ¶ 6.)
The Refinery Site began operating in the 1860s and Defendant continued its operation for several decades, causing or contributing to the handling, treatment, and disposal into the environment of solid and hazardous substances that remain on, and adjacent to, Defendant's former property. (Id. ¶¶ 7–10, 27–45.) Plaintiff's Williamsburg Works Manufactured Gas Plant (the "MGP Site") was adjacent to and bordered on two sides by the Refinery Site. (Id. ¶ 11.)
Plaintiff alleges that hazardous substances at the Refinery Site "are consistent with those associated with kerosene refineries" and "petroleum bulk storage terminals." (Id. ¶¶ 20, 26.) Compounds from hazardous substances such as volatile organic compounds ("VOCs") and semi-volatile organic compounds ("SVOCS") were located on or near the Refinery Site. (Id. ¶ 9.) In the early 1930s, Standard Oil, a predecessor of Exxon, installed six-inch steam piping running across the [MGP Site]. (Id. ¶ 35.) According to Plaintiff, "upon information and belief ... non-marketable petroleum wastes associated with the ... Refinery and other hazardous substances ... remain upon, and in the vicinity of, the Refinery ... in a manner that may present an imminent and substantial endangerment to health or the environment." (Id. ¶ 45.) Solid waste and hazardous substances from the Refinery Site have migrated and continue to migrate onto the [MGP Site] and have prevented Plaintiff from "fully and meaningfully remediating the former MGP site until Exxon investigates, characterizes, and remediates the Refinery Site." (Id. ¶¶ 49–50.)
Plaintiff alleges that the New York State Department of Environmental Conservation (the "NYSDEC") "has requested that [Defendant] investigate and remediate the Refinery Site," but Defendant has refused to do so. (Id. ¶ 51; see also NYSDEC Letter dated Nov. 27, 2017 ("2017 NYSDEC Letter"), annexed to Compl. as Ex. A, Docket Entry No. 1-3.) Plaintiff further alleges that "[u]nless and until [Defendant] investigates and remediates the Refinery Site, Plaintiff will be forced to investigate and remediate contamination that has migrated from the Refinery ... to the [MGP Site]" or pay NYSDEC investigative and remedial costs at the MGP Site. (Compl. ¶ 53.) Plaintiff also alleges that "[c]hemicals of concern" remain "onsite" and "may present an imminent and substantial endangerment to health or the environment." (Id. ¶ 54.)
On or about September 21, 2017, Plaintiff served a notice of endangerment under RCRA section 7002(b)(2)(a) dated September 21, 2017 on "U.S. Environmental Protection Agency (‘EPA’) Administrator Scott Pruitt, EPA Region 2 Acting Administrator Catherine McCabe, Attorney General Jefferson Sessions, [NYSDEC] Commissioner Basil Seggos, New York State Assistant Attorney General Joseph Kowalczyk, and Defendant." (Id. ¶ 66.)
On November 27, 2017, the NYSDEC sent a letter to Plaintiff in regard to Plaintiff's notice of intent to file a citizen's suit. (2017 NYSDEC Letter.) The 2017 NYSDEC Letter identified Plaintiff as a responsible party liable for contamination at Block 2277, Block 2287, or Block 2294. (Id. ) The letter further states that the NYSDEC will "conduct an investigation on Block 2277 using Oil Spill Fund money" and "will be providing notice to the identified [potentially responsible parties], including [Plaintiff], requesting that they agree to conduct an investigation of Block 2287, and if they fail to do so, the [NYSDEC] will conduct the investigation using State Superfund money." (Id. ) The letter also states that the NYSDEC conducted "some investigatory work" at Block 2294 and that "a structure impede[ed] further investigation" but that the NYSDEC had sufficient information from previous investigatory work and therefore did not intend to perform any additional investigations. (Id. ) b. Procedural background
On December 22, 2017, Plaintiff filed the Complaint, alleging that Defendant's historic disposal of hazardous waste presents an "imminent and substantial endangerment" under RCRA section 6972 and seeking declaratory and injunctive relief and civil penalties. (See Compl.)
On March 13, 2018, Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim or, in the alternative, for the Court to abstain from exercising jurisdiction over this action pursuant to the Primary Jurisdiction Doctrine. (Def. Mot. to Dismiss, Docket Entry No 21; Def. Mem. in Supp. of Def. Mot. to Dismiss, Docket Entry No. 21-1.) In its opposition to Defendant's motion, Plaintiff withdrew its request for civil penalties. (Pl. Opp'n to Def. Mot. to Dismiss ("Pl. Opp'n to Mot. to Dismiss") 4 n.3, Docket Entry No. 23.)
On March 26, 2019, the Court heard oral argument on Defendant's motion and denied the motion in its entirety. (Min. Entry dated Mar. 26, 2019.)
On May 28, 2019, Defendant filed an Answer to the Complaint asserting one counterclaim pursuant to RCRA section 6972(a)(1)(B) and twenty-three affirmative defenses. (See generally Answer.) In support of its RCRA counterclaim, Defendant alleges that contaminants at the MGP Site migrated to the Block 2277 of the Refinery Site and that "[t]o the extent this Court finds that contamination exists and is unremediated and might pose an imminent and substantial endangerment," that endangerment "is a result of [Plaintiff's] ownership" such that Plaintiff is required to investigate and remediate the MGP Site and other impacted properties." (Id. at 14 ¶¶ 14, 26–27.)
Plaintiff moves to dismiss Defendant's RCRA counterclaim and to strike ten of the twenty-three affirmative defenses asserted in the Answer. (Pl. Mem.; Pl. Mot.) Defendant opposes the motion. (Def. Opp'n.)
II. Discussion
a. Standards of review
i. 12(b)(1)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ); see also Chau v. S.E.C. , 665 F. App'x 67, 70 (2d Cir. 2016). "[T]he party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co., LLC , 720 F. App'x 52, 53 (2d Cir. 2018). In evaluating whether a plaintiff has met that burden, " ‘[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). As a result, courts may also "refer[ ] to evidence outside the pleadings" to evaluate whether subject matter jurisdiction exists. Pyskaty v. Wide World of Cars, LLC , 856 F.3d 216, 223 (2d Cir. 2017) (quoting Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi , 215 F.3d 247, 253 (2d Cir. 2000) ); see also M.E.S., Inc. v. Snell , 712 F.3d 666, 671 (2d Cir. 2013) (same).
ii. 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored and will not be granted "unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Coach, Inc. v. Kmart Corps. , 756 F. Supp. 2d 421, 425 (S.D.N.Y. 2010) (quoting Salcer v. Envicon Equities Corp. , 744 F.2d 935, 939 (2d Cir. 1984), vacated and remanded on other grounds , 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986) ); see also State of New York v. United Parcel Serv., Inc. , 160 F. Supp. 3d 629, 637 (S.D.N.Y. 2016) ("Motions to strike are generally disfavored." (quoting Mayfield v. Asta Funding, Inc. , 95 F. Supp. 3d 685, 696 (S.D.N.Y. 2015) )); Walters v. Performant Recovery, Inc. , 124 F. Supp. 3d 75, 78 (D. Conn. 2015) ("Motions to strike are generally disfavored, but are within the district court's sound discretion." (quoting Lamoureux v. AnazaoHealth Corp. , 250 F.R.D. 100, 102 (D. Conn. 2008) )).
A court may strike a defense as insufficient where "(1) there is no question of fact which might allow the defense to succeed; (2) there is no question of law which might allow the defense to succeed; and (3) the plaintiff would be prejudiced by the inclusion of the defense." Sibley v. Choice Hotels Int'l , 304 F.R.D. 125, 132 (E.D.N.Y. 2015) (citation omitted); see also United Parcel Serv., Inc. , 160 F. Supp. 3d at 637 ; Coach, Inc. , 756 F. Supp. 2d at 425. The first two prongs of this test "examine the legal sufficiency of the asserted defense." Walters , 124 F. Supp. 3d at 78 (citing Coach, Inc. , 756 F. Supp. 2d at 425 ). "This is ‘to be determined solely upon the face of the pleading.’ " Id. (quoting Coach, Inc. , 756 F. Supp. 2d at 425 ).
The Second Circuit has recently made clear that "the plausibility standard of Twombly applies to determining the sufficiency of all pleadings, including the pleading of an affirmative defense, but with recognition that, as the Supreme Court explained in Iqbal , applying the plausibility standard to any pleading is a ‘context-specific’ task." GEOMC Co., Ltd. v. Calmare Therapeutics Inc. , 918 F.3d 92, 96 (2d Cir. 2019) (citing Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The Second Circuit further explained that:
The key aspect of the context relevant to the standard for pleading an affirmative defense is that an affirmative defense, rather than a complaint, is at issue. This is relevant to the degree of rigor appropriate for testing the pleading of an affirmative defense. The pleader of a complaint has the entire time of the relevant statute of limitations to gather facts necessary to satisfy the plausibility standard. By contrast, the pleader of an affirmative defense has only the 21-day interval to respond to an original complaint, the 21-day interval to amend, without court permission, an answer that requires a responsive pleading, or the 14-day interval to file a required response to an amended pleading that makes a new claim. That aspect of the context matters. In addition, the relevant context will be shaped by the nature of the affirmative defense. For example, the facts needed to plead a statute-of-limitations defense will usually be readily available; the facts needed to plead an ultra vires defense, for example, may not be readily known to the defendant, a circumstance warranting a
relaxed application of the plausibility standard.
Id. at 98 (citations and footnote omitted).
In addition, the Second Circuit has endorsed the view that "even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." Salcer , 744 F.2d at 939 (quoting 5 C. Wright & A. Miller, Fed. Practice & Proc. § 1381 at 800–01).
"If a court determines that a defense is legally insufficient, the court next determines whether inclusion of the defense would prejudice the plaintiff." Coach, Inc. , 756 F. Supp. 2d at 425. "Increased time and expense of trial may constitute sufficient prejudice to warrant striking an affirmative defense." Id. (citing Estee Lauder, Inc. v. Origins Nat. Res., Inc. , 189 F.R.D. 269, 271 (S.D.N.Y. 1999) ); see also Specialty Minerals, Inc. v. Pluess-Staufer AG , 395 F. Supp. 2d 109, 111–12 (S.D.N.Y. 2005) (finding that the plaintiffs would be prejudiced by the inclusion of an unclean-hands defense that would require additional discovery and expand the length and scope of trial). Moreover, inclusion of a defense that will fail as a matter of law prejudices the plaintiff by needlessly increasing the duration and expense of the litigation. Coach, Inc. , 756 F. Supp. 2d at 426 ; Estee Lauder , 189 F.R.D. at 272 (explaining that when "the defense is insufficient as a matter of law, the defense should be stricken to eliminate the delay and unnecessary expense from litigating the invalid claim").
b. The Court lacks subject matter jurisdiction over Defendant's RCRA counterclaim
Plaintiff argues that the Court should dismiss Defendant's RCRA counterclaim because (1) "[Defendant] failed to provide the statutorily required [ninety]-day notice before filing its citizen suit," and (2) "[Defendant's] counterclaim fails for lack of standing." (Pl. Mem. 8.)
Because, as discussed below, the Court finds that Defendant does not have Article III standing to assert its RCRA counterclaim, the Court does not address the parties’ additional arguments as to whether RCRA's notice requirement applies to a RCRA counterclaim.
Defendant argues that its "RCRA counterclaim meets the standard for this Court to deem it compulsory, which grants it ancillary jurisdiction over the [c]ounterclaim" and that the affirmative defenses asserted in the Answer "track the required elements of RCRA, and [Defendant] fully anticipates that they will be developed within the already established bounds of discovery in this matter." (Def. Opp'n 2.)
RCRA "is a ‘comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.’ " Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc. , 575 F.3d 199, 204–05 (2d Cir. 2009) (quoting Meghrig v. KFC W., Inc. , 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) ). "RCRA's primary purpose ... is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’ " Meghrig , 516 U.S. at 483, 116 S.Ct. 1251 (quoting 42 U.S.C. § 6902(b) ).
RCRA contains a citizen-suit provision "which permits private citizens to enforce its provisions." Id. at 484, 116 S.Ct. 1251. Section 6972(a)(1)(B) "permits a civil action against any person ‘who has contributed or who is contributing to the past or present ... disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.’ " Simsbury-Avon , 575 F.3d at 205 (quoting 42 U.S.C. § 6972(a)(1)(B) ).
"The RCRA defines ‘disposal’ as the ‘discharge, deposit, ... or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be ... discharged into any waters.’ " Simsbury-Avon , 575 F.3d at 210 (quoting 42 U.S.C. § 6903(3) ).
The Second Circuit has defined the "imminent and substantial endangerment" standard broadly:
Significantly, congress used the word "may" to preface the standard of liability: "present an imminent and substantial endangerment to health or the environment[.]" This is expansive language, which 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.
Dague v. City of Burlington , 935 F.2d 1343, 1355 (2d Cir. 1991) (internal quotation marks and citations omitted), judgment rev'd in part on other grounds , 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) ; see also Me. People's All. v. Mallinckrodt, Inc., 471 F.3d 277, 288 (1st Cir. 2006) (noting that "at least four ... circuits have construed [ section 6972(a)(1)(B) ] expansively" and "all four courts have emphasized the preeminence of the word ‘may’ in defining the degree of risk needed to support [ section 6972(a)(1)(B) ’s] liability standard"). "No matter how broadly read, however, the text of 42 U.S.C. § 6972 requires the presence of solid or hazardous waste that may present an ‘endangerment’ that is ‘imminent’ and ‘substantial.’ " Simsbury-Avon , 575 F.3d at 210.
Imminency "requires a showing that a ‘risk of threatened harm is present.’ " Id. (quoting Dague v. City of Burlington , 935 F.2d 1343, 1356 (2d Cir. 1991) ); see also Meghrig , 516 U.S. at 485–86, 116 S.Ct. 1251 (finding that imminency requires "a threat which is present now, although the impact of the threat may not be felt until later"); Chem. Weapons Working Grp., Inc. v. U.S. Dep't of Def. , 61 F. App'x 556, 561 (10th Cir. 2003) ("A vague possibility of future harm cannot satisfy [ section 6972(a)(1)(B) ], which applies to dangers that are both imminent and substantial." (internal quotation marks omitted)); Price v. U.S. Navy , 39 F.3d 1011, 1019 (9th Cir. 1994) ("A finding of ‘imminency’ does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present.").
In order to show Article III standing, a plaintiff must establish three things: (1) an "injury in fact — an invasion of a legally protected interest which is ... concrete and particularized and actual or imminent, not conjectural or hypothetical," (2) "a causal connection between the injury and the conduct complained of," and (3) redressability of the injury "by a favorable decision." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Citizens for Resp. & Ethics in Washington v. Trump , 953 F.3d 178, 189 (2d Cir. 2019) (describing three elements of Article III standing), as amended , (Mar. 20, 2020); Cacchillo v. Insmed, Inc. , 638 F.3d 401, 404 (2d Cir. 2011) ("[I]n order to seek injunctive relief, a plaintiff must show the three familiar elements of standing: injury in fact, causation, and redressability." (citing Summers v. Earth Island Inst. , 555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) )).
Because the three elements of Article III standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. "Thus, ‘[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [a court will] presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’ " Osborn v. Visa Inc. , 797 F.3d 1057, 1063–64 (D.C. Cir. 2015) (first and third alterations in original) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted)); see also Hassan v. City of New York , 804 F.3d 277, 289 (3d Cir. 2015), as amended , (Feb. 2, 2016) ("[T]o withstand a ‘facial attack’ at the motion-to-dismiss stage, a plaintiff need only plausibly allege facts establishing each constitutional requirement.") (citing Lewis v. Casey , 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ); Pub. Citizen Health Rsch. Grp. v. Acosta , 363 F. Supp. 3d 1, 11 (D.D.C. 2018) ("[T]o survive a motion to dismiss, [p]laintiffs ‘must state a plausible claim that [they have] suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.’ ") (alteration omitted) (quoting Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (citation omitted)).
"In evaluating constitutional standing, courts ‘must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’ " In re Commodity Exch., Inc. , 213 F. Supp. 3d 631, 650 (S.D.N.Y. 2016) (quoting Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). In addition, when evaluating standing, courts "must assume that the party asserting federal jurisdiction is correct on the legal merits of his claim, that a decision on the merits would be favorable and that the requested relief would be granted." Cutler v. U.S. Dep't of Health & Hum. Servs. , 797 F.3d 1173, 1179 (D.C. Cir. 2015) (citation and internal quotation marks omitted); Hassan , 804 F.3d at 289 (same). "[B]ecause Article III does not ‘permit[ ] suits against non-injurious defendants as long as one of the defendants in the suit injured the plaintiff,’ standing must also be assessed as against each defendant." Knight First Amendment Inst. at Columbia University v. Trump , 302 F. Supp. 3d 541, 556 (S.D.N.Y. 2018) (alteration in original) (quoting Mahon v. Ticor Title Ins. Co. , 683 F.3d 59, 62 (2d Cir. 2012) ).
1. Injury-in-fact
Plaintiff argues that Defendant does not have standing to assert its RCRA counterclaim because Defendant "has not alleged that it has suffered a particularized injury-in-fact." (Pl. Mem. 14.) In support, Plaintiff argues that Defendant "appears to argue that because [Plaintiff] caused or contributed to the RCRA violation that [Plaintiff] has asserted against [Defendant]," Plaintiff is also liable to Defendant and asserts that Defendant's "attempt to bootstrap [Plaintiff's] underlying RCRA claim to confer standing upon itself fails as a matter of law." (Id. at 15.) Plaintiff also argues that Defendant "does not allege that it has suffered an actual injury from any imminent and substantial endangerment resulting from [Plaintiff's] alleged contamination on the MGP Site" and that the NYSDEC has not "asserted that [Defendant] is responsible for the investigation and remediation of wastes from the MGP site." (Id. at 15–16.) In addition, Plaintiff argues that Defendant's "potential liability in the citizen suit filed by [Plaintiff] is not an injury under RCRA sufficient to confer [Defendant] standing to bring its own citizen suit" and that "[t]his contingent liability may afford the Court a basis to allocate liability between [Defendant] and [Plaintiff], but it does not confer standing upon [Defendant] to bring a stand-alone citizen suit." (Id. at 16.)
Defendant argues that it "pleads particularized and personal injury in fact by alleging ... that [the NYSDEC] ‘has acknowledged the migration of [Plaintiff's] coal tar plume from Block 2287 to Block 2277’ " and that " ‘the tar, coal tar, and other solid and hazardous wastes at the MGP Site have migrated from the MGP Site.’ " (Defs Opp'n 15 (quoting Answer 14 ¶ 14).) Defendant asserts that it "has pled both a personal stake in the outcome of the litigation as well as the invasion of a legally protected interest with its allegation regarding the migration of [Plaintiff's] contamination onto Block 2277, a fact which has been acknowledged by NYSDEC and by [Plaintiff] itself." (Id. at 15–16.) In support, Defendant argues that Plaintiff's "RCRA claim does expressly involve Block 2287 and its insistence that it does [not] is simply not credible," and that "without the alleged migration of contaminants onto Block 2287, [Plaintiff] would have no standing to pursue its RCRA claim." (Id. at 16.) Defendant also argues that "if [Plaintiff] has standing [Defendant] must also have standing" because "the purported basis for [Plaintiff's] asserted Article III standing for its RCRA claim is identical to [Defendant's] claim" and, like Plaintiff, Defendant's "standing is based on the resources and money spent and that will be spent in investigating contamination that has and is migrating from [Plaintiff's] Block 2287." (Id. at 17.)
Courts have found that a plaintiff asserting a RCRA claim satisfies the injury-in-fact requirement where the plaintiff shows an ongoing leak of hazardous materials, migration of hazardous materials to the plaintiff's property, and contamination on the plaintiff's property. See, e.g. , Parker v. Scrap Metal Processors, Inc. , 386 F.3d 993, 1003–04 (11th Cir. 2004) (finding that the plaintiff "demonstrated an injury-in-fact by showing that water runoff originating on the defendants’ property caused hazardous substances, such as PCBs and lead, to migrate onto the [plaintiff's] property, where the substances contaminated the soil and eventually made their way to the stream"). Courts have also recognized aesthetic injuries as a basis for standing to assert RCRA citizen suits. See, e.g. , Aiello v. Town of Brookhaven , 136 F. Supp. 2d 81, 106 (E.D.N.Y. 2001) (collecting cases and finding that the plaintiffs had suffered an injury-in-fact and noting that "given the proximity of plaintiffs to the pond and creek, and their obvious interest in the environmental and health ramifications of contamination in those bodies of water, their standing is clearly manifested"). In addition, ongoing costs to clean up or remedy contamination can also constitute an injury-in-fact in the RCRA context. See, e.g. , Clean Harbors Servs., Inc. v. Ill. Int'l, Port Dist. , 309 F. Supp. 3d 556, 563 (N.D. Ill. 2018) ("According to these standards, [the plaintiff] has sufficiently alleged an injury in fact — it alleges it has incurred substantial costs due to the previous contamination of the property and continues to be injured due to the [the defendant's] actions in violation of the Cap and Drain Plan. [The plaintiff's] injury is not the ‘generalized grievance’ Article III intends to deter." (citation omitted)). However, liability for RCRA violations alone may not itself constitute an injury-in-fact sufficient to confer standing. Premier Assocs., Inc. v. EXL Polymers, Inc. , No. 08-CV-3490, 2010 WL 2838497, at *5 (N.D. Ga. July 19, 2010) (rejecting the defendant's argument that the plaintiff's potential liability under the lawsuit constituted an injury-in-fact and noting that the defendant's arguments that the plaintiff should not be able to relieve itself of its own liability under RCRA merely because it filed the citizen suit first "may properly be raised in defense to the RCRA claims" but "do not relate to the question of whether [the defendant] ha[d] standing to assert RCRA counterclaims"), aff'd in part , 507 F. App'x 831 (11th Cir. 2013).
Accepting as true all of the allegations in the Answer, Defendant has not plausibly alleged a legal interest in Block 2277 such that it can claim to be harmed by contamination located there. Defendant does not allege that it presently owns the Refinery Site or Block 2277, cf. Parker , 386 F.3d at 1003 (finding adequate an allegation that the plaintiff's property was contaminated by migration of solid waste from adjacent disposal facility), or that it is otherwise responsible for or affected by any alleged contamination located at Block 2277.
In addition, although Defendant argues in its brief that it is "currently investigating in cooperation with NYSDEC and the City of New York" the alleged "migration of RCRA waste from [Plaintiff's] MGP Block 2287 onto Block 2277," (Def. Opp'n 18), and that it has "standing based on the resources and money spent and that will be spent investigating contamination that has and is migrating from [Plaintiff's] Block 2287," (id. at 17), the Answer does not include any allegations that Defendant is being required to investigate or remediate Block 2287 such that Defendant would have incurred expenses and costs associated with the contamination at Block 2287. The only allegations indicating that any entity faces potential liability in connection with the responsibility to investigate and remediate contamination at Block 2277 are the allegations that the NYSDEC required Plaintiff to conduct investigations and perform remedial activities, (see, e.g. , Answer 14 ¶¶ 15–18), and, as at least one court has found, Plaintiff's potential liability for contamination on Block 2277 does not support Defendant's standing to assert a RCRA claim, see Premier Assocs., Inc. , 2010 WL 2838497, at *3 ("[The defendant] argues that its counterclaims seek only injunctive relief — aimed at properly imparting to [the plaintiff] the liability attributable to it — by requiring [the plaintiff] to remediate the Mendel Site. Whether [the plaintiff] is partially responsible — and thus partially liable — for RCRA violations, however, has no bearing on whether [the defendant] has standing to bring a citizen-suit against [the plaintiff] to ensure that [the plaintiff] bears responsibility for the RCRA violations [the plaintiff] caused.").
Even assuming, however, that Defendant's participation in a "cite characterization" investigation with the NYSDEC is sufficient to establish that it has a legal interest in Block 2277, (see Answer 6 ¶ 51), and that pre-existing contamination on Block 2277 that migrated from Block 2287 is sufficient to establish that Defendant suffered an injury-in-fact, because, as discussed below, Defendant does not allege any ongoing contamination, Defendant's alleged harm is not redressable by the requested relief.
2. Redressability
Plaintiff argues that Defendant's RCRA counterclaim "must also be dismissed for lack of standing because [Defendant] fails to establish that it is "faced with an imminent harm." (Pl. Mem. 17.) In support, Plaintiff argues that Defendant "makes no attempt to identify the imminent and substantial endangerment affecting [Defendant] nor demonstrate how its [c]ounterclaim would redress the purported injury it alleges." (Id. ) Plaintiff also argues that in "ask[ing] this Court to find [Plaintiff] liable for any imminent and substantial endangerment," Defendant is, in essence, "seeking resolution of a wholly past violation that has no purported impact on [Defendant]," and that "RCRA does not afford that relief." (Id. )
Defendant argues that although some courts "have found that an underlying RCRA claim is insufficient to provide standing to assert a RCRA counterclaim because financial harm is not redressable under RCRA, here, financial exposure due to a potential RCRA injunction is not the harm that [Defendant's] counterclaim seeks to redress," but rather "the continuing migration of contaminants from Block 2287, for which [Plaintiff] is undisputably [sic] liable." (Def. Opp'n 18–19.)
The nature of a redressability inquiry "focuses ... on whether the injury that a plaintiff alleges is likely to be redressed through the litigation." Sprint Commc'ns Co., L.P. v. APCC Servs., Inc. , 554 U.S. 269, 286–87, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008) (citation omitted). To satisfy the redressability requirement, a plaintiff must establish that "it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit[ ]." Id. at 273–74, 128 S.Ct. 2531 (internal quotation marks omitted) (citing Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ); see also M.S. v. Brown , 902 F.3d 1076, 1083 (9th Cir. 2018) ("A plaintiff's burden to demonstrate redressability is relatively modest. She need not demonstrate that there is a guarantee that her injuries will be redressed by a favorable decision; rather, a plaintiff need only show a substantial likelihood that the relief sought would redress the injury." (internal quotation marks, alteration, citations, and omitted)); Toll Bros. v. Twp. of Readington , 555 F.3d 131, 143 (3d Cir. 2009) ("Redressability is not a demand for mathematical certainty. It is sufficient for the plaintiff to establish a substantial likelihood that the requested relief will remedy the alleged injury in fact." (internal quotation marks and citation omitted)). The redressability prong does not demand that court-ordered relief completely redress all injury. Larson v. Valente , 456 U.S. 228, 244 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ("[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury."); see also Knight First Amendment Inst. , 302 F. Supp. 3d at 561 (finding the redressability prong to be met and noting that "any relief provided need not be complete").
"The Supreme Court [has] acknowledged that the language in the citizen suit provisions of the Clean Water Act and § 7002(a)(1)(A) of RCRA is identical, yielding the same requirement that plaintiff allege an ongoing or intermittent violation of the relevant statute." Conn. Coastal Fishermen's Ass'n v. Remington Arms Co. , 989 F.2d 1305, 1315 (2d Cir. 1993) ; see also S. Rd. Assocs. v. Int'l Bus. Machs. Corp. , 216 F.3d 251, 254–55 (2d Cir. 2000) ("Thus a defendant's current activity at the site is not a prerequisite for finding a current violation under 42 U.S.C. § 6972(a)(1)(A). The inquiry required by Remington Arms — the same inquiry required by § 6972(a)(1)(A) — is whether the defendant's actions — past or present — cause an ongoing violation of RCRA."); Borough of Upper Saddle River, N.J. v. Rockland Cty. Sewer Dist. #£1 , 16 F. Supp. 3d 294, 318 (S.D.N.Y. 2014) (noting in the context of the Clean Water Act that "to obtain standing, citizen-plaintiffs must allege — and ultimately prove — that the defendant's violation was ‘continuous or intermittent’ at the time when they filed their suit.") (quoting Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp. , 993 F.2d 1017, 1019 (2d Cir. 1993) ). In analyzing the redressability prong of Article III standing, courts have found that where a plaintiff alleged a wholly past harm or asserted a claim for damages already incurred absent an alleged ongoing RCRA violation, the plaintiff's alleged harm was not redressable under RCRA. See Doyle v. Town of Litchfield , 372 F. Supp. 2d 288, 303 (D. Conn. 2005) (finding that "[b]ecause [the plaintiff] [was] no longer ‘proximate’ to the complained-of landfill or [p]roperty, his standing [was] not manifested in any degree" and concluding that the plaintiff lacked standing to assert a RCRA claim); Wademan v. Concra , 13 F. Supp. 2d 295, 302–05 (N.D.N.Y. 1998) (noting that because the plaintiffs who previously owned property contaminated with petroleum and other chemicals were no longer associated with the building, "any remedial action ordered by the [c]ourt would not [a]ffect or assist" them and finding that the plaintiffs lacked standing to assert a RCRA claim).
The Answer does not allege ongoing migration of contamination from Block 2877 to Block 2277, but instead relies on reports prepared by Plaintiff for the NYSDEC that detail an investigation of contamination "near the southeast corners of Block 2277," (Answer ¶ 21), and impacts at "thirty-nine (39) soil borings adjacent to ... Block 2277," (id. ¶ 22). In addition, although the Answer does allege that a "coal tar plume" migrated from Block 2877 to Block 2277, the Answer does not include any allegation that the "coal tar plume," (id. ¶ 14), is currently contaminating Block 2277 or that contamination from the plume is ongoing. Cf. Solvent Chem. Co. ICC Indus. v. E.I. Dupont De Nemours & Co. , 242 F. Supp. 2d 196, 218 (W.D.N.Y. 2002) ("[T]he [p]laintiff's assertion that [the [d]efendant's] allegedly hazardous substances are contaminating [the plaintiff's] site is enough to satisfy the injury-in-fact element of the standing inquiry.").
Because RCRA requires that a plaintiff allege an ongoing or intermittent violation to state a claim, and although Defendant argues in opposition to the motion that its claim is that there is a continuing migration of contaminants from Block 2287, because there are no allegations in the Answer that contamination is continuously or intermittently migrating from Block 2287 to Block 2277, Defendant's requested relief of a declaration that Plaintiff has violated RCRA and is responsible for the investigation and remediation is not available under the statute and will not redress Defendant's alleged harm. See Doyle , 372 F. Supp. 2d at 303 (finding that the plaintiff lacked standing because his "alleged injuries ... [were] past" and not redressable by any RCRA remedy); Wademan , 13 F. Supp. 2d at 305 ("[T]he Supreme Court has held that RCRA, unlike [the Comprehensive Environmental Response, Compensation, and Liability Act (‘CERCLA’)], does not even create the right to collect damages for past clean up costs incurred by private citizens.").
Accordingly, the Court finds that Defendant does not have standing to assert its RCRA counterclaim and that the Court therefore lacks subject matter jurisdiction over the counterclaim, and grants Plaintiff's motion to dismiss the counterclaim.
c. The Court grants in part and denies in part Plaintiff's motion to strike Defendant's affirmative defenses
Plaintiff argues that the Court should strike eight of Defendant's affirmative defenses because they amount to "bald, conclusory, and factually unsupported assertions that fail to satisfy Rule 8(a) [of the Federal Rules of Civil Procedure] notice pleading." (Pl. Mem. 18.) In addition, Plaintiff argues that it "will be forced to spend significant resources through discovery to ascertain the meaning of and — to the extent even supportable — the legal basis for the[se] bald and conclusory affirmative defenses." (Id. at 19.)
Defendant argues that "[n]one of the arguments posited by [Plaintiff] establish that the targeted defenses are legally insufficient and that their inclusion prejudices" Plaintiff. (Def. Opp'n 20.) Defendant also argues that "it is clear from [Plaintiff's] discovery responses that [Defendant's] pleading has not resulted in onerous discovery obligations" because Plaintiff's "blanket response to most of [Defendant's] discovery requests which included a reference to its publicly maintained website of what it deems relevant historic documents and environmental reports." (Id. )
For the reasons discussed below, the Court grants Plaintiff's motion to strike as to the seventh, sixteenth, eighteenth, and nineteenth affirmative defenses and denies Plaintiff's motion as to the fourth, sixth, tenth and twentieth affirmative Defenses. The Court jointly discusses similar defenses.
As to the twentieth affirmative defense alleging that Plaintiff's request for civil penalties is barred under RCRA, Defendant argues that Plaintiff "has already conceded in its opposition brief to [Defendant's] initial motion to dismiss that it has no statutory basis to seek civil penalties and agreed that its claim for such should be stricken from the Complaint." (Def. Opp'n 21 n.5.) In addition, as Defendant argues, Plaintiff withdrew its request for civil penalties in its opposition to Defendant's motion to dismiss the Complaint. (Pl. Opp'n to Mot. to Dismiss 4 n.3.) In view of Plaintiff's withdrawal of its request for civil penalties, the Court denies as moot the motion as to this affirmative defense.
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i. Fourth and sixth affirmative defenses
Defendant argues that its fourth affirmative defense of "waiver, estoppel, laches and/or unclean hands is supported by numerous allegations detailing [Plaintiff's] own conduct in knowingly neglecting to address present and migrating contaminants from its MPG [Site] on and into its Own Block 2287 as well as onto Block 2277 about which [Defendant] has been targeted for responsibility." (Id. at 21 (citing Answer ¶¶ 14, 19–25).) As to Defendant's sixth affirmative defense that Plaintiff's claim is barred by the statute of limitations, Defendant also argues that "whether or not [Plaintiff's] claim is barred by the statute of limitations will also be established through discovery as [Plaintiff] has known full well the condition of the various parcels that form the basis of its RCRA claim for many years." (Id. (citing Answer ¶¶ 14, 19–25).)
Absent a finding that there are no facts Defendant can prove that would allow for it to succeed in showing waiver, estoppel, laches, unclean hands, or that Plaintiff's RCRA claim is barred by the statute of limitations, the Court cannot grant Plaintiff's motion as to the fourth and sixth affirmative defenses. At this early stage of the proceeding, it would be premature to make such a determination. In addition, it does not appear that Plaintiff will be prejudiced by having to engage in discovery and further argument on issues that will be central to proving its claims regardless of whether or not these issues are raised as affirmative defenses.
Accordingly, the Court denies Plaintiff's motion as to the fourth and sixth affirmative defenses.
ii. Seventh and sixteenth affirmative defenses
In addition to arguing that the Court should strike the seventh affirmative defense "asserting that [Plaintiff] has not suffered any injury" as conclusory, Plaintiff argues that the Court should strike the seventh affirmative defense and sixteenth affirmative defense asserting that Plaintiff is equitably estopped from obtaining the requested relief because both affirmative defenses are duplicative of other affirmative defenses asserted in the Answer. (Pl. Mem. 22.) Plaintiff argues that the seventh affirmative defense is too conclusory to provide sufficient notice to Plaintiff and is duplicative of the third affirmative defense which asserts that Plaintiff has not suffered any injury under RCRA section 6972(a). Plaintiff also argues that the sixteenth affirmative defense is duplicative of the fourth affirmative defense of waiver, estoppel, laches, and unclean hands. (Id. )
Defendant argues that its seventh affirmative defense that Plaintiff has not suffered any injury will be established through discovery. (Def. Opp'n 21.) In support, Defendant argues that Plaintiff "is charged by the NYSDEC with investigation and remediation of its MPG [S]ite, including Block 2287 – onto which it alleges with its RCRA claim that [Defendant's] contamination from the Refinery Site is migrating, but [Plaintiff] is already obligated to remediate that parcel regardless of the condition of the Refinery Site and the Refinery Site is not causing any further contamination of Block 2287" such that "[t]he extent of Block[ ] 2287's contamination and migrating contaminants are already implicated by [Plaintiff's] pleading and, therefore, the affirmative defense will not require any discovery outside the bounds already set." (Id. )
Defendant's allegation in the seventh affirmative defense that "Plaintiff's claim is barred, in whole or in part, because Plaintiff has not suffered any injury, directly or indirectly, as a result of the matters alleged in the Complaint" is a more general restatement of the allegation in the third affirmative defense that "Plaintiff has not suffered any injury under RCRA 42 U.S.C. § 6972(a) because the NYSDEC has entered into a Consent Order with [Defendant] and the City of New York for a site characterization investigation relating to Block 2277." (Answer 10, 9.)
In addition, the allegation in support of the sixteenth affirmative defense that "Plaintiff is equitably estopped from obtaining any of the relief sought in its Complaint," (id. at 11), is necessarily included in the fourth affirmative defense of waiver, estoppel, laches, and unclean hands, (id. at 9).
Accordingly, the Court grants Plaintiff's motion as to the seventh and sixteenth affirmative defenses and strikes them as duplicative.
iii. Tenth affirmative defense
Defendant argues that its tenth affirmative defense that Plaintiff has an adequate remedy at law "is supported by [Plaintiff's] already pending lawsuit in this Court at [ The Brooklyn Union Gas Co. v. Exxon Mobil Corp. , No. 17-CV-00045, 2017 WL 81560 (E.D.N.Y. filed Jan. 4, 2017),]" and that "there is not discovery that [Plaintiff] will have to participate in outside the realm of that which is already relevant to its own RCRA claim." (Def. Opp'n 21.)
In response, Plaintiff argues that "the statutory frameworks for CERCLA and RCRA do not overlap," and Defendant's "attempt to substantiate its tenth affirmative defense ... is meritless because RCRA provides remedies that CERCLA does not afford, including injunctive relief and recovery of attorney's fees." (Pl. Reply 9–10, Docket Entry No 57.)
Plaintiff is not automatically entitled to the injunctive relief it seeks in this action and irreparable harm is decidedly a factual issue. See Christie-Spencer Corp. v. Hausman Realty Co. , 118 F. Supp. 2d 408, 420 (S.D.N.Y. 2000) (noting that "[n]otwithstanding the broad powers of RCRA's citizen suit provision, the commencement of a RCRA suit does not automatically warrant entry of an injunction ... [and that] [o]nly if injury is ‘sufficiently likely’ will the balance of harm tilt in favor of injunctive relief") (citing Amoco Prod. Co. v. Village of Gambell, AK , 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) ); Gache v. Town of Harrison, N.Y. , 813 F. Supp. 1037, 1044 (S.D.N.Y. 1993) ("A violation of RCRA does not mean that a permanent injunction necessarily follows. ‘In applying the general equitable standards for the issuance of injunctions in the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of a statutory violation.’ ") (quoting Town of Huntington v. Marsh , 884 F.2d 648, 651 (2d Cir. 1989), cert. denied , 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990) ).
At this stage of the proceeding, the Court cannot conclude that, as a matter of law, Plaintiff can show irreparable harm as required to succeed on its RCRA claim, such that it is entitled to the injunctive relief it seeks and will therefore not have an adequate remedy of law available under CERCLA.
Accordingly, the Court denies Plaintiff's motion as to the tenth affirmative defense.
iv. Eighteenth and nineteenth affirmative defenses
Plaintiff argues that Defendant's eighteenth and nineteenth affirmative defenses are "ambiguous and devoid of any legal or factual support that makes it possible to discern a valid pleading under Rule 8(a)." (Pl. Mem. 19.)
As to the eighteenth affirmative defense, Defendant alleges that "Plaintiff's claim is barred, in whole or in part by release and discharge," (Answer 11), and as to the nineteenth affirmative defense, Defendant alleges that "Plaintiff's claim is barred by the doctrine of assumption of the risk," (id. ).
Defendant does not argue in its opposition that it has plausibly alleged these two affirmative defenses or otherwise address Plaintiff's motion to strike these two affirmative defenses. Having reviewed the Answer for allegations that could further support both affirmative defenses and finding none, the Court finds that Defendant has failed to allege the eighteenth and nineteenth affirmative defenses with sufficient specificity to provide notice to Plaintiff and grants Plaintiff's motion to strike these two defenses.
v. Motion to strike the fifth and ninth affirmative defenses pursuant to the law of the case doctrine
Plaintiff argues that Defendant's "fifth [mootness] and ninth [primary jurisdiction] affirmative defenses both fail as a matter of law and under the law-of-the case doctrine." (Pl. Mem. 19.) As to Defendant's fifth affirmative defense, Plaintiff argues that "the Court previously ruled that [Plaintiff's] RCRA claim is not moot" and that "under the law of the case doctrine, the Court should adhere to its prior ruling." (Id. ) Plaintiff argues that "even if the fifth affirmative defense is not barred under the law-of-the-case doctrine, it still fails because [Plaintiff's] claim cannot be moot as a matter of law." (Id. at 20.) Plaintiff argues that "the administrative action does not encompass all – or any of the relief [Plaintiff] seeks." (Id. ) In support, Plaintiff argues that "only one of the four parcels (Block 2277) that comprise the Refinery Site under which [Plaintiff] brings its action [is] even subject to the administrative supervision of NYSDEC" and asserts that "investigation under that parcel is not being performed under RCRA, for which [Plaintiff] seeks relief in this matter." (Id. (citing 2017 NYSDEC Letter).)
In addressing the ninth affirmative defense, Plaintiff argues that Defendant's "affirmative defense of primary jurisdiction similarly fails." (Id. ) In support, Plaintiff argues that Defendant "previously argued that this Court should dismiss this action so that state regulators could have ‘primary jurisdiction’ over the Refinery Site" and that in denying Defendant's motion, the Court ruled that ‘the problem of inconsistent rulings’ was not present here. (Id. at 21 (quoting Oral Arg. Tr. 36:12-17, annexed to Pl. Mot. as Ex. C, Docket Entry No. 55-5 (alterations omitted)).) Plaintiff argues that "the Court should follow its prior ruling and strike [Defendant's] ninth affirmative defense under the law-of-the-case doctrine." (Id. ) Plaintiff further argues that although the "NYSDEC has informed [Plaintiff] (and other potentially responsible parties, including [Defendant]) that certain parcels comprising the MGP Site and Bushwick Site may be subject to state investigation under the N.Y. State Navigation Law at some time in the future," this notification "does not rise anywhere near the level of a formal administrative proceeding" and that "[t]o date, NYSDEC has not required [Defendant] to remediate the contamination at the Refinery." (Id. at 22.) Plaintiff also argues that "it would be inappropriate for the Court to abstain here on the grounds of primary jurisdiction." (Id. )
Defendant argues that its affirmative defense "asserting the mootness of Plaintiff's RCRA claim is perfectly applicable here where [Defendant] intends to uncover evidence through discovery that [Plaintiff's] allegation of an imminent and substantial endangerment is moot as the NYSDEC is orchestrating the necessary parties’ environmental activities as the various parcels at issue." (Def. Opp'n 21.) Defendant also argues that "[t]he fact that [Plaintiff's] claim of imminent and substantial endangerment survived [Defendant's] motion to dismiss does not eradicate the potential for summary judgment in [Defendant's] favor on this ground." (Id. ) In support, Defendant argues that "[w]hile [Plaintiff's] previous work may have undermined its ability to establish an imminent and substantial endangerment, it does not make the issue established for purposes of this litigation." (Id. at 22.) Defendant argues that although the Court denied its previous motion to dismiss Plaintiff's RCRA claim based on the lack of an imminent and substantial endangerment, "because at that juncture, the NYSDEC had not proceeded with its administrative Consent Orders with the identified PRPs," the Court's prior ruling "does not foreclose the likelihood that, by the trial, the NYSDEC's administrative actions and Consent Orders will render moot both [Plaintiff's] RCRA claim and its attempt to establish and imminent and substantial endangerment." (Id. ) In addition, Defendant argues that "this Court denied [Defendant's] motion to dismiss [Plaintiff's] RCRA claim based on the theory of primary jurisdiction because, at the time, the NYSDEC had not fully engaged in its administrative process regarding the various parcels involved" and that "that may well support this Court's grant of summary judgment based on primary jurisdiction." (Id. )
In response, Plaintiff argues that Defendant "admits that it does not presently have a valid defense of mootness or of primary jurisdiction" and that because "[c]ourts have long held that affirmative defenses cannot be reserved for a future date," the Court should strike the fifth and ninth affirmative defenses. (Pl. Reply 10.)
1. Fifth affirmative defense
Plaintiff appears to argue that because the Court determined that a justiciable issue existed in this action at the motion to dismiss stage, it is impossible for the circumstances to change in a way that would render this action moot. That is not the case. Because an ongoing violation at the commencement of the action is a requirement for Plaintiff to obtain relief under RCRA as a non-Government private party, if Defendant establishes that contamination had ceased migrating from the Refinery Site onto the MGP Site before the commencement of this action, it would be possible for Defendant to succeed on its mootness affirmative defenses. See ABB Indus. Sys., Inc. v. Prime Tech., Inc. , 120 F.3d 351, 359 (2d Cir. 1997) ("To establish a violation of section 6972(a)(1)(A), a plaintiff must establish that the defendant is currently in violation of a ‘permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter.’ " (quoting 42 U.S.C. § 6972(a)(1)(A) )); cf. United States v. Grimmel Indus., LLC , No. 16-CV-1103, 2018 WL 3730856, at *5 (N.D.N.Y. Aug. 6, 2018) (denying motion to strike mootness affirmative defense in a Clean Water Act action because "it is black-letter law that the Government may seek penalties for wholly past violations of the Clean Water Act").
Because Plaintiff may not recover under RCRA for a wholly past injury, the Court cannot find, at this stage of litigation, that there are no facts that Defendant may establish that would render this action moot.
Accordingly, the Court denies the motion to strike the fifth affirmative defense.
2. Ninth affirmative defense
At the March 26, 2019 oral argument regarding Defendant's motion to dismiss the Complaint, the Court determined that there is "no technical expertise necessary for purposes of making a determination under [RCRA]" and denied Defendant's motion to dismiss the Complaint on primary jurisdiction grounds. (Oral Arg. Tr. 36:10–19.) Thus, the Court has already determined that abstention based on the primary jurisdiction doctrine is not warranted in adjudicating this RCRA action. Accordingly, Plaintiff's motion to strike the ninth affirmative defense is granted. See Ariz. Premium Fin. Co. v. Empls. Ins. of Wausau, of Wausau Am Mut. Co. , 586 F. App'x 713, 716 (2d Cir. 2014) ("[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." (quoting Arizona v. California , 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) )); Fed. Trade Comm'n v. Quincy Bioscience Holding Co., Inc. , No. 17-CV-124, 2020 WL 1031271, at *3 (S.D.N.Y. Mar. 2, 2020) (noting "[t]here is no need to litigate the same issue again" and granting the plaintiff's motion to strike an affirmative defense on the grounds that the court had ruled on an issue in a prior order).
III. Conclusion
For the foregoing reasons, the Court (1) grants the motion to dismiss the RCRA counterclaim for lack of subject matter jurisdiction; (2) grants the motion to strike as to the seventh, ninth, sixteenth, eighteenth and nineteenth affirmative defenses; and (3) denies the motion to strike as to the fourth, fifth, sixth, tenth, and twentieth affirmative defenses.
SO ORDERED.