Opinion
August 26, 1999
Sive, Paget Riesel, P. C., New York City (Daniel Riesel of counsel), for defendant.
LeBoeuf, Lamb, Greene Macrae, L. L. P., Albany, (Thomas S. West of counsel), for plaintiff.
OPINION OF THE COURT
This is a motion of the defendant HUDSON TECHNOLOGIES, INC. for an order dismissing plaintiff's amended verified complaint pursuant to CPLR 3211 (a)(2), (7). The plaintiff opposes the defendant's application.
The amended complaint in this action is based upon the allegation that defendant has released hazardous wastes including dichlorodifluoromethane and tricholofluoromethane from its property in Hillburn, New York which have migrated to and contaminated nearby property including plaintiff's wells which are used to supply drinking water to residents of Rockland County. State claims are included for nuisance, trespass and strict liability and a claim pursuant to the Resource Conservation and Recovery Act 42 U.S.C. § 6901 ET SEQ. ("RCRA"). On the causes of action brought as a "citizen suit" pursuant to "RCRA", plaintiff seeks an order directing defendant to join and participate in the investigation and clean up to be performed at defendant's Hillburn Facility, directing that defendant fund the costs and expenses incurred by plaintiff to date and in the future in connection with the clean-up work to be performed and for costs and attorneys' fees.
3211 (a) (2)
The defendant claims that the Court lacks subject matter jurisdiction over the "RCRA" claims that since federal courts have exclusive jurisdiction over "RCRA" citizen suits, this Court has no jurisdiction to entertain the "RCRA" claims.
The relevant provision of the "RCRA" provides as follows:
"Any action brought under paragraph (a)(1) of this subjection shall be brought in the district court in which the alleged violation occurred or the alleged endangerment may occur." 49 U.S.C. § 6972 (a)(2) (emphasis supplied).
Defendant cites Blue Legs v. United States Bureau of Indian Affairs, 807 F.2d 1094 (8th Cir 1989) and Middlesex County Board of Chosen Freeholders v. State of New Jersey, Department of Environmental protection, 645 F. Supp. 715 (D.N.J. 1986) to support its contention that the federal courts have jurisdiction over "RCRA" claims to the exclusion of the state courts.
The Court finds that the cited cases and their progeny are not in conformity with the application of long standing precedents which interpret federal statutes regarding the exclusive jurisdiction of the federal courts.
In Yellow Freight System v. Donnelly 494 U.S. 820, 823, the Supreme Court citing Tafflin v. Levitt 493 U.S. 455, 458 and Gulf Offshore Co. v. Mobil Oil Corp. 453 U.S. 473, 477-478 noted its consistent holding "that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States". It went on to state that "To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction [citations omitted]". Yellow Freight, supra, 823.
The Supreme Court found that the wording "shall have jurisdiction" in Title VII did not constitute an unequivocal statement by Congress that jurisdiction of the federal courts would be exclusive. In reaching this conclusion, the Supreme Court looked at the wording of the statute and found that it
"contains no language that expressly confines jurisdiction to federal court or ousts state courts of their presumptive jurisdiction. The omission of any such provision in strong, and arguably sufficient, evidence that Congress had no such intent." Id, 823.
While Yellow Freight considered that Title VII's legislative history reflected an expectation by many legislators that they fully expected that most cases would be tried in federal court, such an expectation "would not substitute for a legislative decision to overcome the presumption of concurrent jurisdiction". Id, 824.
Nor was the Court in Yellow Freight persuaded that references in Title VII to specific procedures applicable to federal courts constituted a demonstration of intent to provide for exclusive federal jurisdiction. Id, 826.
The Court finds that this well established principle for the determination of whether exclusive federal jurisdiction exists for citizen suits under RCRA was more correctly applied in Davis v. Sun Oil Company 953 F. Supp. 890; affd. 148 F.3d 606. The Davis court found that there was no express divestiture of state court jurisdiction contained in "RCRA" and that the word "shall" simply constituted a venue provision designating the district court in which a particular action would have to be commenced. The District Court noted that when Congress desires to divest state courts of jurisdiction it uses explicit language granting "exclusive jurisdiction" to the district courts. Id, 895. The District Court noted that "RCRA" does not contain any phrase which is similar to "exclusive".
On appeal, the Sixth Circuit affirmed the District Court's determination noting that "the strong presumption is in favor of concurrent jurisdiction in the state courts". Id, 612. Both the district court and the Sixth Circuit disagreed with the analysis in Middlesex, supra which found exclusive jurisdiction in the federal court.
Accordingly, the defendant's motion to dismiss for lack of jurisdiction of the state court is denied.
Defendant's motion to dismiss plaintiff's "RCRA" causes of action for failure to state causes of action is denied. The injunctive relief sought by plaintiff is only premised upon the allegations that (1) plaintiff's wells are contaminated, (2) the presence of persistent hazardous compounds in the environment, due to defendant, which compounds continue to migrate and threaten the Ramapo Valley sole source aquifer and the public water supply, and (2) recent test results showing an increase in contamination in plaintiff's wells and defendant's monitoring walls.
Defendant's motion to dismiss that portion of plaintiff's claim which seeks past cleanup costs is granted. Meghrig v. KFC Western, Inc. 516 U.S. 479.
The Court will hold in abeyance a ruling on whether plaintiff can assert a claim for present/future cleanup damages under "RCRA" until the date of trial for the following reasons:
(1) The Court has previously found plaintiff states causes of action for injunctive relief pursuant to "RCRA". Accordingly, a determination that present/future damages would not be recoverable would not warrant dismissal of plaintiff's "RCRA" claims.
(2) The plaintiff's complaint contains state law causes of action which seek the identical damages.
(3) The Meghrig Court specifically stated that it did not consider "whether a private party could seek to obtain An injunction requiring another party to pay cleanup costs which arise after an RCRA citizen suit has been properly commenced." [emphasis supplied].