and i believe we are ready to begin with our first case bartlet the honeywell international amended complaint and a room and to state court as we submitted a letter recently indicating the reasons why we believe that no jurisdiction lies with the court  there were any federal issues those were long disposed of when the district court denied plaintiff's request for injunctive relief leaving at least several years ago only the state law common law claims which had been pleaded by the plaintiffs in state court and which had been removed the court that rests diversity jurisdiction why there is not diversity jurisdiction here  we have argued and given details that honeywell itself at least as far as its center of activity or a locus particularly relating to this matter was in syracuse new york notwithstanding that it had been incorporated in in another state so we believe there is no federal jurisdiction either substantive or or in a diversity basis and that the court exercised did not properly exercise its discretion in retaining jurors stiction over the state law claims under ancillary or pendent jurisdiction to the extent you're saying that mere mere presence of a corporation is enough to destroy diversity that we look at more than the place incorporation in the principal place of business when the locus of activity of business activity particularly relating to the particular matter as we indicated in our papers honeywell in all it filings with the state indicated that it's office in syracuse would be the location for contact for formal notices that cetera it's  yes well we were cited two cases relating to that i don't think about it says strong frankly because your questions indicate it's not as strong an argument as the issue that the court jurisdiction as law that the plaintiffs have a right to choose their jurisdiction it was in state court it was removed to the extent that the case impacted any of the remediation activities of point the remain right the remediation finished fact honeywell announced i think it's over two years ago now that it had finished the remediation and then the protects and it was congrats congress's intent through the savings clauses to protect common law causes of action and certainly those savings clauses as we were cited  here in essence alleges that the remediation required by the consent decree didn't have sufficient protections in it to protect your clients against possible contamination so why isn't that the right way to frame the allegations in the this is really about your client's disagreement with the agency's decision and if i understand correctly to go with the g a o to their decision not to require additional testing and the like no our amended complaint was very  carefully crafted leaving aside reading between the lines i mean i can tell you the plain language we went through it very carefully and indeed the court in its lengthy decision to the extent it's citing to our amended complaint it says specifically that what we're complaining of is negligence in the remediation order in the consent decree and in the m plan for example we never in the amended complaint attacked or critiqued the issue of whether gio tubes were used what we said in the amended complaint was that specifically  in the consent decree and in the health and safety plan which was issued was represented by honeywell accepted by the state that the g a o tube system would be a closed system and  in fact that there would be no contamination releases directly from the g a o tubes themselves just perhaps some secondary release from the water it in the summer of two thousand and twelve it became readily apparent to the state and to the residents playing community in the area that there were being direct it was not a closed system there were being direct releases from those  submitted in the court below and i think it's in the record on appeal videotapes and photographs of a pressurized spray contaminated spray rising above the potential tree level  following up on that the honeywell says that in its community health and safety plan that was approved by d c that it acknowledged there it continued to be some  of chemicals and contaminants and that the pumping the sediments into the tubes would minimize the amount of contaminants that are exposed in that there may be some  nonetheless there after i don't i didn't see in the plan itself although it's the plan after the shutdown did seem to require a covering to be placed on the tubes to minimize the odor in contamination it didn't seem that there was any notion that they would be hermetically sealed and that nothing would get through why don't those mentions in the plan suggest that you're taking an overly aggressive position about exactly what was promised in the twenty thirteen planet that you say they didn't abide by we we were very careful in our grafting on the amended complaint that honeywell represented that it would be a closed system in many public meetings many of its releases yes if you look specifically at the consent decree and in the in the health plan it talked about some secondary releases from the water during the de watering plan but not directly from the geo tubes but but leave it leaving that particular issue aside after there was massive contamination and the whole remediation plan was shut down in the summer of two thousand and twelve there was a mitigation plan put forward by honeywell accepted by the state they let them restart on the specific representation that covering tarps basically would at that point which you're correct had not been not been done before because there were these massive releases those would be put over the particular geo tubes  because i think i tend to i didn't see promises that there would be absolutely no contamination released into the atmosphere and when you talk about close system i hear you saying that that means absolutely none would come through but you're making a more basic point which is they promise to cover that you tubes and they didn't do it they didn't write it it was their fall back position they originally said we don't have to cover the geo tubes because they'll be no direct releases from that was belied by the fact that there were massive releases in the summer of two thousand and twelve we had massive illnesses in our community the d e c stepped in stopped that and then ordered a plan to be your right the mitigation plan requiring coverings and the amend it was not planned adopted i see the proposed mitigation measures by honeywell as an additional overmedication plan which looks like a proposal but that was adopted by the d c or e p a yes that in order for them to restart the remediation and start pumping the effluent they they have in fact honeywell proposed that plant it was accepted but the amended complaint alleges and again there's been no discovery on this case at this point we're just that the pleadings they age but the amended claim the complaint alleges in good faith and we think correctly that there was not a complete covering at that point and that stay in paragraph two twenty eight that was observed by one of the plaintiffs that the comprehensive an integrated g o two covering system had not been installed for the majority of the  post two thousand and thirteen if that's the case to you then that they did not properly follow the orders do you need negligence then after that i mean perhaps we would have amended with strict liability we're dealing about very dangerous contaminants here and we certainly i'm just wondering as a matter of the structure yes which is fairly complicated whether  would have been basically we would have to bring out as common law claims leaving aside the possibility of citizens but we brought it to original as common law claims and  actually i'd like to refer to both section one i was seven jay and section one nineteen which specifically addressed the issue raised by honeywell that well we're basically immunized from remediation this isn't part of the original contamination and the like this was part of the remediation and we we cited specifically to the environmental conservation law not for negligence nuisance or in this case trespass so again there's a savings clause in it and i think i understand that but but i'm just wondering whether you then if you were bringing a suit on behalf of these people would you be able to bring it under the federal statute federal law or could you only bring in common really only only common law and i'm a common law lawyer morris that a state lawyer my colleague mr larson is familiar with their procedures for bringing citizen suits notice etc there is a kind of admitting perhaps administrative type remedies but common law remedies are preserved by the savings clauses of one on seven and one nineteen i get all of your form but i'm having a little trouble distinguishing between  what would happen if if your position was that they did everything they were required under the consent decree  figure out which one it was only only the latter from hearing it correctly that it was negligence that failure to perform and conform to the requirements of the consent decree that ok and the mitigation plan or its failure to conform it isn't that they conform but that wasn't enough oh no absolutely not i mean that bad if i understand your confusion because the district court at times in  decision said that's what we said but then it cites to our amended complaint and says of course plan of celebs that there's negligence in the implementation but i'm but looking at the totality of the complaint even though the plaine don't say it i'm going to read between the lines and say well they're really attacking the remedy and perhaps the confusion is that the plaintiffs long before they brought this particular lawsuit i mean some of them were outspoken in public meetings and there was a a wide ranging debate up in the syracuse area there as to what the proper remedy would be however that was decided when the consent decree was signed and judge scotland signed that consent decree and we accepted that we were basically had to accept that remedy at that point but we and our experts carefully looked at the implementation of that consent decree and the mitigation plan and we think in a very rigorous manner it's an eighty two page complaint with exhibit a through z i didn't do this on myself we had to have consultants the carefully go through the consent decree and we think if our complaint if the out well pleaded allegations are accepted that true for as true at this point that this court  correct we we point to three major areas one has to do one has to do with the closed system issue which we've already discussed which if there's perimeter air testing and they discontinued bench tests a little bit more technical but our experts told us and we had a good faith basis we included in the complaint  imprimatur air testing a monitoring that's treated as a remedial measure that is circular requires the responsible party to it here too and not to modify now if i understand you correctly yes it requires a very rigorous perimeter air testing system but that that if but it if there's a consent decree that provides for testing that is prescribed by the consent decree and you were saying that it ultimately became not state of the art and so was an adequate but to conform to your wish honeywell would to deviate from the consent decree is that in korea it's incorrect that that was a characterization by the district court and by honeywell and there may have been a time early on before the consent decree when  publicly we were urging a more state of the yard system that the t o sixteen system or in my reflecting back to another part of the record yeah that had that had been one of the alternative systems with your that the plaintiffs were urging should be used but not but not alleged in the amended complaint we were stuck with a system that they had  that's right i'm just even the way that there can be some confusion based on the fact that they were plaintiffs during the notice and comment period who were challenging various aspects of the consent decree so just making sure i understand the record correctly  the original complaint were also seeking injunctive relief and in that context they they wanted both to enjoin honeywell from transporting and epping waste at the waste bed and from implementing and directing that they implement particular systems but you're not now urging that that's a part of this complaint oh absolutely absolutely not and i think some of the court's thinking maybe was a holdover from early proceedings on the injunction  but there's nothing cited in the amended complaint that the court could find specifically the specific words where we did not fully accept the parameters albi it perhaps deficient in the consent decree in the mitigation plan and then what we did was we had our experts going and say ok we're we're we're we're stuck with this plan now let's see whether they have properly implemented that and among other things we argue that with regard to the g a o tubes that they did not continue where testing or bench testing as they as they call it after they made that decision they represented that they would as we allege in the consent decree they didn't continue that and it kind of slipped through and we ended up with a massive air missions in the summer of two thousand and twelve that's what you're really suffering from having awakened this morning properly act on not under the common law but under the under under the consent agree and circle well the issue is whether common law remedies govern not only to the original pollution issue the original contamination but also applied to a remediation in the context of a circle of consent decree ordered one it's  identify an issue which there isn't a lot of law on and basically that's why honeywell argues that they get a free pass or an immunization if it relates to the remediation but the courts have addressed this new york state cases and some federal cases that the savings clauses which give us common law ram common law remedies not only apply to the underlying contamination but to the remediation show you are depending on the car for essential for the relief that you get oh absolutely but the standard of care there's no tension between the federal and state law because the standard of care in the community health plan in the case of circle as well is that the common law is a duty of care to act reasonably to protect those who are within the target area and in this case unlike you know the gun case beretta case for example the community health and safety clearly our community was the third party intended third party beneficiaries of the community health plan and the consent decree itself there was a duty of care which they have and it's both explicit in the in the circle of law when i was seven  nine and the savings clauses and certainly explicit in state law e c l twenty seven so the cases cited we would argue where federal courts really not in this jurisdiction but in another jurisdiction found some tension between state law remedies and federal is not present here especially since the remediation is done there's no way we can interfere with whatever happened happened at this point we're merely arguing that we were injured which is quite clear certainly we allege it and the d c seeing those bleeds and people going to the hospitals shut down properly remediation the question  is is there a for every wrong is there a remedy and i think the law tries to reach to find a remedy if there is a wrong unfortunately under way from both the state common law morning your honor my name is brian israel and i represent honeywell the plaintiffs catalogue of concerns might be quite compelling in some cases but in this case your honor the plaintiffs have raised these precise concerns over the last half dozen years the missions that were attended to geo tubes they are monitoring system in the risk assessment have all been raised by the plaintiffs to the d c to the united states e t a to the district court into the department of health and in all cases these agencies respectfully listen to the pla concerns analyzers concerns and decided that they were without merit could you focus for a minute on the twenty thirteen order management plan and the representation there that the additional mitigation measures this was after the shutdown occurred because the first measures were not working at that they will include a significantly expand and improve cover system and that will have and  there's a description there will be channel covers and geo tube channel covers various kinds of covers which suggested to me on top of the tubes themselves and the allegation in the complaint in paragraph two twenty eight that in september two thousand and fourteen after that plan i gather was approved by the state and the e p a that the comprehensive an integrated geo tube covering system had not been installed on the majority of the g what's your position was it in fact installed or was it not or was it not a requirement of the consent decree as modified by the o m p well how do you respond yes your honor as the tenth circuit acknowledged the new mexico versus g case superfund remedies are highly complex they're dynamic they're changing and in this case their complexity and yes you're right and here and in this case there were contingency measures that war addenda fight in fact before the remedy was commenced and then there were implemented as part  the odor mitigation plan in two thousand and thirteen but i need to just understand you know did you promise to cover the geo tubes and then not do it no your honor what happened was honeywell implemented a covering system that was implemented at the site over time at the direction of the d c who was on site in the field with honeywell as appropriate so it's not the case that the as the jew to door filled up with the slurry these by the way are very very large geo membrane containers about one the size of two train cars where two million cubic yards of dry slurry are pumped into the geo tubes are about nine hundred seventy nine geo tubes utilized and they're covered as appropriate at the appropriate times you need to allow the water to drain out that's the purpose of the geo tube the water is then treated as collected in the treated but the covering system that was in place was a agreed ation of different technologies and different methods a direction always at the direction of the d c your honor and that was done appropriately as as the e p a found using the odor mitigation plan didn't promise a comprehensive covering system like an additional system of tarps over the g had kind of help i've read it would your your honor it required additional measures including covers and misters and other other techniques and methodology is and those covers were put into place as at the appropriate time they're not it's not it's done appropriately under d c supervision as the jew tubes are filled up but of course you can't you have to and there are also different types of covers that were utilized the a after the odor mitigation plan was implemented and found that all of the methodology was used to protect public health were done appropriately on the face of the plaintiff's complaint and doc in the end there but the complaint which we are bound to this state age to take you know possible allegations is true says that was the plaintiff observed that the comprehensive and integrated you tube covering system had not been installed and recent look at the o m p and it says when will be installed now i understand that it's complex to install it's a large operation and so on but i was concerned at the district court's kind of ready dismissal as plaintiffs were seeking something other than simply compliance with the plan of this kind of allegation which seemed to me much more specific and you know why isn't that enough to allow them to go forward it doesn't seek to impose an obligation it's in conflict with the plan of the country and you say that this was what the plan called for it just as a little more complex than represented and addressed in the allegation because your honor we believe that allegation in two twenty eight taken in the context of the entirety of the complaint is not a plausible allegation because the d c has stated that honeywell complied with the remedy the e p a a year after the order mitigation plan said that honeywell is complying with the remedy in the district court whose obligation it is to enforce this consent decree found that honeywell is in compliance with the remedy so this particular remedy that there were specific findings by the d e c in the e p a with respect with respect to the remedy larger on hand i mean with respect to the covering aspect of it are you just saying there was a general finding of compliance there was a general finding of compliance was a it was a general finding that the error met all the standards that were were quoted to be met and that the remedy was protective of human health of the environment not specifically you're saying that any allegation of noncompliance or negligent compliance with the plan is runs afoul of that and and can't be you know in creates a conflict in the counsel stating that the remedy was being done in a manner that's protective of human health and the environment in the context of the the entirety of this complaint this that allegation and all of the allegations are implausible inappropriate that's a termination be made and just on  the face of the complaint are you relying on additional materials that that would appropriately be the subject of judicial notice i'm relying entirely on the face of the complaint including the sixteen hundred pages that the plate of  mitigation plan and additional steps because it goes back to the conversation we're having earlier about the dynamic nature of a superfund site dynamic nature of a super fun remedy that there wasn't a shutdown in the sense that the remedy was called into question there was a temporary halt to a den a five that for the d c and for honeywell to a den of fi additional measures that could be taken to address odors there was never a concern by the e p a or the c that people were being harmed in fact quite the opposite the e p a upon hearing the plaintiffs conserves rican ducted their risk assessment that's in the complaint and found that there was no harm to the public or to the finding or deck didn't issue a finding that there was compliance with the plan and plaintiffs thought you know they were supposed to be all these covers i didn't see any covers i smells bad stuff and i think i'm getting hurt i'm you know take my kids  emergency room so i'm going after the implementor what remedies are available to such a person in our view your honor if a p r p who is implementing a remediation in this case a four hundred fifty one million dollar cleanup plan fails to implement that remedy that they would not have the benefit of the conflict preemption the conflict preemption that we are arguing stems from as the district court found as the fourth circuit found stems from the fact that honeywell was complying with the law and should not be held liable at state state law for complying with the federal one such a person and then have both state and federal remedies or just the such a person would have would have state remedies potentially and such a person would have honor under one twenty two e six a potentially responsible party is prohibited from undertaking any remedial action without the authority of the president in this case e companies like honeywell to undertake a super fun remedy in to address legacy pollution the as a second circuit has found that's part of the structure of circle a part of that would have let you finish but but so they would have been in violation at the by themselves going without d e c permission or appropriate permission by some the president they would have been in violation had they done something without that sort of approval or permission yes your honor and for good reason because when congress and acted circle they wanted to authorize and enable the environmental agencies experts here to have complete control over the remedy and in some for us perhaps it sounds maybe more is better but more is not always better the technology for instance that the plaintiffs have proposed is that it technology they call it state of the art but in fact it leads to false positives and we in the agency the e p a has it an interest in ensuring that air monitoring is not just comprehensive but also reliable  your honor there was the there's a very per script the first one the burlap example we all think might sound like a good idea but there may be downsides to burlap but he takes my word for using the word of it but the point is your honor that something that might seem like a good idea to us will not be a good idea because there are advantages and disadvantages to every remedial technology every remedial strategy every part of the cleanup not to air quality testing and testing is not is is neutral right in this  scheme that you're describing it's not a remedial measure i respectfully disagree air monitoring is part of the remedial measure inside monitoring i just said doing testing but yes a mentoring testing is part of the super fun remedy for the following reason the an inherent interest ensuring that reliable information is communicated with the public it is not in the e p a is interest or the disease interest to have testing done that's not reliable that can result in false positive false alarms have adverse consequences in the i'm not talking about monitoring after the fact i was looking at the definition of remedy or remedial action which includes monitoring yes required to assure the such actions pretty but you did bench testing at the early stages right and then you changed it was going from the open pit to the geo tubes right yes and there's an allegation that you didn't continue that honeywell didn't continue the full amount of testing that they should have done in addition to that those exact issues were raised by mr larsen in his letter to the e p a in the complaint i direct it a direct the court's attention to appendix ten for six where the e p a responded to exactly the same time you have this is ten forty six of the plaintiff's complaint in the joint appendix thank you during the period of dredging operations there has been no evidence of adverse impacts to human health and extensive air monitoring system has been in operation at the s c a perimeter so skipping since prior to the start of dredging data has been and continues to be collected at multiple monitoring locations continuously during dredging to date the extensive air monitoring data demonstrates that contaminant air concentrations for all parameters of concern have been below conservative levels and that skipping down this further demonstrates that the project is being implemented in a manner which is fully protective of public health this is the e p a responding to plaintiff's counsels on it on behalf of a different client plaintiff's counsels assertions in a letter of notice of intent a citizen sued here to the second paragraph dear mr larson your two letters include numerous in accurate or unfounded statements this is one example and there are many others in the complaint the f a q's from e p a and the department of honeywell was preempted from doing anything other than what it was required to do and should not therefore be held liable for state or damages thank you very much if i may the only action that the plaintiffs could take for the damages that they suffered was really a common law because i'm reminded that citizen suits are not damage actions they're   precisely on that allegation like yes i guess what was there an overall overarching that by and large they they have complied but the you know this is largely a self policing type of system this isn't a command control by the d e c their communications back and forth we you know our people were out there we're the ones who were the policemen in a sense we blew the whistle on these massive releases the in the summer of two thousand and twelve which led the d e c to close it down not it it was information provided by us there were thousands of calls by our people and other neighbors to the d e c hardly line which force t shut down so we were there in the direct line of fire so and also many of our people went to the hospital there are injuries that so we allege it and it's it's well documented the real the real issue is that if it's in the context of a remediation is there a remedy which we may pursue for our damages now again this is just that the pleading stage if a trial presumably honeywell  know we were given a free pass by the p a or the d e c and in albany on this in a very general sense so these allegations of specific injury that the tarp covers for example of the g a o tubes it was a moving target honeywell said initially we could do it but we don't think it's necessary there's only going to be de minimus it's going to cost many more millions of dollars so we're going to keep that as a contingency plan kind of in our in our back pocket will do it if necessary well our plan is where the we're the guinea pigs they were the can hurt is in the mine they were suffering and honeywell said ok so i guess our plan isn't so we're going to do a full cover and the evidence we put in this full luminous record by the way with no discovery that indicates that there was only a ten percent covering that we ran into documents saying that honeywell had back orders for these tarps for these nonpermanent of bull coverings they did not have enough of them there was this delay even after that after they didn't is that in the record that point and i'm referring to the back orders that they were unable to procure the coverage that they have there were back orders by the manufacture but surely that isn't in the plan it is not do a complete covering at that point so it's largely a self policing system it's not like d e c inspectors are out there twenty four hours a day we were injured they have their defenses we just want a reasonable opportunity to try and make our case that they negligently engaged in the remediation process and violated their representations and promises in the consent decree and in the medication plan thank you very much thank you both very well argued thank you for helping us understand the complaint