STATEMENT OF JURISDICTION Jurisdiction exists as to Plaintiffs’ amended complaint (Ex. D-22) pursuant to 28 U.S.C. § 1332(d) and as to this petition pursuant to 28 U.S.C. § 1453(c). The CAFA remand order (Ex. A) issued December 10, 2012; thus the Petition is timely. STATEMENT OF THE STANDARD OF REVIEW The Court reviews issues of subject matter jurisdiction and statutory interpretation de novo. Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009) . Thus, pursuant to 28 U.S.C § 1453(c)(1) an order remanding a CAFA case is reviewed de novo. Admiral Ins. Co. v. Abshire, 574 F.3d 267, 272 (5th Cir. 2009) cert. denied 130 S. Ct. 756. Ordinarily the court reviews a remand order for abuse of discretion, but that is a product of 28 U.S.C. § 1447(d)’s bar to review of most non-discretionary remand orders. See Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572 (5th Cir. 2006). STATEMENT OF FACTS NECESSARY TO UNDERSTAND THE QUESTIONS PRESENTED The site. In 1965, Harvey Alumina constructed a refinery for the removal of alumina from bauxite ore. The alumina refinery (“Site”) was situated within what is known as St. Croix’s South Coast Industrial Area (“SCIA”). Comm’r of the Dep’t of Planning & Natural Res. v. Century Aluminum Co., 2012 WL 446086 at *2 (D.V.I. Feb. 13, 2012) (“Century”). The SCIA contains an eastern tract with an oil refinery and a western tract close to the airport with the 1512.182 acre Site. Id.
Finally, in any case, how exactly can this Court parse the facts of record de novo to decide the relationship between the post-2006 structural asbestos-related negligence and the waste issues when there is absolutely no averment or record? The Court mistakenly adopted legislative history disfavored by this Court. Next, assuming, arguendo, Congress did not really intend “an event” to mean an event, and the phrase is ambiguous, how should the phrase be evaluated? “In the absence of any plain meaning of the statutory language, [a court looks] to the legislative history of the statute to determine whether Congress provided any guidance concerning its intent.” World Fuel Corp. v. Geithner, 568 F.3d 1345, 1349 (11th Cir. 2009) (quoting United States v. Fields, 500 F.3d 1327, 1330 (11th Cir. 2007)). However, any history so adopted must be “reliable.” Knepper v Rite Aid Corp., 675 F.3d 249, 259 (3d Cir. 2012). “[T]he authoritative statement is the statutory text, not the legislative history.... Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable on the enacting Legislature’s understanding of otherwise ambiguous terms.” ; see also . . . . Here the court cited what it (and other courts making a similar, incorrect distinction) believed was reliable legislative history of CAFA. Judge Bartle did so for the proposition that Congress voted on this bill after being advised (in the report) that the Committee did not intend continuing environmental tort-like events or “a chemical spills” to be considered “an event” and should be excluded from federal jurisdiction. Based on this intent, he stated, as the lynchpin of his decision:
Defendants contend that, because the complaint a number of years, it is precluded from being classified as an “event or occurrence.” What Defendants fail to disprove, however, is that through the passage of time the release of PCB’s is in essence a continuous event. Though they hardly do so, Defendants could perhaps discuss various aspects of the pollution problem that might have occurred – such as whether an individual company or person failed to notice or attend to a particular situation, failed to deal with new information or some discovery about the leakage, or did not implement a method for dealing with the problem – and use these to argue that the complaint is comprised of more than one event or occurrence. (Emphasis added.) As was true in Allen, in the instant case there is simply no proof whatsoever as to whether this is a single or multiple events. 2. The District Court erred: (1) as a matter of law in proceeding to find jurisdictional facts on remand where plaintiffs have the burden of proof yet failed to submit any facts in the record to support the court’s finding; and, alternatively (2) was such finding clearly erroneous. The Court noted that plaintiffs have the burden to prove the exception to a preponderance -- for example, “that it is more likely than not” that the failure to remediate newly discovered asbestos was “factually” part of a “continuous” event with releases of red mud from a permitted containment area. But what does this really mean? An “exception to CAFA jurisdiction may be likened to ‘a defense’ to jurisdiction. The. . .party urging this defense, must meet its burden to show this defense is adequate and appropriate under the circumstances.” Mississippi ex rel. Hood v. Entergy Mississippi, Inc., 2012 WL 3704935 at *14 (S.D. Miss. Aug. 25, 2012). The Court should not have proceeded to determining the “continuing” nature of the releases absent facts (or even