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Wademan v. Concra

Citation: 29 ELR 20197
(07/06/1998)

The court holds that a husband and wife lacked standing under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Federal Water Pollution Control Act (FWPCA), and the Resource Conservation and Recovery Act (RCRA) to sue the developers of a benzene contaminated office building that allegedly caused the wife's fatal leukemia. The court first holds that the plaintiffs failed to establish standing in the CERCLA claim because CERCLA does not provide the plaintiffs with a remedy. The plaintiffs seek injunctive relief for the remediation of the building and compensatory damages for the wife's medical monitoring costs. Superfund money, however, is not available to compensate private parties for economic harms that result from hazardous substances releases. Similarly, injunctive relief is a remedy unavailable to private litigants in CERCLA actions. Even if injunctive relief were available, the plaintiffs could not show irreparable harm in the absence of injunctive relief because due to the wife's death, she will not return to the building. The court next holds that even if the plaintiffs had established standing, CERCLA's petroleum exclusion requires dismissal of their CERCLA claim. CERCLA excludes petroleum from its coverage, and the plaintiffs assert that benzene, a petroleum derivative, is the source of the wife's injuries.

The court then holds that the plaintiffs' FWPCA claims fail because the FWPCA does not provide a remedy for the alleged injury. An injunction forcing the cleanup of the contaminated building would have absolutely no effect on the plaintiffs because the wife cannot return to work and, therefore, will not be exposed to any pollution that may exist. In addition, the plaintiffs do not meet the definition of a citizen under FWPCA's citizen suit provision. Under the FWPCA, a citizen must have an interest that is adversely affected, but the plaintiffs are no longer associated with the building. The court also holds that even if the plaintiffs had established standing, their FWPCA claim would fail. In order to utilize the FWPCA's citizen suit provision, the complaint must allege a continuing violation of the Act, but the plaintiffs do not contend that the developers are continuing to pollute the building. Furthermore, the plaintiffs allege that the developers have polluted the groundwater beneath the building, but the legislative history of the FWPCA explicitly excludes groundwater from the Act's regulation.

The court further holds that the plaintiffs lack standing under RCRA because any remedial action ordered by the court under RCRA would not affect or assist the plaintiffs. RCRA's citizen suit provision requires an imminent and substantial endangerment to health or the environment. The plaintiffs, however, are complaining of a wholly past injury and violation. In addition, RCRA does not create a right for a private citizen to collect damages. Therefore, having determined that the plaintiff's federal claims under CERCLA, FWPCA, and RCRA must be dismissed, and there being no diversity of citizenship between the parties, the court declines to exercise jurisdiction over the plaintiffs' state-law claims.

Counsel for Plaintiffs
Brian M. Culnan
Iseman, Cunningham, Riester & Hyde
Nine Thurlow Terr., Albany NY 12203
(518) 462-3000

Counsel for Defendants
James J. Barriere
Couch, White, Brenner, Howard & Feigenbaum
540 Broadway, Albany NY 12201
(518) 426-4600