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Prisco v. New York

ELR Citation: 26 ELR 20415
Nos. No. 91 Civ. 3990 (RLC), 902 F. Supp. 374/(S.D.N.Y., 09/14/1995) waste haulers' summary judgment motions denied in part

The court holds that genuine issues of material fact preclude summary judgment on landowners' claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) against waste haulers that deposited waste at a landfill on the landowners' property. The court first holds that the site is a facility for purposes of CERCLA §107(a)(2), because the site contains a landfill and hazardous substances have been deposited there. The court next holds that there has been a release of hazardous substances at the site. The landowners sufficiently alleged that the waste haulers' solid waste contained hazardous substances and the landowners specifically identified what hazardous substances were released. It is immaterial for triggering CERCLA liability whether the preliminary site assessment completely and correctly concluded that no hazardous waste was found at the site, whether the site assessment of the landowners' expert is uninformative and misguided, and whether the federal and state governments never classified the site as a Superfund site or brought official action against the landowners. The mere presence at the site of hazardous substances enumerated in 40 C.F.R. §302.4 triggers CERCLA liability. The court holds that the landowners' activities constitute a removal and, hence, a response under CERCLA, because the landowners' description of their efforts is a prime starting point for determining whether those efforts should be labelled as remedial or removal. Also, the landowners' response actions may have been necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment; the state implied that the landowners' response actions were preventive and temporary; and the urgency with which the state expressed the need for closing the landfill insinuates that closure was a removal action. Whether the landowners' response costs were necessary, however, presents a disputed issue of fact, because it is unclear from the evidence whether the state suspected or knew when it ordered closure that there were hazardous substances at the site. In light of this holding, the court does not address whether the landowners' response costs were consistent with the national contingency plan.

The court next holds that the waste haulers are responsible parties under §107(a)(4). It is undisputed that they transported construction and demolition (C & D) material to the site and disposed of it there. The court rejects the argument of one hauler that the release or threat of release of hazardous substances and the resulting damages were caused solely by a third party. The court rejects the argument of another hauler that because it was licensed by the state and city of New York to collect only garbage and C & D material, not hazardous waste, it cannot be held liable. This explanation does not mean that the hauler could not have deposited hazardous substances at the site, and the hauler has not shown that the release or threat of release of hazardous substances and the resulting damages were caused solely by a third party. The court notes that none of the other private waste haulers offer proof of a third-party defense under §107(b). The court holds that §113(f)(1) does not require a plaintiff to admit its own potential or real liability. And the court grants the landowners' motion for declaratory relief for future response costs, because the landowners have alleged the occurrence of the essential facts establishing their right to a declaratory judgment.

Turning to the landowners' RCRA claims, the court holds that RCRA §7003 does not apply, because §7003 authorizes the U.S. Environmental Protection Agency, not private citizens, to bring a RCRA suit. The court holds, however, that because the complaint's allegations provide for relief under §7002(a)(1)(B) and the complaint sets out facts that support a potentially favorable judgment, the landowners' RCRA cause of action should not be dismissed. The court, nevertheless, denies the landowners' request for reimbursement costs, because in a previous case the court held that RCRA does not authorize a plaintiff in a citizen suit to recover remediation costs. In addition, the court denies both the waste haulers' and the landowners' motions for summary judgment, because a genuine issue of material fact exists as to whether there remains waste in the landfill that threatens to leach into the surrounding soil and water and to create an imminent and substantial danger to health or the environment. The court next dismisses the landowners' Federal Water Pollution Control Act (FWPCA) claim, because the waste haulers demonstrated that their allegedly wrongful behavior could not reasonably be expected to recur. The court rejects one hauler's argument that the landowners did not provide sufficient notice of their RCRA claims, but dismisses the landowners' FWPCA claim against the hauler, because they did not contest the hauler's accusation that it was not given the 60-day notice and delay before the landowners brought their FWPCA claim. The court denies a hauler's motion for summary judgment on the landowners' claim under the New York Freshwater Wetlands Act, because a genuine issue of material fact exists concerning the location of the hauler's dumping. The court denies another hauler's motion for summary judgment on the landowners' nuisance claim, because the waste haulers' knowledge of the nuisance is in question. Finally, the court holds that it has jurisdiction over the landowners' state-law claims, because there remain federal and state-law claims stemming from the same set of operative facts.

[Another opinion in this litigation is published at 26 ELR 20427.]

Counsel for Plaintiffs
Michael V. Sclafani
Reardon & Sclafani
Three Executive Blvd., Yonkers NY 10701
(914) 376-0180

Counsel for Defendant
Gerald A. Greenberger
Sheft & Sheft
909 Third Ave., New York NY 10022
(212) 688-7788